[2025] UGHC 266


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA CRIMINAL SESSION CASE NO 31 OF 2019** 5 **[ODPP CASE NO: KRU-CO-648/2018, POLICE NO: Kru CRB 609/2018]**

# **UGANDA VS MUSINGUZI FELEX AND TWO OTHERS**

10 **BEFORE**: Hon. Justice Nshimye Allan Paul. M.

# **JUDGMENT**

### **REPRESENTATION**

15 Senior State Attorney Semu Joel from the Office of the Director of Public Prosecutions (ODPP) for the State. Adv Gerald Kalanzi for the accused person on state brief.

#### **INTRODUCTION.**

20 The accused, **MUSINGUZI FELEX, MUHUMUZA EPHRAIM ALIAS BLACK AND TUMWESIGYE WILBERFORCE** were indicted on an amended indictment on the charge of **Murder** Contrary to **SECTION 171 & 172 OF THE PENAL CODE ACT CAP 128**.

The particulars of the offence are that;

25 **MUSINGUZI FELEX, MUHUMUZA EPHRAIM ALIAS BLACK AND TUMWESIGYE WILBERFORCE** and others still at large on the 7th day of June 2018 at **Bihendwa Village in Kiruhura district murdered KATTO ROBERT.**

**MUSINGUZI FELEX, MUHUMUZA EPHRAIM ALIAS BLACK AND TUMWESIGYE WILBERFORCE** took plea on 2 rd 30 April 2025. They all pleaded not guilty.

#### **BURDEN OF PROOF.**

It is a principle of law that in criminal cases, the Prosecution has a burden of proving all the ingredients of the offence (**NANDUDU GRACE & ANOR VS UGANDA SUPREME**

35 **COURT CRIMINAL APPEAL NO 4 OF 2009, SECTION 101 & 103 OF THE EVIDENCE ACT CAP 8**).

#### **STANDARD OF PROOF**

It is also trite that in criminal cases the standard of proof requires the prosecution to 40 prove all the ingredients of the offence is beyond reasonable doubt (**See MILLER VS**

# **MINSTER OF PENSIONS [1947] 1 ALLER 372, UGANDA VS MONDAY WILSON HIGH COURT CRIMINAL CASE 22 OF 2017**)

## **PRE-HEARING**

5 The prosecution and defence during the pre-hearing agreed on some facts under **SECTION 67 OF THE TRIAL ON INDICTMENTS ACT CAP 25**. The documents that were agreed upon by both parties were exhibited and made part of the evidence on record as prescribed in **SECTION 67 (3) OF THE TRIAL ON INDICTMENTS ACT CAP 25 and SECTION 57 OF THE EVIDENCE ACT CAP 8.**

The agreed documents are:

- 1. Police form 3a medical examination of **KATTO ROBBERT** dated 28th May 2018 signed by Mwebesa categorized the harm suffered as grievous Harm.. It was exhibited as **PEX1.** - 15 **2.** Police Form 48B, a postmortem report of **KATTO ROBERT** . The form was exhibited as **PEX2**, In the form a medical officer (Dr Kalubi) confirmed on **8th June 2018** that the body of **Kato Robert** was identified by Kakuru venance and the cause of death was stated as **multiple deep cuts leading to hemorrhagic shock.** - 20 **3.** Police Form 24's of the medical examination of the accused persons confirmed that they are all adults and of normal mental status. They were exhibited as PEX3 to PE5.

### **WITNESSES**

25 The prosecution relied on the following witnesses, **Pw1 Mwebesa, Pw2 Dr Kalubi, PW3 DR Njeregeta, Pw4 Tindyebwa Perez, Pw5 Retired IP Mugisha Leo, Pw6 Kakuru Benance.** The defence relied on the accused DW1 **Musinguzi Felix**, **Dw2 Muhumuza Ephraim, Dw3 Tumwesigye Wilberforce.**

### 30 **SUBMISSIONS**

The lawyers made submissions which this court considered. The court considered the evidence on the court record in making this judgment.

#### **PRELIMINARY ISSUE ON LEGALITY OF THE INDICTMENT**

35 Counsel for the accused persons in his written submissions raised a preliminary issue, claiming that the charge pleaded to is not clear since the particulars are not clear and in contravention of section 25 of the Trial on indictments Act. In support of his argument, counsel relied on the case of **UGANDA VS BYANSI PETER HIGH COURT CRIMINAL SESSION 280 OF 2014** in which the trial judge held that "*the presence of* 40 *malicious intent is a mandatory ingredient to prove murder. It must appear prominently in the charge. It differentiates between a charge of murder and manslaughte*r". Counsel argued that the indictment is incurably defective, because it doesn't have the words malice or unlawfully killed . He invited court to find so and release the accused.

## **RESOLUTION OF THE PRELIMINARY ISSUE**

- 5 I have considered the submissions on record; the crux of the preliminary issue relates to the drafting of the Particulars of offence in the indictment that did not contain the words "*Malice aforethought*" but had the word "*Murdered*". The particulars of the offence in the indictment stated that; - 10 **MUSINGUZI FELEX, MUHUMUZA EPHRAIM ALIAS BLACK AND TUMWESIGYE WILBERFORCE** and others still at large on the 7th day of June 2018 at **Bihendwa Village in Kiruhura district murdered KATTO ROBERT.**

In Principle an indictment ought to contain a statement of offence and particulars of 15 the offence necessary to give information as to the nature of the offence as is provided in section 23 of the Trial on Indictment Act Cap 25, which stipulates that;

*"Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is* 20 *charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged."*

The law in section 26 of the Trial on Indictment Act Cap 25 provides the mandatory rules of framing indictments. I will reproduce the first subsections (a) to (d) of this 25 section 26 TIA CAP 25 here below;

### *"26. Rules for framing of indictments*

- *a) The following provisions shall apply to all indictments and, notwithstanding any rule of law or practice, an indictment shall, subject* 30 *to this Act, not be open to objection in respect of its form or contents if it is framed in accordance with this Act* - *b) a count of an indictment shall commence with a statement of the offence charged, called the statement of offence;* - *c) the statement of offence shall describe the offence shortly in ordinary* 35 *language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence, and it shall contain a reference to the section of the enactment creating the offence;* - *d) after the statement of the offence, particulars of that offence shall be set* 40 *out in ordinary language, in which the use of technical terms shall not be necessary; but where any written law limits the particulars of an offence which are required to be given in an indictment, nothing in this*

*paragraph shall require any more particulars to be given than those so required;…….." (bold emphasis mine)*

The rules of framing an indictment require the person framing it to use **ordinary** 5 **language** and avoid the use of **technical terms** as stipulated in section 26 of the Trial on Indictment Act Cap 25.

In the case at hand, the author of the Indictment, while drafting the particulars of the offence stated that the accused "*Murdered Katto Robert*" instead of stating that the 10 accused "*with Malice aforethought unlawfully caused the death of Katto Robert"***.** This is the reason counsel for the accused objected to the indictment stating that it is defective.

I have read the case of **UGANDA VS BYANSI PETER HIGH COURT CRIMINAL SESSION**

- 15 **NO 280 OF 2014**, raised by counsel for the accused in support of his argument that the indictment is defective. In my opinion it is distinguishable from the case at hand because the Trial Judge in the Byansi Peter case stated in her judgement that "*I keenly followed the proceedings and digested the evidence. Even in the absence of a defective charge, I was not satisfied that the prosecution had proved their case* - 20 *against this accused person to the level required for a criminal trial.".* This means that according to Her Lordship, the Trial Judge, considered the summary of evidence and the evidence adduced on record and found it not to disclose the ingredients of the offence of Murder, which strengthened her decision to strike out the indictment. - The 11th 25 edition of Black's Law Dictionary defines "murder" as the unlawful killing of a human being with malice aforethought. In this regard, an indictment in which the particulars of the offence stipulate that "X murdered Y", cannot be defective because in elaborate terms it means that "X while acting with malice aforethought unlawfully killed a human being called Y".

It is my considered opinion that "malice aforethought" is a technical term used to show that a person that was killed had been murdered, in that regard the author of the indictment at hand who used the word "murdered" was still within the confines of the rules in section 26 (d) of the Trial on indictment Act Cap 25 that promote the 35 use of ordinary language that is easily understood by non-lawyers.

In conclusion, mindful of the definition of the word "murder" in Black's law dictionary, I cannot find that the indictment as worded is defective. The objection to the indictment raised by counsel for the accused is therefore overruled.

## **DETERMINATION**

It is a principle of law that the prosecution has a duty to prove all the ingredients of the offence as is stipulated in **SECTION 101, 102 & 103 OF THE EVIDENCE ACT CAP 8** 5 and confirmed in **NANDUDU GRACE & ANOR VS UGANDA (SUPREME COURT CRIMINAL APPEAL NO 4 OF 2009) [2010] UGSC 43**

The question for determination is whether the prosecution has proved all the ingredients of the offence of murder beyond reasonable doubt against the accused

10 person

The prosecution must prove all the ingredients of the offence of **Murder** beyond reasonable doubt. In **MATOVU FRANK & ANOR VS UGANDA (COA CRIMINAL APPEAL NO. 111 OF 2OI8) 2022 UGCA 268** the ingredients of the offence of murder were 15 stated as;

- 1**. Death of a human being;** - **2. The death of the deceased was caused unlawfully.** - **3. The death of the deceased was caused with a malice aforethought.** - **4. The accused participated in causing the death of the deceased.**

#### 20

I will now consider the evidence in the court record in respect to each of the ingredients.

### **INGREDIENT 1**

### 25 **Death of a human being**

The death of a human being may be proved by production of a postmortem report or death certificate or evidence of witnesses who states that they knew the deceased and attended the burial or saw the dead body (see *Uganda v Endrio & 3 Ors High Court Criminal Session 172 of 2016).*

The evidence contained in Police Form 48B, a postmortem report of **KATTO ROBERT**, that was exhibited as **PEX1**, confirms the death of a human being after the body of the deceased was identified by **Kakuru Venance** and examined by **Dr Kalubi**. The postmortem report confirms the death of a human being, I therefore find that the

35 prosecution has proved beyond reasonable doubt ingredient number 1.

#### **INGREDIENT 2**

#### **The death of the deceased was caused unlawfully**

It is the law that any homicide (the killing of a human being by another) is presumed 40 to be unlawful unless it was accidental or authorized by law *(see R v. Gusambizi s/o Wesonga (1948)15 EACA 65, Uganda Vs Bosco Okello [1992-93] HCB 68*).

The evidence contained in Police Form 48B, a postmortem report of **KATTO ROBERT**, that was exhibited as **PEX1** shows that **Dr Kalubi** stated that the cause of death was **multiple deep cuts leading to hemorrhagic shock.** There is no indication that the death was authorized by law or accidental since it was a result of deliberate cuts on

5 the deceased's head**.** I therefore find that the prosecution has proved beyond reasonable doubt ingredient number 2.

## **INGREDIENT 3**

## **The death of the deceased was caused with a malice aforethought**

- 10 This Ingredient requires the prosecution to prove that the death of the deceased was caused with a malice aforethought. Malice aforethought is a mental element which can be established from the surrounding circumstances of the death, the parts of the body injured and the nature of the injuries (see *Uganda Vs Bosco Okello [1992-93] HCB 68*). - 15

The evidence contained in Police Form 48B, a postmortem report of **Katto Robert**, that was exhibited as **PEX1** shows that **Dr Kalubi** stated that the cause of death was **multiple deep cuts leading to hemorrhagic shock.** The deliberate attack on the head of a human being by cutting can lead to death. I therefore find that the prosecution 20 has proved beyond reasonable doubt ingredient number 3.

**INGREDIENT 4**

## **The accused participated in causing the death of the deceased.**

The fourth ingredient that the prosecution is duty bound to prove relates to 25 participation of the accused. I will summarize the evidence on the court record on this matter.

- 1. **P**w4 Tindyebwa Perez, testified that he knows accused 1, he stated that on 18th or 19th May 2018 he was burning charcoal at night he heard a person 30 being beaten calling for help. That Pw4 shouted back that don't kill a person and made an alarm. He later got help and they went to the forest where they found the deceased did not approach him waiting for police. when police came, they recovered a stick which Pw4 identified as that of Musinguzi Felex because it had a special knot in the middle, and he had seen Musinguzi with 35 the stick when they met at Musinguzi's in-law's place. - 2. Pw5 retired Inspector of police Mugisha Leo testified that they went to the scene and found the now deceased in a pool of blood but alive. He had multiple injuries on the head , he also had an injured tongue but could talk. 40 That he recorded a statement from him, in which the deceased stated that Tum, Musinguzi and black attacked him when he was on his way from a bar.

That the statement was signed by the deceased before he died. The statement was exhibited as PEX6.

3. Pw6 Kakuru venance testified that he was present in the hospital when the 5 deceased was talking to the CID police officer making a statement while mentioning the people that cut him.

The prosecution evidence must be weighed against the defence evidence on record.

- 10 - 1. Dw1 Musinguzi felex testified that he did not know the accused before and only learnt of the death after 18th May 2018 - 2. Dw2 Muhumuza Ephraim denied killing the deceased stating that he was going 15 to when he was arrested - 3. Dw3 Tumwesigye testified that on 18th May he was at his place, he has a shop, later he saw police come and arrest him. He denied knowing the deceased. - 20 In my analysis of the above evidence relating to the ingredient of participation, I note that there is no one that saw the accused commit the offence. The offence occurred at night. the only reference to the accused is by the deceased in the statement he made to the police before he died. The statement was exhibited as PEX6. - 25 Pw5 retired Inspector of police Mugisha Leo testified that he recorded a statement from the deceased wherein he stated that it is Tum, Musinguzi and black that attacked him. Pw6 Kakuru venance testified that he was present in the hospital when the deceased was making the statement to PW5 mentioning the people that attacked him. I have also studied the statement that was exhibited as PEx6, in which the 30 deceased states that the people that attacked him were "Tum, Musinguzi and Black". This statement made to a police officer (Pw5) by the deceased while on his death bed in the hospital in the presence of PW6 Kakuru, amounts to a dying declaration. - It is trite that a dying declaration made by the deceased as to the cause of his 35 or her death can be relevant as provided in **SECTION 30 OF THE EVIDENCE ACT CAP 8**, and it can lead to conviction as was stated by the Supreme Court in **MIBULO EDWARD vs UGANDA 1995 UGSC 17.**

### **SECTION 30 (a) OF THE EVIDENCE ACT CAP 8** provides that;

40 *"30. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant.*

*Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving* *evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases-*

*(a)when the statement is made by a person as to the cause of his or her* 5 *death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person's death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of* 10 *the proceeding in which the cause of his or her death comes into question"*

### The supreme court in **TINDIGWIHURA MBAHE V. UGANDA 1987 UGSC 9** quoted in **MIBULO EDWARD vs UGANDA 1995 UGSC 17 stated**

*"The law is that evidence of dying declaration must be received with caution because the test of cross examination may be wholly wanting; and particulars of violence may have occurred under circumstances of confusion and surprise, the deceased may have stated his inference* 20 *from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in the darkness when identification of the assailant is usually more difficult than in daylight. The fact that the deceased told different persons that the appellant was the assailant is no* 25 *guarantee of accuracy. It is not a rule of law that in order to support conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally speaking very unsafe to base conviction sorely on the dying declaration of a deceased person made in* 30 *the absence of the accused and not subjected to cross examination unless there is satisfactory corroboration"*

The supreme court advised that a dying declaration must be received with caution because the deceased cannot be cross examined, it is also key to 35 consider the time of the attack and possibility of mistaken identification of the accused.

The accused in this case are **MUSINGUZI FELEX, MUHUMUZA EPHRAIM ALIAS BLACK AND TUMWESIGYE WILBERFORCE** and yet the deceased in his plain statement 40 exhibited as PEX6 identified his attackers as **" Tum, Musinguzi and Black".**

PW4 Tindyebwa testified that he responded to the deceased call for help when he was attacked, stating that when he went to the crime scene he found a stick that he recognized as belonging to Musinguzi because it had a special knot in the middle and 45 he had ever seen him with it at his in-laws home. This evidence of PW4 in respect to the stick corroborates the declaration made by the deceased that Musinguzi was part of the attackers.

PEX4 the PF24 of Muhumuza Ephraim that was admitted at prehearing states that he 5 is Muhumuza Ephraim alias Black, this identifies the Muhumuza EPHRAIM to also be known as Black, which confirms that the "Black" referred to in the dying declaration of the deceased is Muhumuza Ephraim.

Lastly, it is not possible to confirm who "Tum" referred to in the plain statement of 10 the deceased exhibited as PEX6.

I therefore find that the prosecution has proved beyond reasonable doubt ingredient number 4 against **MUSINGUZI FELEX and MUHUMUZA EPHRAIM ALIAS BLACK.**

15 The prosecution has not proved beyond reasonable doubt ingredient number 4 against **TUMWESIGYE WILBERFORCE.**

# **ASSESSOR'S OPINION**

The accessors gave a written joint opinion wherein they recommended to court that 20 the accused persons be acquitted. I do not take their recommendation, because they did not consider the declaration of the deceased contained in the plain statement exhibited as PEX6.

### **CONCLUSION**

- 25 I find that the prosecution has not proved beyond reasonable doubt all the ingredients of the offence of Murder contrary to **SECTION 171 & 172 OF THE PENAL CODE ACT CAP 128**, that they are duty bound to prove against **TUMWESIGYE WILBERFORCE.** - 30 I acquit the accused, **TUMWESIGYE WILBERFORCE** on the charge of Murder of **KATTO ROBBERT** contrary to **SECTION 171 & 172 OF THE PENAL CODE ACT CAP 128.**

I order Prison authorities to release **TUMWESIGYE WILBERFORCE** from custody in respect to this charge, for which he has been acquitted.

I find that the prosecution has proved beyond reasonable doubt all the ingredients of the offence of Murder contrary to **SECTION 171 & 172 OF THE PENAL CODE ACT CAP 128**, that they are duty bound to prove against **MUSINGUZI FELEX** and **MUHUMUZA EPHRAIM ALIAS BLACK.**

I convict the accused, MUSINGUZI FELEX and MUHUMUZA EPHRAIM alias BLACK on the charge of Murder of KATTO ROBERT contrary to SECTION 171 & 172 OF THE PENAL CODE ACT CAP 128.

$348$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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NSHIMYE ALLAN PAUL M. **JUDGE** 07-05-2025

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