[2025] UGHC 64

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

## CRIMINAL SESSION CASE NO. 010 OF 2024

UGANDA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. MANDE SSALI

## <table> 2. MASAMBA JACKSON: ACCUSED

## BEFORE HON. MR. JUSTICE KAREMANI JAMSON, K

#### **JUDGMENT**

## Introduction.

Mande Ssali and Masamba Jackson (hereinafter referred to as the accused persons) are indicted with the offense of murder contrary to section 188 and 189 of the Penal Code Act cap 120.

It is alleged that Mande Ssali and Masamba Jackson on the 30^th day of April 2019 at Kiboga ward in the Kiboga district with malice aforethought murdered Mubangizi Abdu (hereinafter referred to as the deceased).

#### **Summary of facts.**

The brief facts of this case are that prior to this incident, the accused persons were allegedly known robbers in Kiboga Town who had disappeared after being hunted for by boda boda riders. That on the 30^th day of April, 2019, the accused persons were allegedly seen in kiboga town. That A.1 was seen buying petrol with A.2 who was sighted in a blue jacket with a green polythene bag (kavera). That at around 9:00 pm, the deceased was found at the scene of crime in a pool of blood with several wounds on his head. That a five liter white jelican, a blue jacket and a "kavera" that were allegedly seen with the accused during the day were found at the scene of crime. The accused persons disappeared and were arrested two months later from Mityana district. That upon arrest, the accused denied commission of the offence.

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#### The Burden and Standard of Proof.

The burden of proof in criminal cases is always on the prosecution. The prosecution has the duty to prove each of the ingredients of the offences and generally this burden never shifts onto the accused, except where there is a specific statutory provision to the contrary. (see: Woolmington V D. P. P. [1935] A. C. 462, and Okethi Okale & Ors. V Republic [1965] **E. A. 555).** This is not one of those cases where the burden of proof shifts to the accused to prove his innocence.

The standard of proof is proof beyond reasonable doubt. All the essential ingredients of the offence are to be proved beyond reasonable doubt. This standard does not mean proof beyond a shadow of doubt. See: Miller vs Minister of Pensions [1947] 2 All E. R. 372 Ingredients.

On a charge of murder, the prosecution has to prove the following essential ingredients:

- 1. That death of a human being occurred. - 2. That the death was caused unlawfully. - $3.$ That the death was caused with malice aforethought. - $4.$ That the accused persons participated in the crime.

#### 1. Whether death of a human being occurred

The Prosecution relied on the evidence of PW1 Nabawesi Justine, PW7 Abaho Brian and the postmortem report of the deceased.

PW1 the wife of the deceased, testified that on 30/4/2019 at around 9:00pm, she was informed about the husband's death upon which she went to the scene of crime and found her husband's dead body. She also confirmed that the husband was buried the next day. This evidence was corroborated by the testimony of PW7 a medical clinical officer at Kiboga hospital who examined the body of the deceased and made a post mortem report (Exh. P. 5)

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The fact of the deceased death was not denied by the accused persons.

I am satisfied that the prosecution has proved beyond reasonable doubt that the deceased Mubangizi Abdu is dead.

#### 2. Whether the death was caused unlawfully.

Unless accidental or authorized by law, a homicide is always unlawful. (See Gusambizi $s/o$ Wesonge V Rep. [1948] 15 EACA 65).

The prosecution contends that this was a homicide. The defence of the accused on the other hand is a denial.

From the evidence of PW7 the clinical medical officer, it was established that the body of the deceased had 2 cuts wounds one at the back of the head and the other on the left side of the head. The post mortem report shows that the cause of death was severe head injury.

No evidence was led by the defence to show that the cuts found on the deceased's head were cause by any other means but as a result of being cut and there is no evidence suggesting that the cause of death of the deceased was lawfully caused.

I am satisfied that the prosecution has proved beyond reasonable doubt that the death of the deceased was caused unlawfully.

## 3. Whether the death was caused with malice aforethought

Malice aforethought is deemed to be established from evidence of circumstances of the intention to cause the death of any person or of the knowledge that the act or omission causing death will probably cause the death of some person (**S. 174 of the Penal Code Act**).

In order to determine whether there was an intention to cause death or that the person knew that his act will probably cause death, the court can consider the weapon used, the part of the body targeted, the degree of injury and the conduct of the accused before and after the act. (See: R V Tubere s/o Ochieng [1945] EACA 63).

The head has been established to be a vulnerable part of the body and injuries deliberately inflicted upon it have been held to be intended to cause death or to be accompanied by

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knowledge that they would probably cause death. (See: Mwathi V Republic [2007]2 EA **334).** This means that any attack on the head is done with malice aforethought.

In this case, it was the evidence of PW7 and as reflected in Exh. P5 the post mortem report that the deceased was cut and had 2 deep wounds on the head which resulted into his eventual loss of life. This evidence was not disputed by the defence. It is my considered view that the person who caused the death of the deceased did it with malice aforethought that is, with intention to cause death or with knowledge that his or her acts would probably cause death.

## 4. Whether the accused persons participated in the crime

To prove participation of the accused, the prosecution must lead direct or circumstantial evidence placing the accused at the scene of crime as perpetrator or participant in the commission of the offence.

In this case, none of the prosecution witnesses testified to seeing the accused kill the deceased but the prosecution relied on circumstantial evidence.

I have to consider the evidence of the prosecution together with the defence of the accused, which in effect is a denial. A.1 despite acknowledging knowing the deceased, he denied being responsible for his death. He stated that he was arrested from Lwamata on charges of stealing a motor cycle. Further that in 2019, he was residing in Kibale district where he was cultivating. A.2 also denied the charge against him and denied ever knowing the deceased.

The prosecution led the evidence of PW4 Senkula John who testified that on $30/4/2019$ at 5:00pm, he had seen the accused carrying a 5 liter white Jelican. That A1 was dressed in a blue jacket with grey stripes and the next day when he went to the scene of crime, he found those exhibits of a white 5 liter Jelican and the jacket at the scene of crime. However, during cross examination, the witness stated that by the time he arrived at the scene of crime, the exhibits had already been recovered by the police. This imputes untruthfulness on this witness. It was also never established whether the jelican that this witness saw A1 carrying was the same and exact jelican that was found at the scene of crime.

Further, it was Ssentongo Yasin's (PW5) evidence that when he arrived at the scene of crime the next day, he found a kavera and a jelican of fuel upon which he called the police to pick

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those exhibits. On the other hand, PW1 the wife of the deceased testified to found the said exhibits at the scene of crime on $30/4/2024$ when she found her husband's body.

It follows therefore that since the body of the deceased was picked by the police from the scene of crime on $30/4/2024$ , had the said exhibits been at the scene, the same ought to have been collected by the police on the same day. Instead, it is the prosecution witnesses who allege to have found the exhibits the next day and called the police the next day which facts are quite unbelievable. All other prosecution witnesses testified to having suspected the accused to have been the onee who killed the deceased because the deceased had allegedly put a lot of effort in searching for the accused on suspicion of stealing PW2 Kamya Jackson's motorcycle.

From the evidence of the prosecution, the arrest of the accused was in my opinion largely out of suspicion and merely speculative. The burden on the prosecution is very high to prove the guilt of the accused beyond reasonable doubt. Suspicion alone, no matter how strong cannot take the place of a solid and affirmative proof required on the part of the Prosecution. see DHALAY VS. R (1995 – 98) EA at p. 44.

This is a case where I find that the prosecution did not discharge their duty of proving that the accused persons participated in the commission of this offence. I therefore disagree and depart from the joint opinion of the lady and gentleman assessor who advised me to convict A.1 and acquit $A.2$ .

Consequently, I find both accused persons innocent and hereby acquit them of the offence of Murder contrary to Section 188 and 189 of the Penal Code Act cap 120. They are set free forthwith unless held on other lawful charges.

I so order.

Wain

KAREMANI JAMSON. K **JUDGE** $22/1/2025$

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