[2025] UGHC 147

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT APAC**

## **CRIMINAL SESSION CASE NO. HCT-CR-SC-0127 OF 2020**

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

## **VERSUS**

15 **ODAGA SAMUEL………………………….……………………….…….. ACCUSED**

BEFORE: HON. MR. JUSTICE GEORGE OKELLO

## **JUDGMENT**

It is alleged that the accused person and others at large caused the death of Oleno Tom Richard with malice aforethought. Oleno was a suspected 25 thief who was killed by a mob that the accused person is alleged to have been a part of. The deceased is said to have died on 11th February, 2020 at Abongo-dero Cell, Apac District. The accused pleaded not guilty during plea taking on 28th January, 2025. During the preliminary hearing, Post-Mortem Report was agreed on (PF48B) and marked PEX1. PF24 (PEX2) on 30 which the accused was examined and found to be of sound mind was also agreed upon as well as photographs of the deceased (PEX 3 (a), (b), and (c), respectively. Two assessors were appointed and sworn without objection by either side, namely, Mr. Otwang Moses Okello, and Ms. Aceng Beatrice, their suitability to act as such having been affirmed in accordance with

35 the Assessors Rules.

Murder being an offence contrary to section 171 and 172 of the Penal Code Act Cap 128 it is required that the prosecution proves the following elements beyond reasonable doubt;

- 10 **i) Death of a human being occurred** - **ii) Death was caused by an unlawful act** - **iii) The unlawful act was actuated by malice aforethought** - **iv) It is the accused who caused the unlawful death.** - 15 There are key legal principles that shall guide this legal rendition. The first is the burden of proof which, as noted, is always on the prosecution. This is because an accused person enjoys a constitutional right of presumption of innocence under article 28 (3) (a) of Constitution of Uganda, 1995. Because of the presumption of innocence, the prosecution, therefore, 20 bears the burden of proving the guilt of an accused person beyond reasonable doubt. See: *Woolmington Vs. Director of Public Prosecutions [1935] A. C 462*; *Chan Kau Vs. R [1955] A. C 206; Uganda Vs. Dick Ojok (1992-93) HCB 54*. - 25 The Prosecution must thus prove each and every ingredient of murder beyond reasonable doubt. This does not, however, mean, proof beyond the shadow of doubt as the degree of proof need not reach certainty. This

- 5 ensures that the court avoids considering fanciful possibilities with could deflect the course of justice. Thus only a strong evidence is required against the accused person that leaves only a remote possibility in his favour. If court finds on the evidence that what the accused person is accused of, is possible, and not in the least probable, then the standard of - 10 proof would have been met and nothing short of that can suffice. See: *Miller Vs. Minister of Pensions [1947] All ER 272, at 373-374*, per Lord Denning.

The accused person does not assume any burden of proof given the provision of section 101 (2) and section 103 of the Evidence Act Cap 8 as 15 the burden of proof is always on the prosecution. See: *Mahyara S/O Malakoni Vs. Reg. (1955) 22 EACA 502.* Any doubt created in the prosecution case means an accused person should take the benefit of the doubt. If there is evidence of any defence the accused should have the

benefit of it even if not raised by him or counsel. Court would be obligated

- 20 to avail such defence to the accused person. See: *Abdu Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991*; *Obwalatum Francis Vs. Uganda, SC Crim. Appeal No. 030 of 2015*; *Mancini Vs. DPP (1942) AC 1*; *Didasi Kabengi Vs. Uganda (1978) HCB 216*. An accused can only be convicted on the strength of the prosecution case and not because of weakness in his defence. See: - 25 *Sekitoleko Vs. Uganda, [1967] EA 531*. The court at the end of the case must ask itself: Is the legal burden discharged? Has the Prosecution proved the guilt of the accused beyond reasonable doubt? In a criminal

- 5 case, all matters must be strictly proved. The State cannot, for instance, solely rely on concessions made by the accused person. See: *FW Crowie Vs. R [1961]1 EA 38 (CAN)*. Court must evaluate all items of evidence on record being both the prosecution and the defence evidence, if any. The Supreme Court in *Abdu Ngobi Vs. Uganda, S. C Crim. Appeal No. 10 of 1991* - 10 succinctly stated the law:

*"Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper*

- 15 *approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a* - 20 *doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as the person who was at the scene of the incidents as charged."*

I proceed to consider the ingredients of murder in light of the evidence on 25 record.

- 5 Death of a human can be proved by oral evidence and medical evidence. In the instant case, the Post Mortem Report (PEX1) shows that the body of Oleno Tom Richard was identified by Akena Alfred to Dr. Robinah Akello who conducted the post-mortem on 12th February, 2020 at Apac Hospital. The LCI Vice Chairperson of Abongodero Village, Ayeo-lyec Parish, Akokoro - 10 Sub- County, Apac District, a one Okello Patrick (PW1) testified that the deceased Oleno Tom Richard was resident in his area and died on 11th February, 2020. The deceased died from PW1's home where he had been carried by good Samaritans who found him on a road in a weak state and was unable to talk. PW1 alerted Police who arrived when the deceased was - 15 already dead. Rtd Det. Sgt. Oleng Augustine (PW2) who was the scene of crime officer testified that he saw the dead body the following day on 12th February, 2020 at the home of PW1. It was under a mango tree covered with white mosquito net. The photographs admitted as exhibits (PEX 3 (a), (b), and (c)) corroborate the fact of death. Additional photographs were 20 tendered in evidence by PW2 and marked PEX4 (a) and (b) and clearly - show where the dead body lay. PW3 Det Corporal Angole Jasper testified he also saw the dead body of Oleno Tom Richard at the home of PW1. The fact of death has not been contested. As the assessors advised, I find this element has been proved beyond reasonable doubt.

5 Regarding the unlawfulness of death, at law, all homicides are legally presumed to be unlawfully caused unless it was accidental or authorized by law. See: *Gusambizi s/o Wesonga Vs. Republic [1948] 15 EACA 65*.

In the instant case, PW1 testified that the deceased was assaulted by a

- 10 mob because he was a suspected thief. PW1 was informed about the assault by Sabina Adule whose clothes had been stolen but were recovered from a bush by a search party which included the deceased. PW1 says he saw the marks of beatings on the deceased's shoulder and head. PW1 shared the fact of the assault of the deceased with PW2 (Scene of Crime - 15 Officer). PW3 (Det Cpl. Angole Jasper) testified that he recovered three sticks that were used to assault the deceased. The exhibit slip RX CRR08/2020 was received in evidence and marked PEX5. Court saw the sticks. Although the photographs of the deceased does not show the marks left by the assault on the head and shoulders, the post-mortem report - 20 corroborate the testimonies of the prosecution witnesses. The examining Doctor observed multiple cut wounds on the head of the deceased. The foregoing proves beyond reasonable doubt that the death of Oleno Tom Richard was unlawfully caused. Even if he was a suspected thief, assaulting him to death was wrong. The law ought to have been followed. - 25 I am in agreement with the assessors on their conclusion on this ingredient of the offence.


- 5 Regarding the aspect of malice aforethought, section 174 of the Penal Code Act Cap 128 defines it as the intention to cause death of a person or knowledge by the person that his or her act will probably cause death. Being a state of mind, intention is difficult to prove through direct evidence. Courts have, however, developed principles that guide in - 10 establishing whether or not there was malice aforethought, namely, whether a deadly weapon was used; the manner in which it was used to inflict the injuries; whether a vulnerable part of the body was targeted; whether the weapon was used in a ferocious manner, that is, the nature of the blow; conduct of the accused person before and after the act. These - 15 guidelines were expounded in the case of *R Vs. Tubere s/o Ochieng [1945] EACA 63.*

Malice aforethought can thus be proved by circumstantial evidence or medical evidence such as postmortem report. However, a postmortem 20 contains findings as to the state of the body, injuries found on it, and an opinion as to the cause of death. It is thus not capable by itself of proving malice aforethought, the existence of which is not a question of opinion but of fact to be determined from all available evidence. Thus the test that malice aforethought can be inferred from part of the body inflicted by an 25 unlawful act is more restricted to cases where a weapon has been used to commit a homicide. It is thus important that a weapon used to cause death be described to the Doctor carrying the postmortem or be observed by the

5 Doctor for the Doctor to be able to state the effect of the weapon on the deceased in causing the injuries. This guides court in estimating the *mens rea* of the accused. See: *Francis Coke Vs. Uganda (1992-1993) HCB 43*; *Jospeh Rujumba Vs. Uganda (1992-1993) HCB 36*; *Nandudu Grace & another Vs. Uganda, Criminal Appeal No.04 of 2009 (SCU)*.

In the instant case, the sticks used to assault the deceased were admitted in evidence by way of exhibit slip. The post-mortem shows there were multiple cut wounds on the head of the deceased. To my mind, this implies the sticks caused the injuries and were used multiple times. Court noted 15 some cracks on the sticks which possibly resulted from the ferocious application on the deceased's body. If used multiple times, the sticks were capable of causing death as it did occur in this case. The deceased was brought to PW1's home in a state where he could not talk. Therefore, and in concurrence with the assessors, those who assaulted the deceased had

20 intention to cause his death or knew that death would possibly result from their action. I, therefore, find that malice aforethought has been proved beyond reasonable doubt.

The participation of the accused is contested. He denies being at the scene 25 of the crime on 11th February, 2020. The accused raised an alibi stating he was first at his house on the date in question from morning and only left and went to a clinic of Apio (Nurse) at 8:00am to test for malaria as he


- 5 was feeling sickly. The test turned positive. He was given coartem and pandol by Apio and returned home at about 1:00pm. At the time of his arrest at 3:00pm on 11th February, 2020, he was at his house having been sleeping due to the sickness. It was PW1 who stormed the accused's house with a Police Officer, and forcefully opened the door. While there, they - 10 inquired about a one Odyek Yello Bus who was a suspected assailant and whom people had alleged was hiding at the accused's house. According to the accused person, the Police threatened that if the accused failed to produce Odyek the accused would instead be arrested but producing Odyek would save the accused person. The accused denied seeing Odyek. - 15 On inquiring why they were looking for Odyek, the Police Officer disclosed that Odyek had assaulted a person at Abongodero Trading Centre to death. Having told Police that he had not seen Odyek, the Police arrested and took the accused person away to Akokoro Police Station. The accused said he cried as he was sick and knew nothing about the allegation.

Having raised an alibi, it was the duty of the prosecution to destroy the accused's alibi by adducing evidence which places him at the scene of the crime as part of the mob who allegedly assaulted the deceased to death. It is trite law that an accused person does not assume the duty of proving 25 his alibi. It is the duty of the prosecution to adduce cogent evidence placing the accused at the scene of the crime as a participant in the crime. See: *Lt*

5 *Jones Ainomugisha Vs. Uganda, SC Crim. Appeal No. 19 of 2015*; *Sekitoleko Vs. Uganda [1968] E. A 531.*

In the instant case, I begin with the testimonies of the Police Officers. I should make it categorical that none of the Police Officers witnessed the

- 10 assault of the deceased. They all rely on what the LCI Vice Chairman (PW1) Okello Patrick told them. According to Det. Sgt. Oleng Augustine (PW2), at the home of the Vice Chairman (PW1), the latter briefed him and Det. Constable Angole (as he then was) about how the deceased's body got to PW1's home. According to PW2, PW1 stated that the deceased was - 15 assaulted for alleged theft and when PW1 tried to intervene to save the accused, he was overpowered by the mob.

As noted, from PW2's testimony, the Vice Chairman does not tell PW2 that the accused was part of the mob.

PW2 also testified that the arresting officer/ investigating officer (Det. Constable Angole) arrested six suspects but after interrogations, the officer zeroed on the accused person who was charged. PW2 who was the scene of crime officer also stated that his role was to identify suspects, gather 25 exhibits and document the scene. The witness identified a photograph which to him shows the environment where the deceased collapsed and died (as narrated to him) while being pursued by the assailants/ mob. In

5 cross examination, PW2 strangely stated that he did not visit the crime scene where the deceased was assaulted from but it was visited by his colleague Det. Constable Angole.

On his part, Det. Corporal Angole Jasper (previously a Det. Constable)

- 10 (PW3) testified that in February, 2020, he was attached to Akokoro Substation in the CID Department and he was investigating criminal cases. He learnt about the death of Oleno Tom Richard from PW1 (Okello Patrick- the V/Chairman) who reported at Police. According to PW3, the Vice Chairman reported that it is the accused (Odaga Samuel) and his - 15 colleagues who killed the deceased. PW3 then recorded the statement from the V/Chairman (PW1). PW3 went to PW1's home and found the dead body and three sticks which were identified by PW1 as having been used to beat the deceased. The colleagues of the accused mentioned by the V/chairman to PW3 were Odyek Yellow Bus, Akena Tom Richard and others whose - 20 names PW3 has forgotten. PW3 said he is the one who arrested the accused from the accused's home on 11th February, 2020 at 3:45 pm (date of the murder). It was PW1 who led PW3 to the accused's home. In cross examination, PW3 conceded he was not present during the assault on the deceased. PW3 further related what PW1 told him that the first assault 25 happened on the deceased at the deceased's home. As to whether PW1 was - present at the deceased's home and saw the assault happening remains to be seen from the testimony of PW1. According to PW3, PW1 also narrated

- 5 that the deceased was later carried and taken to PW1's home and further assaulted while there, from where he died. PW3 also stated that from the report he got from PW1, the assault started at 2:00pm of 11th February, 2020. PW3 conceded he does not know the time the second assault stopped. In re-examination, PW3 stated that PW1 told him that he - 10 witnessed the assault of the deceased by the accused person and his colleagues.

PW4 Det Sgt. Omara Godfrey who was second in-charge homicide Apac in February, 2020, testified that he and team received a message from 15 Akokoro CPS that Oleno Tom was murdered. PW4 and team proceeded to Abongodero cell to the home of PW1 (V/chairman). That PW1 narrated to the witness about the incident. PW4 says PW1 narrated that the accused and others beat the deceased. That PW1 said he tried to restrain the accused from beating the deceased but he did not stop and that the 20 accused even threatened to beat PW1 for restraining the accused. PW4 recorded the statement of PW1, and the accused's. The latter denied assaulting the deceased, according to PW4.

As noted, all Police Officers squarely rely on PW1 (V/Chairman) for their 25 testimony on the alleged role of the accused person in the murder of the deceased. In his testimony, however, the V/Chairman makes a stark contradiction. He testified that while at his home on 11th February, 2020,

- 5 Sabina Adule came to PW1's home and woke him from his sleep saying all her clothes had been stolen from her house. PW1 went to Sabina's home where Sabina was joined by the deceased (Oleno Tom Richard). The trio and Munu Morris followed suspected gumboot marks leading to a bush from where the clothes were found. It is the deceased who allegedly found - 10 the clothes. He did not confess he was a thief. The clothes were handed back to Sabina the team having failed to establish who the thief was. PW1 then went back home. At 1:00pm, while at home, PW1 saw people carrying Oleno Tom Richard towards PW1's home. It was Olwo Samuel, Akena Tom, and others whom PW1 could not recall. The deceased was still alive when - 15 the team arrived at PW1's home. He had assault marks from beatings all over the body. The marks were on the shoulders and head. The men who carried the deceased then told PW1 that they found him lying by the roadside within the village (Abongodero). PW1 then went to Sabina's home, approximately 500 metres away. He asked Sabina about what had - 20 happened to the deceased. Sabina told PW1 that people grabbed the recovered clothes from Sabina, dressed the deceased claiming he was the thief. That Sabina allegedly mentioned the accused's name, Odyek Yellow Bus, Ojuku as persons who dressed the deceased and beat him with sticks. PW1 was firm to court that he was not at the scene when the 25 beatings happened on the deceased but he was only told by Sabina. That is when PW1 rung the Police. The deceased died from PW1's compound, he asserted.

As stated, apart from the major contradictions in the Police version and PW1's which court cannot ignore, see: *Nasolo Vs. Uganda [2003] 1 E. A 181 (SCU)*, the Police Officers rely on hearsay evidence to support their story. Evidently, PW1 has disowned that version. The contradictions by the

- 10 prosecution witnesses go to the contested heart of the case which is the participation of the accused in the alleged criminal acts of the mob. As noted, quite contrary to the Police claims, PW1 never saw the accused at the scene of the crime where the deceased was assaulted. It is of course quite possible that PW1 told the Police what the officers narrated to court, - 15 but he surprisingly let them down on oath before court. I think the V/Chairman was also defending himself from possible arrest given the deceased died at his home. He ended up creating serious gaps in the prosecution case as regards the accused's alleged participation in the murder. This court noticed a slip during the state's cross-examination of - 20 the accused where the learned senior state counsel disclosed to the accused that Sabina (the would-be key witness) is deceased. I think Sabina would have been a valuable prosecution witness and might have closed all gaps had she lived to testify in the matter. Of course from the available evidence, Sabina was also not very clean as she had been arrested on 25 suspicion of participating in causing the death of the deceased. Although court harbours no doubt about Sabina's death, court was not told the year

and the month she died. I have considered the accused's alibi together

- 5 with the prosecution version and find his alibi unshaken. Whereas the accused person testified and some-what initially created doubt in his own account by not accounting for his absence from 10:00am when he left the clinic till 1:00pm when he returned to his house yet the clinic was only 30 metres from his house, none of the prosecution witnesses stated that - 10 within those three hours, the accused person was seen as having been part of the mob and did assault the deceased. No witness saw the accused at the deceased's home where it is alleged the assault began or the vice chairman's home where it is alleged further assaults continued, or anywhere else. To the accused's further benefit, the prosecution version of - 15 things suggests that the assault commenced from about 2:00pm which is the time the accused says he was already back home from the clinic and was resting at his house (sleeping) as early as 1:00pm. In the circumstances, I do not accept the prosecution claim that the accused was at the scene of the crime whichever scene they meant, and that he - 20 participated in assaulting the deceased. In *Mohamed Mukasa Vs. Uganda, SC Crim. Appeal No. 27 of 1995* it was held by our apex court that where an alibi raises reasonable doubt as to the guilt of the accused, it is sufficient to secure an acquittal. There is no suggestion here of a fabrication in the accused's alibi which if proved would have had the effect - 25 of destroying the alibi and strengthening the prosecution case that indeed the accused was at the scene of the crime and assaulted the deceased. See: *Kato Kajubi Vs. Uganda, SC Crim. Appeal No. 20 of 2014* referencing

- 5 *Bogere Moses & another Vs. Uganda, SC Crim. Appeal No. 1 of 1997*. The police in the instant case also failed to destroy the accused's alibi yet it was their duty to disprove it by investigating its genuineness. See: *Androa Asenua & another Vs. Uganda, Crim. Appeal No. 1 of 1998* - 10 Given the analysis, I find the prosecution evidence deficient in proving the participation of the accused in the murder of the deceased Oleno Tom Richard. Consequently, and in full concurrence with the assessors, I find Odaga Samuel not guilty of murder, and I accordingly acquit him. He shall be released from Prison Custody forthwith unless held on other lawful 15 charge.

Dated, signed and delivered at Apac this 04th April, 2025.

20 George Okello JUDGE

## **Judgment read in Court**

10: 00 AM 04 April 2025

## 10 **Attendance**

Accused person in Court

- Ms. Nakibira Brenda, on State Brief, for the accused - Mr. Mr. Owor Lewis, S. A, for the Prosecution - Ms. Aceng Beatrice and Mr. Otwang Moses Okello, Court Assessors - 15 Ms. Sophia Akello, Court Clerk/ Lango Language Interpreter

George Okello 20 JUDGE