[2024] UGHC 1144

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT HOIMA HOLDEN AT KYANGWALI CRIMINAL SESSION CASE NO.0209 OF 2022; KYANG CRB NO.184/2021

UGANDA:::::::::::::::::::::::::::::::::::

#### VERSUS

A1: NKURUNZIZA EDWARD alias BEBE

**A2: ATUHAIRE ROGERS alias DOGO**

**A3: TWIJUKYE OBED**

A4: OCWIL CHRISTINE::::::::::::::::::::::::::::::::::::

### **Before: Hon. Justice Byaruhanga Jesse Rugyema**

## **JUDGMENT**

- The 4 accused persons Nkurunziza Edward alias Bebe (A1), Atuhaire $[1]$ Rogers alias Dogo (A2), Twijukye Obed (A3) and Ocwii Christine (A4) were indicted with the offence of Murder C/ss 188 and 189 PCA. It is alleged that on the 18/8/2021 at Kamwokya Trading Centre, Kikuube District, the 4 accused persons and others still at large murdered **Rujungana Moses.** A1 and A3 opted to plead guilty and plea bargained sentences. They were therefore accordingly found guilty of murder and sentenced, A2 and A4 pleaded not guilty to the offence. - The prosecution case is that on $18/8/2021$ , the deceased together with $[2]$ others who included a one Niwahereza Rogers, and a one David were at A4's bar at Kamwokya Trading Centre for a drink. As they took their drinks, at around 9:00pm, A4 directed the other people present in the bar to beat up all the **Bahima/Banyankole**, referring to the deceased and his companions who were in the bar. A group of people who were of various other tribes including the accused persons rose up and spearheaded the assault of the deceased and his companions using various pieces of sticks which were being picked from a market stall around. The deceased and his companions fled the scene scattering as each looked his way home. It was on the following day that the deceased was found dead, his body having been dumped in the deceased father's farm.

- Police was accordingly alerted, the accused persons were sought from $[3]$ their respective homes and at A4's bar, arrested and eventually charged with the instant offence. - In their sworn defence, A2 and A4 denied the prosecution allegations. $[4]$ They testified that when it clocked around 9:00-9:30pm. A4 required him and others who included the deceased and his companion to leave the bar because of the existing curfew regarding "Corona" (COVID 19) so that she closes her bar. That they left the bar but when they reached Kamwokya Trading Centre, about 100 metres from A4's bar, they met a group of people being led by $A1$ who inquired where the Bahima were coming from. That the deceased started exchanging words with A1 who then picked a piece of wood from a wooden stand used for holding washed utensils and used it to hit the deceased on the head. That a fight ensued between the group of A1 and the deceased's group and in the process, each of them took different direction to their respective homes. As for A4, she claimed that she never came to know about the fight since it took place away from her bar. - It is cardinal principle of our criminal law that the burden of proving $[5]$ the charge beyond reasonable doubt is on the prosecution. The prosecution must prove each and every ingredient which constitutes an element of the offence. The burden never shifts to the defence except in few exceptions provided by law which do not apply to the instant case, Woolmington vs DPP [1935] AC 462 & Leonard Aniseth vs R [1963] E. A.206. - The accused ought not to be convicted on the weakness of the defence $[6]$ but on the strength of the prosecution case, **Uganda vs Oloya** [1977] HCB $4.$

# Ingredients of the offence of murder

In a charge of murder, the prosecution must prove the following $[7]$ essential ingredients of the offence: 1. Death of the deceased named in the indictment.

- 2. Unlawful causation of death. - 3. Causation of death with malice aforethought. - 4. Participation of the accused person(s) in causing or contributing to the death, see Moses Bulo vs Uganda, S. C. Crim. Appeal No. $12/1995.$ - In the instant case, the $1^{st}$ three ingredients death, unlawful causation $[8]$ and malice aforethought appear not to have been contested. - It is trite that death may be proved by production of a post mortem $[9]$ report or evidence of witnesses who stated that they knew the deceased and attended the burial or saw the dead body, Uganda vs Anyao Milton H. C. Crim. Session NO. 5 of 2017. - $\triangleleft$ 10] Regarding the death of the deceased, prosecution led evidence of the post mortem report admitted under S.66 TIA (P. Exh.1) which established the death of the deceased Rujungana Moses as brain injury which could have caused trauma of the brain. AIP Rwabukera Steven (PW3) who examined the body at the home of the deceased's father a one Rutataana testified that it had deep multiple injuries on the head and other parts of the body. - [11] As regards unlawful causation of the death, it is trite law that every homicide (the killing of a human being by another) is presumed to be unlawful unless it is accidental, or it occurred in circumstances which made it justifiable such as defence of person or property or is authorised by law, Gusambizi s/o Wesonga vs R 1948] EACA 65 and Uganda vs Okello [1992-93] HCB 68. - [12] In the instant case where there is evidence as per the post mortem report (P. Exh.1) that the deceased died of multiple injuries on the head and other parts of the body leading to trauma of the brain, there is nothing to show that the death of the deceased fell into the exceptions above. It is clear from the evidence on record that the deceased's murder was neither authorised by any lawful order, nor was it accidental.

- [13] The prosecution is further required to prove that the cause of death was actuated by malice aforethought. - [14] According to **S.191 PCA**, malice aforethought is defined as either an intention to cause death of a person or knowledge that the act causing death was probably caused the death of some person. The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. Since malice aforethought is a state of mind which is hardly ever proved by direct evidence, or knowledge that the act or omission causing death will probably cause the death of some other person, this intention or knowledge will invariably be inferred from the circumstances under which the death occurred, Tubere s/o Ochen vs R [1945] 12 EACA 63. - [15] In the instant case, considering the nature of the injuries inflicted, which are multiple in nature, part of the body affected, the head which is a vulnerable part of the body that houses the brain, I am satisfied that whoever assaulted the deceased intended to cause or knew that the manner and degree of assault would probably cause death of the deceased. - [16] In the premises, I find the $1^{st}$ three of the ingredients of the offence duly proved beyond reasonable doubt in view of the fact that besides, the defence did not contest these ingredients of the offence.

# Participation of the accused persons in causing the death of the deceased.

- [17] This is the most important ingredient of the offence since the $A2$ and A4 hotly denied participating in the assault of the deceased that resulted in his death. - [18] In the instant case, the deceased's companions, Niwahereza Rogers (PW1) and Tukakira David (PW2) who are some of the victims of the assailants and therefore witnessed the incident testified that while in

A4's bar taking their drinks, A4 directed a group of people in the bar to raise up and beat up all the Bahima/Banyankole who were in the bar. That the people who included A1, A2 & A3 got up and started assaulting the deceased and his companions using various pieces of sticks they picked from a nearby market stall. As a result of the attack on the deceased and his companions, they fled the scene as they were being assaulted, each finding his way to their respective homes. On the following day, the deceased was found dead as a result of the previous night's assault.

- [19] It is the contention of the prosecution witnesses, the deceased's companions, PW1 and PW2 that they knew each of the accused persons and were further able to identify them because of the solar light that was everywhere a proof that the PW1 and PW2 knew the assailants very well, A2 himself also stated that he knew both PW1 and PW2 and they are the ones who caused for the arrest of the accused persons. - [20] **A2** admitted to had been at the scene of the crime. He merely denied participating in the assault of the deceased and his companions. A4 expressed ignorance of what happened when her clients left her bar since the fight occurred away from her bar. - [21] I have not been able to believe the defence evidence. The eye witnesses PW1 and PW2 were categorical about the accused persons as part of the group that assaulted them with the deceased. I am not able to understand why PW1 and PW2 would tell lies that A4 commended the assailants to assault them when it is not true. She was their provider of drinks and they were her usual customers and therefore, there is no possibility that they had any grudge against her. The same apply to A2 who was with them in the bar and all enjoying their drinks. - [22] I find that the deceased died of the fatal strike on the head by a stick, probably the piece of wood that A2 stated was picked from a wooden stand that is used for holding washed utensils. The attack on the deceased and his companions was a result of the act of A4 who directed for the assault of the deceased and his companions who were the only Bahima/Banyankole in the bar.

[23] In agreement with the lady and gentleman, I find A2 and A4 part of the group that is responsible for or participated in the assault of the deceased, that resulted in his death. I find A2 and A4 guilty of the murder of the deceased Rujungana Moses and convict them accordingly.

Dated at Hoima this $4$ ^th day of October, 2024.

$\frac{\partial}{\partial t}$

Byaruhanga Jesse Rugyema Judge