[2024] UGHC 859

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CR-SC-0120-2024**

**UGANDA======================================PROSECUTOR**

**VERSUS**

1. **MATO STEPHEN** 2. **KEMIGISHA MOUREEN alias MARIA ACCUSED** 3. **MASEREKA SAMSON**

**BEFORE JUSTICE DAVID S. L MAKUMBI**

**RULING ON SUBMISSION OF NO CASE TO ANSWER**

**BACKGROUND:**

The Prosecution case in this matter is that on the 23rd day of May 2024, Mato Stephen (A1), Kemigisha Moureen alias Maria (A2), Maseseka Samson (A3) and others still at large caused the death of one Baluku Dennis at Matugu Cell in Hima Town Council in Kasese District. It was alleged that the deceased had been found with suspected stolen barbed wire which he could not explain. He was then assaulted by a mob and subsequently killed in the process. It was further alleged that the accused persons had been in their gardens close to the scene and had encouraged the mob to kill the deceased. The matter was reported to the police and the accused persons were arrested.

The body of the deceased was examined and found to have sustained internal injuries to wit:

1. Blunt force trauma to the body and head; 2. Internal head injury characterized by inter-cranial hemorrhage and pressure; 3. Cause of death being inter-cranial hemorrhage and inter-abdominal bleeding.

**EVIDENCE:**

The Prosecution relied upon evidence of a Medical Report admitted in evidence as part of the Agreed Facts in the matter. The medical report received and marked in evidence as Prosecution Exhibit No. 1 detailed the post mortem examination of an unknown person on Police Form 48B. The post mortem examination was done at Kasese Municipal Hospital on 25th May 2024.

The post mortem report outlined external injuries being bruises all over the body and head impressing blunt trauma. The report also highlighted that autopsy had not been done but that the body had multiple head injuries impressing inter-cranial pressure and hemorrhage with cause of death being inter-cranial hemorrhage with intra-abdominal bleeding leading to hypovolemic shock.

In addition to the medical evidence the Prosecution further relied on the evidence of three witnesses who testified in court.

**SUBMISSIONS:**

At the close of the prosecution case the Defence made a submission of no case to answer arguing that the Prosecution had not made out a prima facie case against the accused persons warranting their being put to their defence. The Defence conceded that all the ingredients of murder had been proved by the Prosecution except for participation of the Accused. The Defence argued that none of the evidence led by the prosecution pointed towards the Accused in terms of commission of the offence. The Defence contended that the evidence against the accused was so weak as to not even be considered circumstantial because it was clear that the Accused persons were only arrested as they had been working in the vicinity of the commission of the offence. The Defence further contended that no forensic evidence had been established linking any of the accused to the offence.

For its part the prosecution only implored court to rely on the evidence to make a ruling.

**ANALYSIS OF EVIDENCE:**

In criminal trials, it is trite that the burden of proof is always on the Prosecution and never shifts save for specific statutory exceptions of which the offence of Murder does not qualify.

Section 74(1) of the Trial on Indictments Act Cap 25 provides that upon the closure of the prosecution case if the evidence of the prosecution is found not to be sufficient then the court shall record a finding of not guilty after hearing from the advocates for the prosecution and the accused.

Section 74(2) of the same Act conversely provides that where the evidence of the prosecution is found to be sufficient then the accused is informed of their rights and accordingly given the option to commence their defence.

The sufficiency or insufficiency of the evidence as referred to in Section 74 of the Trial on Indictments Act is what ultimately determines whether or not there is a prima facie case against the accused by the close of the prosecution case.

While the standard of proof criminal trials is proof beyond reasonable doubt the standard for determining whether an accused person has a case to answer is evidence of a prima facie case. It is also trite that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence.

In the case of **Bhatt v R (1957) EA 322**, the East Africa Court of Appeal held that *a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence*.

The standard of proof for a prima facie case therefore may not reach proof beyond reasonable doubt but should also not be based on whimsical evidence and allegations.

To that extent therefore the sum total of the evidence adduced by the close of the Prosecution case must be of such sufficiency that in the absence of any evidence being led in defence of the Accused it would result in a conviction.

The main issue therefore is whether the Prosecution has established a prima facie case warranting the Accused being put to his defence.

In addressing this issue the central elements required to prove the offence of murder flow out of Section 171 of the Penal Code Act Cap 128 which provides that,

*“Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder.”*

This court must therefore consider the following in determining whether each of the Accused persons has a case to answer.

1. Death of a human being; 2. Death was caused unlawfully; 3. Death was caused with malice aforethought; and 4. The Accused person is responsible for the death.

The standard relied upon for proof of death is the case of **Kimweri v Republic (1968) EA 42** where it was held that death may be proved by production of a post mortem report or evidence of witnesses who knew the deceased and attended burial or saw the dead body. In this case, there is a post mortem report (PE 1). However, according to the post mortem report the person that was examined was never formally identified and the report indicated that the identity of the deceased person was recorded as unknown. As concerns evidence of persons who knew the deceased and/or attended burial, there was evidence from witnesses PW2 and PW4 who testified that relatives of the deceased eventually turned up and identified the deceased.

PW2 Happy Christopher, a District Councillor testified that an announcement was made on the radio and that is when the relatives of the deceased came and identified the deceased. PW4 D/AIP Turyaho Christopher, one of the investigating officers testified that the relatives of the deceased appeared after 4 days and identified the deceased.

In my opinion the foregoing evidence of identification left a lot to be desired for purposes of identification. The evidential standard for identification as established by case law requires that identification be conclusively done at post mortem examination or by someone who personally knew the deceased. In this case the post mortem report was inconclusive and the only evidence of identification led by the Prosecution was clearly inadmissible as it was not evidence of persons who had actually identified the deceased and to that extent was hearsay evidence contrary to Section 59 of the Evidence Act. To that extent therefore, it is clear that there was still reasonable doubt as to whether the person claimed by the prosecution as being Baluku Dennis was actually the person that died.

Regarding the unlawful nature of the death it is trite law that any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental, or it was authorised by law (see **Gusambizi s/o Wesonge v R [1948] 15 EACA 65**). The evidence in this regard is derived from the post mortem report (Prosecution Exhibit 1) in which the cause of death was described as inter-cranial haemorrhage with intra-abdominal bleeding. While the post mortem report in its present form would tend to suggest that the deceased met his end in unlawful circumstances, I cannot fail to point out the indication in the report about internal injuries indicating that the autopsy was not done. This in my view automatically begs the question as to how the medical examiner drew conclusions about the cause of death without conducting an autopsy.

With regard to malice aforethought in the case of **Mumbere v Uganda – Supreme Court Criminal Appeal No 15 of 2014**, the Supreme Court held that,

*“The elements of malice aforethought are well set out under Section 191 of the Penal Code Act Cap 120 as follows:*

*‘****Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances—***

***(a) an intention to cause the death of any person, whether such person is the person actually killed or not; or***

***(b) knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.’***

*We also wish to note that this Court in****Nandudu Grace & Another v. Uganda, Criminal Appeal No.4 of 2009****reiterated the ratio in the earlier decision of this Court in****Francis Coke v. Uganda [1992-93] HCB 43****that the existence of malice aforethought is not a question of opinion but one of fact to be determined from the available evidence.*

*We also hasten to add that in determining whether the prosecution has proved malice aforethought, the Court has to examine the circumstances surrounding each case. These circumstances include: (i) the nature of the wounds inflicted; (ii) the part of the body injured; (iii) the type of weapon used; (iv) the conduct of the accused person immediately before and after the injuries causing death were inflicted; and, (v) the manner in which the weapon was used-whether repeatedly or not.”*

The nature of injuries outlined in the post mortem report strongly suggested that the deceased person described in the report met his end in a manner that suggested that the persons who assaulted him did so with deliberate design or with callous indifference about the possibility that death may result. To that extent there was an element of malice aforethought apparent despite the failure to conduct a full autopsy.

This leaves the question of the participation of the respective Accused persons.

According to the available evidence on the record, A1 and A3 were arrested simply because they were in the vicinity of the alleged murder. By all the accounts of the witnesses who testified in court, A1 and A3 were working in their garden and were the only ones who did not flee when the police arrived at the scene. For some reason the police felt that this was suspicious conduct and decided to arrest and charge them. There was not even any evidence that they tried to flee from the scene unlike other persons that police witnesses PW3 and PW4 clearly testified as having witnessed fleeing from the scene. PW3 and PW4 further testified that sticks were collected at the scene of the murder. These sticks were never exhibited in court nor forensically linked to A1 and A3. Furthermore, when it came to A2, it was even worse because the only evidence led by the prosecution was to the effect that PW4 got information linking A2 to the murder. PW4 never testified as to the source or nature of information. It therefore begged the question as to how A2 ever came to be linked to the alleged crime.

What was clear from the prosecution evidence was that A1 and A3 were in the vicinity of the alleged crime lawfully harvesting beans when they were arrested and charged. There was no evidence led at all in terms of persons who witnessed any of the accused persons participate in the murder of the unknown deceased person.

In light of the foregoing, I find that the Prosecution has failed to prove a prima facie case against the Accused persons concerning the alleged murder of Baluku Dennis. This is because it was never proved beyond reasonable doubt that Baluku Dennis actually died. Furthermore, there was no evidence led at all with regard to the participation of any of the accused persons in the murder.

**ACQUITTAL:**

Considering the analysis of this Court above, it is my conclusion in line with Section 74(1) that the Prosecution has not made out a prima facie case against A1, A2 and A3 in this matter.

The evidence led in this matter is so atrociously inadequate that I wonder why the Prosecution saw fit to lead such evidence in a case as grave as murder. The prosecution of any accused person should never be taken lightly more so in capital offences. The deprivation of life and liberty attendant to such offences requires that the Prosecution acts with utmost care and responsibility to ensure that accused persons are not prosecuted based upon whimsical and atrociously inadequate evidence. Such conduct could in some cases result in the state being required to answer for malicious prosecution especially when it is clear that there is little to no evidential basis for prosecution of an accused person.

The standard as clearly established in the Bhatt case cited herein above is that a prima facie case cannot be established based upon a mere scintilla or any amount of worthless, discredited evidence. The evidence in this matter in my view characterizes worthless evidence and never should have been relied upon to pursue a prosecution.

I therefore find A1, A2 and A3 not guilty of the offence of murder and accordingly acquit them. A1, A2 and A3 are all discharged and free to go unless they have other lawful pending charges.

Right of Appeal explained.

Ruling delivered this 10th day of September 2024.

**David S. L. Makumbi**

**JUDGE**