[2023] UGHCCRD 178

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### HOLDEN AT CRIMINAL DIVISION

# **CRIMIMINAL SESSION CASE NO.221 OF 2020**

**......... PROSECUTOR UGANDA ....................**

#### **VERSUS**

**MUGARURA WILLY ...................................** .. ACCUSED.

### JUDGEMENT

## **BEFORE:HON. JUSTICE ALEX MACKAY AJIJI**

The accused in this case is indicted with two counts namely; murder c/s 188 and 189 and Arson $c/s$ 327(1) of the Penal code. It's alleged the accused and other at large on the 26^th day of September 2019 at Kitantale Zone 11, Nakawa Division in Kampala District and willfully set fire in the building of Kyaze Dan and caused the death of Kyazze Dan and Namutebi Racheal.

The accused was examined on police form 24 which disclosed that he was an adult of sound mind. At the trial prosecution relied on police Form 48C, postmortem report of the deceased and PF24, medical examination of the accused person.

Burden of proof is on the prosecution to prove the case beyond reasonable doubt. It does not shift to the accused during the trial.

The prosecution is represented by counsel Wanamama While the accused is represented by Counsel Kumbuga on state brief.

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The accused was arraigned and he pleaded not guilty.

Article 28(3) (a) of the 1995 constitution of Uganda as amended provides that every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty.

The law states that once an accused pleads not guilty, the burden shifts to the prosecution to prove the charge against him or her. The prosecution has the burden of proving the case against the accused beyond reasonable doubt as seen in Woolmington v D. P. P. [1935] AC 462. Held the burden of proof lies on the prosecution.

The burden however does not shift and the accused can only be convicted on the strength of the prosecution case and not because of the weakness in his defence as held in Ssekitoleko v Uganda [1967] EA 531. However proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, as in Miller v Minister of pensions [1947] 2ALLER 372. However the burden of proof lies on the prosecution to prove not only the fact the offence was committed but was committed by the accused.

For the accused to be convicted of murder in count 1, the prosecution must prove each of the following essential ingredients beyond reasonable doubt as in the case of Uganda vs. Aurien James Peter (crim.case No.12 of 2010)) [2010] UGHC 102

- Death of a human being occurred $1.$ - The death was caused by some unlawful act $2.$ - That the unlawful act was actuated by malice aforethought $3.$

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That it was the accused who caused the unlawful death

$4.$

#### 1. Death of a human being occurred.

Death, may be proved by a production of a post mortem report(PEX1) or evidence of a witness that saw the dead body. In the instant case the prosecution adduced a post mortem report dated 03/10/2019 prepared by Dr. Male Mutumba W pathologist at Kampala Capital City mortuary, at the request of D. SGT Opio. This report was admitted during the preliminary hearing and was marked P. EX1. The body was identified to him by a one Katamba Samuel a brother to the deceased. Therefore there is no doubt that Kyazze is dead.

### 2. The death was caused by some unlawful act

It is the law that the killing of a human being by another is presumed to have been caused unlawfully unless it was accidentally caused or it was authorized by the law. As in the case of R V Gusambizi s/o Wesonga (1948) 15 EACA 65).

In relation to the report (P. EXH 1) made by Dr. Male Mutumba. W on general observation. That the body was brought wrapped in bed sheets and had closed dressing with crepe bandages, gauze cotton and Vaseline gauze all over the head and torso except for the face, anus and external genitalaia. The upper limbs also had closed dressing, but the lower limbs had closed dressing involving only the right thigh lower and leg and only the left leg and there were septic burns all over the areas with the dressing as exemplified by greenish /yellow discoloration of the burn wounds. Therefore the burning of the deceased does not qualify to be a lawful act. Hence death of Kyazze was unlawfully caused. The defence does not refute this ingredient, therefore the prosecution has proved beyond reasonable doubt that the deceased was unlawfully killed.

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#### . That the unlawful act was actuated by malice aforethought $\mathbf{3}$

Malice aforethought is defined by section 191 of the penal code Act as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person. The question is therefore whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. Hence all this can be deduced from circumstantial evidence as in RV Tubere s/o Ochen(1945) 12 EACA 63)

Malice aforethought being a mental element is difficult to prove by direct evidence. Courts usually consider first, the nature of the weapon used. Secondly court considers the part of the body of the victim that was targeted. In this case it was the head which is a delicate organ of the body which contains the brain. The prosecution relied on the P. EXH 1(Post mortem report) which showed that there were septic burns all over the areas with the dressing as exemplified by greenish /yellow discoloration of the burn wounds. Therefore as seen all the body was burnt by fire caused by the accused. In this scenario, this proves that indeed the accused had malice aforethought. The defence does not contest this ingredient Therefore it has been proved beyond reasonable doubt that indeed the accused had malice aforethought.

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#### That it was the accused who caused the unlawful death $\overline{4}$

There should be credible direct or circumstantial evidence placing the accused at the scene of the crime as an active participant in the commission of the offence. The testimonies in this case clearly rest on both direct and circumstantial evidence; PW 3 testified he knew the accused, that he came to know him on the 26/09/2019 as Mugarurua willy after the file had been allocated to him. Upon receiving the file, he proceeded to interview the suspect in custody over the 3 allegations. The suspect admitted having had a love relationship with the deceased Namutebi and had lived together for two years. He also admitted having had a troubled relationship with the deceased and also admitted having had domestic violence. He also admitted that they had separated and he took away his twins Nakato and Babirye from the deceased. However after the separation there were attempts for them to reconcile which failed and this upset him. He however denied having knowledge of the relationship of the two deceased persons. But admitted having confronted a one Kyazze Dan alias Rasta who used to ask him questions like how the twins were, which used to annoy him. He admitted that on that fateful night, 25/09/2019 he was at his home with the lights on when the night patrol team, who included Mugamba Wabwire and Birungi went to his house and later on arrested him. However he denied having been out and allegedly fleeing from the scene of the incident of Arson and burning of people. He also denied the items, a piece of soap and sponge which were got at his door way by the patrol team during their pursuit of him alleging that he had used the same for washing off the combustible material from his hands and body. He acknowledged his statement by signing reading back to in Luganda. PW 4 Mugambe Eric testified he knew the accused and the deceased. That on the 26/09/2019 while in patrol, in the village I Kitintale. He heard an alarm and so he ran together with Ivan Wabwire leaving the defence secretary behind.

$\mathsf{S}$

Before reaching the place ,they met someone running from where the alarm was being made. Since he had a torch and he shone it on him and he saw the accused. The accused changed the route and entered the fence of Joseph's lodge. They entered the fence of josephs lodge but he jumped and entered the fence of Jehovah church. They then went back to the place the alarm was being made from, and found that the neighbor of the deceased called Isma had broken into the house of the deceased persons and was trying to put off the fire by pouring water but the fire was too much. They found the deceased persons were burnt but still alive. They then went to the home of the accused person and found the place was smelling petrol and he had just bathed. They called him and he refused to get out.

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During cross examination he stated that the accused person was putting on something resembling a truck suit. He was about 10 meters away from him when he torched at him.

PW5 Wabwire Ivan Testified that he knew the accused person, that on that fateful day he was one of the persons on the patrol, and when they heard the alarm they ran to the direction the alarm was coming from and they saw a man running approaching the guest house and when they torched at him, and recognized him as the accused he ran and entered Jehovah witness church. When they approached the place the alarm was coming from, they saw the house on a blaze of fire and found two people had been burnt badly. They then proceeded to the home of the suspect, and they requested him to come out but he refused. However outside his house were petrol components and a scrab. Later the police came and took the accused. When asked if he knew Nalongo he replied saying that it was none of his business and he had warned them that one day he would do something bad to them.

During cross examination he testified that the accused was wearing a jacket.

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To disapprove the prosecution evidence, the defence relied on the evidence of the following witnesses Mugarura Willy (DW1) who denied the allegations, he testified that he had had a disagreement with Nalongo and so she reported to LC1 chairperson. Further that he did not know Kyaze Dan but he was told he took his wife. He was just picked from his home at 1:00 am by the defence and chairman, he refused to open the door until 15 police men and armed men came and took him to Kitintale police.

Where prosecution is based on the evidence of identifying witnesses, the court must exercise great care so as to satisfy itself that there is no danger of mistaken identity. As in Bogere Moses and anor v Uganda, S. C Cr. Appeal No.1 of 1997.

However the conditions favoring correct identification have been laid down in the case of In the case of Abdullah Nabulere and anor v Uganda Cr, Appeal no.9 of 1978 as follows:

- Whether the accused was known to the witness at the time of the $1.$ commission of the offence - The condition of lighting in that place $2.$ - The length of the time the witness took to identify the accused $3.$ - $4.$ The distance from which the witness identified the accused.

PW 4 Mugambe Eric testified he knew the accused and the deceased. That on the 26/09/2019 while in patrol, in the village I Kitintale. He heard an alarm and so ran together with Ivan Wabwire leaving the defence secretary behind.

Before reaching the place, they met someone running from where the alarm was being made. Since he had a torch and he shone it on him and he saw the accused. Hence he was able to identify the accused with the help of a torch. To corroborate this PW5 Wabwire Ivan that on that fateful day he was one of the persons on the patrol, and when they heard the alarm they ran to the direction the alarm was coming from and they saw a man running approaching the guest house and when they torched at him, they recognized him as the accused, he ran and entered Jehovah witnesses church. I therefore find that Pw4 and Pw5 properly identified the accused person using light from the torch. Further the fact that when they proceeded to the home of the suspect, they found the place smelling patrol and outside his house were petrol components and a scrab. This therefore confirms that indeed the accused was behind the burning of the deceased persons.

As regards the offence of Arson in count 2, under section 327 (a) of *The Penal Code* Act, Arson is committed by any person who willfully and unlawfully sets fire to any building or structure, whether completed or not. For the accused to be convicted of Arson, the prosecution must prove each of the following essential ingredients, beyond reasonable doubt as cited in the case of Uganda versus Asobasi Oloki-Amba Crim. Session No.0025 of 2018 as follows;

- 1. Setting fire to a dwelling house. - 2. The fire is set unlawfully and intentionally. - 3. The accused set the fire.

To prove that fire was set to a dwelling house, there must be evidence establishing the fact that a dwelling house caught fire and that it was as a result of a deliberate

act and not accidental. PW 4 Mugambe Eric testified that when they then went back to the place the alarm was being made from, and found that the neighbor of the deceased called Isma had broken into the house of the deceased persons and was trying to put off the fire by pouring water but the fire was too much. They found the deceased persons were burnt but still alive. To corroborate the evidence of PW4, PW5, Wabwire Ivan testified that When they approached the place the alarm was coming from, they saw the house on a blaze of fire and found two people had been burnt badly in agreement with the assessors I find that this element has been proved beyond reasonable doubt.

Proving that the fire was set unlawfully and intentionally requires evidence to show that the house was deliberately set alight, without justifiable cause. The word wilfully is defined in the Black's Law Dictionary as "voluntary and intentional, but not necessarily malicious." The word *unlawful* is defined in the same dictionary as "violation of law, an illegality." Unlawful is also said to include moral turpitude. There must be evidence which establishes that the assailant either should have intended the house to take fire, or, at least, should have recognized the probability of its taking fire and was reckless as to whether or not it did so. It requires proof of a deliberate act of setting fire or in the alternative, conduct which consists of failing to take measures that lay within the power of the accused to counteract a danger that he himself or herself created of a fire breaking out or evidence establishing that the risk of fire is one which would have been obvious to a reasonably prudent person, even if the particular accused gave no thought to the possibility of there being such a risk.

In the instant case, there is nothing to suggest that the fire was caused accidentally by the deceased himself. Considering that his house had been seen locked and the

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door had to be forced open before the rescuers could gain access and also when the police went to the accused's place, they had to force him to open his door which suggests that the act of burning the deceased persons was intentional. In agreement with the joint opinion of the assessors, I find that the prosecution has proved beyond reasonable doubt that the fire was set unlawfully, willfully and intentionally.

Lastly, the evidence implicating the accused in setting the fire must place him at the scene of the crime. He denied the offence and set up an alibi. The prosecution relies on the same circumstantial evidence as that implicating him in the commission of the offence of murder in the $1^{st}$ count and Arson in the $2^{nd}$ count respectively.

I therefore find that the indeed there is direct evidence and circumstantial evidence implicating the accused in the commission of the crime.

In the final result, the evidence directly points to the accused's participation in the above offences and in agreement with the assessors, I find that the prosecution has proved all the essential ingredients of the offences beyond reasonable doubt and I hereby convict the accused person for the offence of murder c/s 188 and 189 of the penal code Act and arson c/s 327 (a) of *The Penal Code Act* preferred in count two.

| Dated at Kampala this | | 10 ^th of Mary | 2023 | |-----------------------|--|--------------------------|------|

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**ALEX MACKAY AJIJI**

JUDGE