[2019] UGHC 86

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT MASINDI**

#### HCT-04-CR-SC-0091/2016

# UGANDA::::::::::::::::::::::::::::::::::: **VERSUS** MWESIGWA JOHN & 3 OTHERS::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE ANNA B. MUGENYI**

#### JUDGMENT

The accused persons were charged with three counts of murder, aggravated robbery and attempted murder. The allegations against them are that with intention to cause death they murdered Mwebaze Rashid and robbed him of a motor cycle and attempted to murder Mwesigwa Wilson. The accused denied committing all the offences.

#### **Ingredients of murder**

- That a person died. - That the death was unlawful. - That the death was caused with malice aforethought. - That the accused person caused the death or participated in causing the death.

#### Ingredients of attempted murder

- Intent to cause death - Overt act done to fulfil intent to cause death - The accused are responsible

#### Ingredients of aggravated robbery

$\mathbf{1}$

- . Theft - . Theft with violence - . Use of a deadly weapon - . Accused is responsible

#### COUNT 1. MUROER OF MWEBAZE RASHIO

## A person died:

Prosecution relied on the evidence of PW1, PW2, PW3 and PW4 who stated they saw the dead body of the deceased and participated in his burial. Prosecution also relied on Police Form 48 B the post mortem report which confirmed death of Mwebaze Jimmy. The defence did not contest this ingredient and it is therefore proved.

#### Death was unlawful:

The law is that all homicides unless excused are unlawful (Uganda v. Kulabako Night Jeniffer Cr. See. 61/1991 (unreported). According to the post mortem report the deceased was cul several times on the head and other parts of the body and was found dead the next day. There is no evidence that this death was accidental or excused. The ingredient was proved.

## Oeath was caused with Malice aforethought

The law was stated in section 191 (a) of the Penal Code Act. Malice aforethought is inferred from the weapon used, body part targeted, number of injuries and conduct of accused during and after the offence. Prosecution relied on the post mortem report which showed the deceased's head had a wide cut on the forehead about 10cm x 3cm penetrating into the skull bone to infer malice aforethought. This ingredient was not contested by the defence and on basis of that evidence this ingredient was proved.

#### Participation of accused:

The prosecution adduced the evidence of PW2 who testified that he was with the deceased during the night the offence was committed. PW2 stated that he was able to identify the accused persons because he knew them very well and he saw them using

,

the moonlight that fateful night. He said when the accused persons stopped them as they rode their motor cycle, 41 John got hold of him while A2 Mwine Julius got hold of Mwebaze Jimmy the deceased person. He said A3 Pascal asked them to choose between life and the motor cycle while A4 Katushabe was holding something like a gun and pointed it to them. PW2 told Court that Pascal cut him on the cheek with a panga and he screamed. He asked Pascal "why are you killing us we are Agaba's children and Pascal said "John they have recognized us" and he then cut Mwebaze with a panga while Mwine was holding Mwebaze. PW2 stated that John then cut him in the head with a panga and he fell down and became unconscious. The scuffle took about 20 minutes and although he made an alarm no one came to their rescue. ln cross-examination, PW2 testified that the distance between him and the deceased and A4 who was holding something like a gun was approximately one meter.

A3 and A4 denied participation in the murder and set up the defence of alibi to prove they were not at the scene of the crime. A1 and A2 denied being at the scene of crime although they did not adduce any evidence to prove their whereabouts on the fateful day.

The main question in this case is whether PW2's identification of the accused persons is credible enough to place them at the scene of crime and rule out the possibility of mistaken identity or disprove the accused's defence of alibi. I do not find it necessary to consider the evidence of the other prosecution witnesses because they were not present at the scene of crime when the incident took place. lam also alive to the need to be cautious with the evidence of a sole identifying witness and the need to ensure that conditions of identification are favourable before a conviction can be secured.

The test of correct identification was outlined in Abdala Nabulere & Another vs Uganda Crim. Appeal No. 9 of 1978 where it was held that:

"The court must closely examine the circumstances in which the identification was made. These include the length of time the accused was under observation, the distance between the witness and the accused, the lighting and the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. lf the quality is good then the danger of mistaken identity is reduced. The poorer the quality, the greater the danger."

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PW2 stated that he knew all four accused persons very well and he saw them himself on the fateful night. He said there was moonlight and light from the head lamp of the motor cycle which enabled him to see the accused who were all wearing gomesis. He said that A4 held something like a gun which he pointed at them. He stated that the incident took about twenty minutes and when A3 cut him on the cheek he asked him.why are you killing us we are Agaba's children and A3 (Pascal) said "John they have recognized us' and proceeded to cut the deceased with the help of A2 who held him down. Al cut pW2 on the head and he fell down and lost consciousness. ^I

^Ifind the evidence of PW2 credible and of good quality. lt places the accused persons at the scene of crime and discredits the defence of alibi set up by A3 and 44. The evidence of DWS and DW6 is therefore rendered doubtful and destroyed given the believable evidence of PW2 who appeared firm and confident as he gave his testimony. Further, it is notable that DW6 stated different times that she saw A4 in his room and yet during that time she stated he was at his bar. Neither did she sleep in the same room with him to be able to know his movements clearly on the fateful day. lt is also notable that DWs claimed she was the wife of A3 but did not avail any evidence to prove this fact. while A3 claimed he was watching television with his family from 7.30 pm, she claimed she was watching a movie with him at the time the offence was committed. The said inconsistencies notwithstanding, the evidence of PW2 which I found credible render the testimonies of the said two witnesses unreliable.

ln submissions counsel for defence submifted in respect of the weakness of the evidence of PW2 whose testimony he stated was tainted with inconsistencies and contradictions and lacked corroboration. I find the alleged consistencies in the evidence of pw2 very minor and do not go to the root of the case. counsel for the defence submitted to the effect that PW2 lost consciousness and his evidence should not be believed. However, PW2 lost consciousness after identifying the accused persons and that evidence was lefl intact. This court is also of the view that the testimony of PW2 made on oath in this cou( is more credible than that he made in his police statement, more so because it was made

days after he had recovered consciousness from the incident and it was possible he could have forgotten exactly what happened.

All in all, I find the prosecution has proved this ingredient beyond reasonable doubt. The prosecution has discharged its burden of proving that the accused committed the offence of murder of Mwebaze Jimmy and are convicted of the same accordingly.

## COUNT 2. AGGRAVATED ROBBERY

## There must be a theft

PW2 stated that he and the deceased were riding a motor cycle when the incident happened but he did not have the motor cycle anymore. The absence of the motor cycle to date only proves that the same was stolen. This ingredient was not contested by the defence and has been proved.

## Theft was done with violence

PW2 stated that the accused used pangas to cut them. The post mortem report and Police Form 3 in respect of PW2 indicated the deceased had severe injuries that penetrated the skull while PW2 suffered grievos harm caused by sharp objects. The defence did not contest this ingredient and the same has been proved.

## Deadly weapon was used during the robbery

PW2 testified that the accused used pangas to cut him and the deceased on the fateful night. The defence did not contest this ingredient and it is therefore proved.

## Accused is responsible

R tilFh'RlrE ^o r

PW2 testified he and the deceased person had a motorcycle on which they rode to go and pick their father, Mbabazi Levi, from Kagadi. When they were stopped by the accused persons, 41 got hold of him while A2 got hold of the deceased; and A3 asked them to choose between life and the motor cycle. A4 was holding something that looked like a gun and was pointing it at them. PW2 testified that he saw the accused who he had known for a long time using moonlight. The distance between PW2 and all the accused was close enough for him to identify them. As earlier held, I find the conditions of identification favourable and I am satisfied that the identification of the accused places them at the scene of crime.

When PW2 was cut by A3 and 41 he lost consciousness and only recovered after some days. He stated that he did not have the motor cycle to date. PW2 also stated that he did not have any grudges with the accused persons and this was not controverted by the accused themselves. A1 and A2 did not convince this Court about the legitimacy of their whereabouts on the fateful day, and A3 and 44 who set up defences of alibi which were destroyed by the credible evidence of PW2 did not mention any existences of grudges that could have possibly led to the attack.

To this Court, circumstantial evidence adduced by the prosecution shows that the motive for the accused to attack PW2 and the deceased in the manner they did was to rob them of their motor cycle. The motor cycle has never been recovered and neither has anyone returned it to PW2.

^Ifind that the prosecution has proved this ingredient. The prosecution has discharged its burden of proving the offence of aggravated robbery beyond reasonable doubt.

#### COUNT 3- ATTEMPTED MURDER

lntent to cause death

The prosecution adduced Police Form 3 in respect of PW2 wherein it was indicated that he was found with cut wounds on the cheek, left eye and scalp caused by sharp objects. The injuries were classified as grievous harm. PW2 testified that pangas were used to cut him and when he was cut on the head by Al he lost consciousness. I agree with the prosecution that whoever used pangas to inflict injuries on PW2 intended to cause death. This ingredient was proved.

## Overt act done to cause death

I

PW2 testified that pangas were used to cut him by his attackers. This was corroborated by Police Form 3 which showed that he had suffered cut wounds on his cheek, left eye and scalp. This ingredient was also proved.

## Accused persons were responsible

PW2 stated, just like in counts 1 and 2 above, that he knew all the accused persons very well and he was able to see them using moonlight on the fateful night. He said when the accused persons stopped them as they rode their motor cycle, Al John got hold of him while A2 Mwine Julius got hold of Mwebaze Jimmy the deceased person. He said A3 Pascal asked them to choose between life and the motor cycle while A4 Katushabe was holding something like a gun and pointed it to them. PW2 told Court that Pascal cut him on the cheek with a panga and he screamed. He asked Pascal "why are you killing us we are Agaba's children and Pascal said "John they have recognized us" and he then cut Mwebaze with a panga while Mwine was holding Mwebaze. PW2 stated that John then cut him in the head with a panga and he fell down and became unconscious. The scuffle took about 20 minutes and although he made an alarm no one came to their rescue. ln cross-examination, PW2 testified that the distance between him and the deceased and A4 who was holding something like a gun was approximately one meter.

lam satisfied that the identification of the accused by PW2 is credible, reasonably accurate and placed the accused of the scene of crime. Given the credible evidence of

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PW2, A1 and A2 in their defence did not convince Court that they were not at the scene of crime. Neither did A3 and A4 whose defence of alibi was destroyed by the credible evidence of PW2 which I found reliable and convincing.

I do not agree with defence counsel's submissions that PW2's testimony was tainted with heavy contradictions and that he lost consciousness and this Court should not believe the same. The said contradictions/ inconsistencies were minor and did not go to the root of the case. The fact that PW2 lost consciousness 15 or 20 minutes after he was attacked by the accused did not change the fact that he properly identified the accused before he lost consciousness. The absence of the investigating officer did not affect the testimonies of the prosecution witnesses' sworn evidence in Court which takes precedence over statements made at the police station which may contain statements that may not be owned up by witnesses because of the way they were recorded at the time.

I find the prosecution has proved this ingredient as well. All in all, the prosecution has discharged its burden of proving the offence of attempted murder of PW2 against all the accused and I find them guilty on that count.

In conclusion, I do not agree with the assessors that the prosecution case is based on a pack of lies, hearsay and contradictions and that the accused should be acquitted. I find that the prosecution has proved all three counts above beyond reasonable doubt and accordingly convict all accused on all counts as charged.

Ang Latie

HON. LADY JUSTICE ANNA B. MUGENYI DATED........ $\frac{16}{8}$ $\frac{18}{5}$ $\frac{614}{4}$

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