[2023] UGHC 428

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT RUKUNGIRI** CRIMINAL SESSION NO.037/2023 RUKUNGIRI-00-CR-AA-037/2023 **RUKUNGIRI CRB-097/2022** (ARISING FROM RUK--00-CR-AA-011/2022)

# UGANDA:::::::::::::::::::::::::::::::::::

**VERSUS**

- 1. NIMUSIIMA MAUREEN - 2. MBABAZI ABERT BWENTARO::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE.

#### **JUDGMENT**

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#### **Brief facts**

The accused persons, A1- Nimusiima Mauren and A2- Mbabazi Abert Bwentaro were jointly indicted for murder contrary to Section 188 and 189 of the Penal Code Act, Cap.120.

They are alleged to have murdered a widow called Bwentaro Aida on the 2^nd day of February, 2022.

The two accused persons are husband and wife whereas the deceased was a step-mother to the husband. They were alleged to be living together in a homestead but intheir respective houses. The husband to the deceased died a few years back.

It is alleged by the Prosecution that Bwentaro Aidah (the deceased and the accused persons were all residents of Rugongo village, Bigyere Parish, Buyanja Sub County, Rukungiri District.

It is alleged that on 2^nd February 2022, the deceased went to her farm nearby in the evening to clear grass but never returned home and the following morning, 3^rd February 2022 her dead body was discovered near her home by the road side, with a rope tied around the neck and several cuts all over her body.

That the residents gathered at the scene and called Police who visited the scene of crime and investigations commenced.

The witnesses in the case were drawn from the neighborhood. They included the herdsman of the deceased person, who used to live among the accused persons and the deceased.

They included the LC 3 Chairperson of Banja Sub County, Rukungiri, who explained to the court the sour relationship existing among the accused persons and the deceased following the death of her husband.

The Prosecution led evidence to try to show that the motive for the murder of the deceased was based on land conflicts between the deceased and the step-son after the death of her husband.

It was also alleged that since getting married to the family, the A1 had never been in good terms with the deceased.

A1 was subsequently arrested and a search was conducted in her house in her presence where a panga and clothes stained with blood were allegedly recovered.

It is stated that A1 was interrogated and she confessed to having killed the deceased with her husband A2

The prosecution further alleged that on 15^th February, 2022, A2 allegedly went to Police to check on his wife and he was arrested and interrogated but denied the allegation.

The deceased's body was examined and found with cuts on the neck, hands and back and the cause of death was classified hemorrhagic shock due to injured veins and artery.

Both A1 and A2 were also examined and found to be adults and both of normal mental status.

#### **Legal representation**

During the hearing the Prosecution was represented by Ms. Jane Musimenta, the Resident State Attorney, Rukungiri District, whereas the accused persons were represented by Counsel Mark Mwesigye on State Brief.

The Prosecution adduced 08 witnesses and documentary evidence. Court conducted a trial within a trial to ascertain whether A1's Charge and Caution statement was made voluntarily. The Prosecution then closed its case.

Both A1 and A2 testified on oath and denied the allegation against them. They then closed their defense.

It is the duty of the prosecution has the burden of proving the case against the accused person beyond reasonable doubt. (See Woolmingtom Vs DPP [1935] UKHL 1).

The burden does not shift to the accused persons and the accused may only be convicted on the strength of the prosecution case and not because of any weaknesses in his defenses. (See Ssekitoleko v. Uganda [1967] EA 531).

By the accused's plea of not guilty, the accused put in issue each and every essential ingredient of the offence with which he was charged and the prosecution has the onus to prove all the ingredients beyond reason reasonable doubt.

To sustain the offence of murder contrary to section 188 & 189 of the Penal Code Act, Cap.120, Prosecution has the duty to prove the following ingredients.

- 1. That there was death of a person; - 2. The death was caused unlawfully; - 3. The death was caused with malice aforethought; and - 4. The accused participated or caused the death.

# Ingredient No.1: That there was death of a person.

It is not disputed that Bwentaro Aidah died on 2^nd February 2022. The evidence is cogent in the testimonies of the prosecution witnesses and the contents of PF 48 in respect of the victim which was exhibited, unchallenged and marked PE1. Therefore, it is my finding that the prosecution proved this ingredient beyond reasonable doubt.

## Ingredient No.2: The death was caused unlawfully.

It is cardinal legal principle that all homicides/killing of a human being is presumed unlawful unless it is shown that it was either authorized by the law or it was accidentally caused. I

have considered the evidence on record, it is clear that the deceased succumbed to multiple cut wounds around the neck region. Clearly, this was not accidentally caused. No evidence was adduced to show that the same was authorized by the law. Therefore, I find that the prosecution has proved this ingredient beyond reasonable doubt.

# Ingredient No.3: The death was caused with malice aforethought.

This ingredient required proof that the assailant intended to kill the deceased. This can be proved by looking at circumstances surrounding the death of the victim. For instance, the nature of the weapon used in the commission of the offence, the nature of the injury sustained and its severity and the part of the body where the injury was inflicted.

The evidence of all the Prosecution witnesses reveals that the victim had multiple cut wounds around the neck region. These were corroborated in the contents of the PF48 in respect of the victim, exhibited and marked PE1, unchallenged.

The neck is a vulnerable part of the body and the injuries were severe in nature. I am convinced beyond reasonable doubt that this ingredient was proved by the prosecution.

As to the weapon used to inflict injury on the deceased, I find that it was not proved that the panga tendered before court was the one used in the attack. This is because the GAL report was not presented to court.

This does not, however, rule out that the deceased suffered cuts inflicted using sharp edges weapon.

# Ingredient No.4: The accused participated or caused the death.

PW1-Katushabe Apophia testified to the effect that on 2^nd February, 2022 in the evening, the accused, A1 left her child with her and told her she was going to pick a panga at the banana plantation, having been left there by her husband, A2 and when she returned to pick her child, she had a Panga. PW3-Agaba Emmy Rubondo and PW5-Turyatonga William testified to the effect that the accused, A1 and A2 were in bad terms with the deceased due to property wrangles particularly land, left behind by A2's father.

PW7-Detective Corporal Assimwe Erina, a Police Officer told court that she recorded the statement of A1 who told her that she didn't kill the deceased but her husband, A2 cut her

using a panga after waylaying her near her home and as such she matched the accused, A1 to the appropriate police officer to record the Charge and Caution statement.

PW8-Detective Assistant Inspector of Police, Mushabe Andrew, who was a police officer attached to Rukungiri Police Station told court that he recorded the Charge and caution statements of A1, after having taken her through the requisite procedures and she told court that she knew about the plan to kill the deceased and that had she left her child at the home of PW1.

PW8 further told court that A1 told him that she and A2 way laid the deceased along a path in a banana plantation near her home and A2 put a rope on the deceased's neck and cut her using a panga when she tried to make an alarm.

Court conducted a Trial within a Trial and the said Charge and Caution statement of A1 was admitted and marked PE12 A and B in respect of the Runyangkole and English versions, respectively having found that the statement was made voluntarily.

It was noted that A1 did not report the killing of the deceased to the law enforcement agencies, such as police. The fact of her concealment of the commission of the offence makes her an accomplice in the crime.

In their defense, A1 told court that she signed documents which were given to her by a Police Officer, one Asiimwe (PW7) and she thought that it was a Police bond form. She denied ever recording any statement or participating in the murder of Aidah. Court also took note of the fact that A1 benefited from the advice of her lawyer while in police custody. Court therefore admitted the Charge and Caution statement. Court was of the view that the two accused persons formed a common intention to murder the deceased.

A2 on the other hand denied the allegation and told court that he left for Kampala on 2^nd February, 2022, on a lorry, to go and take care of his two children who were sick at Mulago Hospital. In essence, A2 set up a defense of Alibi.

It was submitted by defense that A1 never made a confession voluntarily as it was done after a period of long detention. It was further submitted that PW8 who recorded the Charge and Caution statement had seen A1 before and he also recorded statements of two other witnesses and as such he didn't qualify to record the statements. Finally, it was submitted that A1 signed the document she didn't know as she was promised to be released on Police bond.

This court found that the Charge and Caution statement of A1 was made voluntarily after conducting a trial within a trial.

Court is alive to the requirement to treat retracted or repudiated confessions with caution.

In Mumbere Julius Vs Uganda SCCA No.15/2014 court found that delay in recording a charge and caution statement is not fatal if justified. PW7 in her testimony told court that they delayed to record the statement as the officer who was qualified to record a Charge and Caution statement was on a Pass Leave. This was confirmed by the said officer in his testimony as PW8. I find that despite delay, there was no proof that A1 was forced or coerced to make the confession. She was taken through by PW8, Mushabe Andrew, who is of AIP in rank and conversant with the language of A1, which is Runyangkole.

The officer didn't skip any of the procedures in recording the statement. Additionally, it is on record that A1, despite denying killing the deceased, she was present when the act was done by A2 and she knew about the plot to kill the deceased. She was therefore an accomplice.

PW1 who told court that A1 left her child with her that day and later returned with a Panga. There is further corroboration in the testimony of PW3 and PW5 to the effect that the accused persons were in bad terms with the deceased.

I would like to point out that court did not attach any evidential value to the Prosecution evidence which was not scientifically confirmed by the GAL. This includes the panga and clothes which were alleged to be tainted with blood stains, recovered from the home of A1.

The defense of Alibi raised by the accused A2 is untenable as the same was destroyed by the prosecution evidence already analyzed. The prosecution adduced evidence to show that on the fateful day the accused A2 was within the area (scene of crime) through PW5 and the Charge and Caution statement of A1. Therefore, the defense of alibi was destroyed by prosecution evidence, which put him at the scene of crime.

It is not believable that the accused person, who alleged to have gone to Kampala on the day the deceased was alleged to have been killed, was not able to learn of her death, till he came back to Rukungiri District, about eleven days after her burial. Therefore A2's absence during the burial of his step-mother and his disappearance from the village was not that of an innocent person.

In view of the foregoing pieces of evidence, it is my finding that the prosecution has proved beyond any reasonable doubt that the accused- A1 and A2, participated in the murder of Bwentaro Aidah.

Consequently, I convict A1 and A2 of murder contrary to Section 188 and 189 of the Penal Code Act, Cap.12.

### **Aggravating Factors**

Ms. Musiimenta Jane:

We have no records of previous convictions against the accused persons. I pray for a befitting sentence as the convicts killed an innocent old woman. I pray for a sentence of 45 years' imprisonment.

### **Mitigating Factors**

Counsel Bwagi Jonathan (Holding Brief for Mark Mwesigye)

My Lord, the convicts are first time offenders. They are a couple with a young child and the child needs a free environment. I pray for leniency.

A1: I have a young child and we are both in Prison. I pray for leniency.

A2: I have people who depend on me. I look after my mother and I have three children with other women and they are looked after by my mother who is sickly and has only one kidney. I pray for leniency.

#### Sentence and reasons

Court: I have considered both the aggravating and mitigating factors in respect of both convicts. I now sentence them as follow:

A1: is sentenced to seven years in jail.

The A1 volunteered evidence which led to the conviction of the accused persons, by making a confession. She therefore appeared to me to be remorseful. Her level of participation, besides, was not as severe as that of A2. She also has a baby of about 5 years to look after.

A2: is sentenced to 30 years in jail.

The conduct of A2 does not portray any remorsefulness at all. He is in fact the one who strangled the deceased and cut her with a sharp weapon, killing her.

He therefore deserves a more severe sentence.

The time spent on remand shall be deducted from each sentence.

Therefore -

A1 shall serve 5 years and 8 months in jail (having deducted 01 year and 4 months spent on remand).

While A2 shall serve 28 years and 8 months having (deducted 01 year and 4 months spent on remand).

Right of appeal explained.

Judgment is read in open court.

$\cdots \cdots \cdots \cdots$

Judge

Delivered at Rukungiri this $-6$ ^th $-$ . day of $-$ June $-$ . 2023 in the presence the accused -A1 and A2, the Prosecution and Defense Counsel.

$\cdots \cdots \cdots \cdots \cdots \cdots$ TOM CHEMUTAI, JUDGE.