[2024] UGHC 415

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **CRIMINAL SESSION CASE No. 178/2016**

# **(ARISING FROM CRIMINAL CASE – CRB No. 019/2016: PATONGO).**

#### 5 **UGANDA PROSECUTOR**

**Versus**

#### **OKIDI JOSEPH Alias ANYANYA ACCUSED**

# **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

# **RULING.**

### 10 **Background.**

[1]. The Accused, **Okidi Joseph Alias Anyanya**, was indicted on a Count of **Murder Contrary to Section 188 and 189 of the Penal Code Act, Cap. 120**. The particulars of the offence in the indictment are that on the 11th day of March, 2016 at Ngora Central Village, Agago Town Council in Agago District the 15 Accused unlawfully caused the death of Akello Emma – the "Deceased". The indictment is dated the 17th May, 2016 and the Accused was committed to the High Court for Trial on the 2 nd June, 2016.

[2]. The Accused was arraigned before the Court on the 15th January, 2024 and pleaded not guilty to the charge of murder read and explained to him by the 20 Court whereupon the Trial commenced. During the Trial the entire proceedings were interpreted into the Acholi language, his preferred language. Ms. Lamunu Esther and Mr. Okumu Raymond were appointed Assessors in the Trial without objection from the Accused and Counsel and upon declaration of no conflict of interests in the case they took oath and assumed duties.

#### **The Prosecution Evidence and Case Presented.**

- [3]. The Prosecution commenced its case on the 9th January, 2024 and concluded its evidence on the 25th January, 2024 during which they called Four (4) Witnesses. PW1, Auma Juliana, a neighbour and niece of the Deceased; PW2, Olweny John, 5 a neighbour and Clan Leader of the Deceased's Clan; PW3, Kilama Ben, the Investigating Officer then attached to Agago Police Station; and, PW4, Okello John Paul, a Clinical Officer who performed a Post Mortem on the Deceased. - [4]. The first Prosecution witness, **Auma Juliana**, PW1, Sixty-Two (62) years old, a resident of Oyara Tonge Ward, Ngora Parish, Agago Town Council in Agago 10 District testified on oath that she knew the Accused who was her Aunt and lived in the same Parish. She died on the 11th March, though she did not recall the year. - [5]. The circumstances of the Deceased's death to her knowledge were that there had been a celebration for the Chairperson LC 3 and on the 12th March at about 6 15 am she left her home to go to her garden and decided to pick a hoe from the house of the deceased. She tried to open the door but it was closed, so she called one Oonyuk Gino with whom she opened the door and they found the late Akello Emma "the Deceased" dead in her house with her legs apart which in her view seemed like she had been sexually abused. She also found that the Deceased 20 had lost Four (4) teeth. She made an alarm to which many persons responded including Police Officers and Medical Personnel. - [6]. The persons at the scene started checking the Accused and found that he had a blood stain on his shirt and bruises on his chest like finger marks and upon interrogation of the Accused regarding where the blood stains were from he said 25 that since he was suspected of the murder of the Deceased he would hand himself over to the Police and he was taken to Patongo Police Station. Together with others she followed the Accused and made statements at Police.

- [7]. The Police and Medical Personnel examined the Deceased's body and found that she had been sexually abused. She was buried at her home on her land Two (2) days later. - [8]. Regarding motivation of the Accused, she testified that there had been a land 5 dispute between the Deceased and the Accused heard by the Ngora LC 1 Court and it was pending Judgment at the time of her death. - [9]. In cross examination, in respect of her statement at Police, PW1 admitted making a statement at Police which was read back to her and stated that she found the Deceased's door bolted and when she tried to open it she could not manage. She 10 denies stating at Police that the door was bolted clarifying that she stated that **"the door was pulled"** and they found the Deceased dead lying naked with both legs apart and the legs were supporting the door. The door opened inside for any person to enter or exit the house and there was no opening for a person to come out so they pushed it with a lot of force. The clarification was reasonable 15 and is accepted by the Court. - [10]. She also disputed the Police Statement because the part where she stated that she called Oonyuk Gino was missing. The Police Statement of PW 1 was admitted in evidence as **Exhibit "DE 1"** without objection. - [11]. Regarding the Deceased's body, she saw the private parts reiterating that she had 20 been abused sexually and there was a drop of semen where she was lying. Her breasts were tiny but she observed that they were swollen. They covered the body. - [12]. In her view, the Deceased died of strangulation though she did not observe the incident and she had lost Four (4) teeth. - 25 [13]. Concerning complicity of the Accused in the death of Akello Emma, she admitted that she did not see the Accused kill the deceased. She also did not see the Accused have sex with Akello Emma.

- [14]. She, however, reiterated that when people gathered at the scene the Accused also turned up and was found with blood stains on his clothes including on a long sleeved light blue shirt he was wearing – though she did not focus on his trousers – and scratch marks she saw which were not bleeding but dry following which 5 he handed himself over to the Police. At the time she arrived at the scene the Accused had not arrived and he appeared when she made the alarm. - [15]. The Accused's home was about 500 meters from the Deceased's home. The Accused shared a boundary with the Deceased which was the area of land dispute, though it was a different place from where the deceased was found dead. 10 In the land dispute she had heard about and was not sure whether it was before the LC 1 or LC 2, it was the Accused who filed the case against the Deceased. - [16]. In re-examination, she confirmed that the Deceased's door was not bolted and she had told Police about the sexual abuse. The Police removed the cloth she had used to cover the deceased. She also confirmed that she saw scratch marks 15 when the Police opened the Accused's shirt. - [17]. The second witness presented by the Prosecution was **Olweny John**, PW 2, Seventy-Five (75) years old a neighbour in the same Parish who recalled that the late Akello Emma died in the night of 11th March, 2016. PW 2's testimony was largely similar to PW 1 in the material particulars. - 20 [18]. In regard to possible motivation and complicity of the Accused in the death of the Deceased, he testified that there was a land dispute between the Accused and the Deceased before the Ngora LC 1 Court which was about to be resolved and Judgment was due on either the 14th or 15th March, 2016. Before her death, the Deceased told the LC and himself that after making statements at the hearing of 25 the case the Accused **"showed her bad heart"**.

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- [19]. She reported to him that the Accused planned to kill her and he informed his Committee of the Clan which advised him to inform the Chairperson of the Accused's Clan called Olube Atila Clan but she passed on before he could do so. - [20]. On the 12th March, 2016 he heard an alarm coming from the home of the 5 Deceased and he went to the scene where he found the Police. He testified that he observed the Accused's clothes were stained with blood – both the shirt and trousers – and he was taken to Patongo Police Post. - [21]. In respect to the Deceased's body, her legs were apart and she seemed to have been sexually abused and had missing teeth which he observed from inside her 10 house. The body was handed over to Police with the O/C one Kilama. - [22]. Later, he met the Clan head of the Accused's clan Amet Gensio with whom he discussed. The Deceased was a widow and she was buried on the 13th March, 2016 in Ngora at her brother Opio Batarision's home. - [23]. In cross examination, PW2 confirmed that he is a clan head who handles 15 complaints. The disputed land was at Ngora Trading Center – now Ngora Town Council and the dispute was not reported to him but to the LC 1. He did not attend the hearings but the LC Chairperson Akulino Moro had informed him that the decision was due on the 15th March, 2016. The distance between the Deceased's house where she was killed and the Accused's house is 500 meters. 20 They share a land boundary, though the disputed land is different. - [24]. In regard to his Police Statement, he testified that he recorded a statement at Police and it was read back to him. He does not know English. - [25]. In respect to the Deceased's body, he admitted that he did not see the Accused or any person sexually abuse the deceased. In his view, the way the deceased was 25 lying on her back with legs spread open indicated sexual abuse and violence since she had Three (3) had missing (PW 1 had mentioned 4 missing teeth) and her private parts were wet with semen.

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- [26]. He admitted that he did not see a person break the Deceased's teeth and also did not see the person who killed the deceased. The Deceased's mouth was bloodied and it was covered with a piece of cloth. She had no falling marks. At the time he arrived at scene it was already crowded with people. - 5 [27]. PW 2 was emphatic that the Accused reported himself to the Police and he wore a whitish long sleeved shirt with a black pair of trousers, though he did not look at his feet. The blood on his shirt was on the sleeves and the lower front part of the shirt which is usually tucked in. The blood on his trousers was on the area around his knees, though he did not remember which side. He, however, did not 10 see blood on Accused's chest, bite marks or scratch marks claiming that he did not observe the Accused well. - [28]. In re-examination, he reiterated that the land dispute was before the LC 1 Court. The blood on the Accused's shirt was on his sleeves and the front lower part of his shirt as well as around the knees of his trousers. The shirt was white. - 15 [29]. The third witness presented by the Prosecution was **Inspector of Police, Kilama Ben**, PW 3, 59 years old presently attached to Pader Police Station and in March, 2016 he was at Agago Police Station and the Investigating Officer. The District CID Officer assigned to him the case on the 12th March, 2016. - [30]. PW 3 testified on oath that he visited the scene which he travelled to together 20 with the Scene of Crime Officer (SOCO), whom he did not name, and they were led there by one Olweny. At the scene he observed that the body of the Deceased was in her house lying on the floor with her legs facing the doorway. The thighs were open and she was completely naked. - [31]. In regard to his role at the scene, he testified that he photographed the scene and 25 the deceased following which he left the Doctor, whom he did not name, to carry out the post mortem and remained as it was being done after which he returned to the Police Station to write his report.

- [32]. No mention was made of the investigation of the SOCO whom he supervised. This was of material significance and shall be considered further in assessing the evidence adduced by the Prosecution in the case. - [33]. According to his report, the Deceased was raped before she was murdered. The 5 private parts had fluid and there were bruises on the neck and the chest below the breast. He drew a sketch map which upon confirmation of his handwriting, name and signature was admitted on the Record of the Court as **Exhibit "PE1".** He explained the key, showing Point "A" the **"point of wait"**. Points "B" and "C" were the marks of the shoes of the assailant from Deceased's house. Point 10 "E" where the Deceased's body was found. No. 3 was the route the assailant followed after killing the Deceased. No. 5 was the grass near the home. "D" was the neighbours home. He observed that the shoe marks went first to the house of the Deceased and then came out which he followed but found that they disappeared at a road – a path. - 15 [34]. In cross examination, PW 3 admitted that the scene was already tampered with by the time he arrived, the Police at Agago Town Council had arrived earlier and the Accused had already been arrested which arrest he did not witness. He also admitted that the body which was naked but covered by unknown persons was already tampered with, adding that some people sleep naked. He did not know 20 what the fluid on the Deceased was and did not see blood on the body of the Deceased. - [35]. In regard to the examination and investigation of the SOCO, he testified that the fluid on the vagina of the Deceased was removed by the SOCO who also took a blood sample with a syringe. He did not see the SOCO extract any other blood 25 from the body of the Deceased. This was the extent of his testimony on forensics.

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- [36]. As regards the shoes of the assailant, he testified that they were sandals such as slippers and not boot marks. - [37]. PW 3 insisted that he took pictures prior to leaving the scene further insisting that he could not have left the scene without having taken pictures. The Court 5 notes that no pictures allegedly taken by PW 3 were tendered in evidence. - [38]. In re-examination, he confirmed that people were gathered at the scene. - [39]. Finally, in questions from the Court, PW 3 confirmed that the date on the sketch plan of 11th March, 2016 referred to the date of the murder. - [40]. The fourth and last witness presented by the Prosecution was, **Okello John** 10 **Paul**, PW 4, 44 years old, a Clinical Officer at the time. - [41]. PW 4 testified on oath that he is presently a Senior Health Educator in the Office of the District Health Officer, Agago District. He holds a Diploma in Clinical Medicine and Community Health (from the present Gulu School of Health Sciences), 2007 and other later qualifications. - 15 [42]. He claimed to have practiced Clinical Medicine from 2007 to 2021 and his duties included filling Police Forms on request including PF3A and PF24 in regard to which he makes examination and prepares reports which he can identify by his handwriting, names, signature and the stamp of the Medical facility. The Court was curious as to his qualifications from the outset. - 20 [43]. In reference to Police Form PF 48C, he testified that he performed a Post Mortem of the Deceased who was identified by one Owiny Gino and he examined the body on the 11th March, 2016 at the scene where the Deceased was discovered in her home. - [44]. His findings were that she was an elderly female lying on her back in her house 25 with her legs pointed towards the doorway. There was no bed but a mattress with mat underneath which was empty.

- [45]. In regard to the condition of the body of the Deceased, he testified that the body was clean and had no injury of any sort except a small swelling on the lower right lip and a streak of blood in the mouth. There were no external marks of violence on the outside. In his view, the cause of death was probably strangulation and he 5 observed that the deceased defecated on herself prior to death. The Post Mortem Report PF 48C was tendered in evidence and admitted on the Record of the Court as **Exhibit "PE2"**. - [46]. In cross examination, DW4 immediately admitted that he is not qualified to conduct post mortems. Nonetheless, he continued to testify that he's familiar 10 with the circumstances of onset of death including *rigor mortis* and its characteristics which occurs in every death. In his view, defecation upon death is indicative of failure to breathe where the gas in stomach finds its way out. Asphyxiation is almost the same and the person does not get enough air causing them to falls down defecate. In his view, if the deceased had fallen down there 15 would be wounds on her knees and elbows. Instead the injuries were on her lower lip. He did not see missing teeth and did not pick any teeth at the scene. He examined the neck and did not see any broken bone. In his view, one may be strangled without a broken bone. He refers to paragraph 9 of his report which refers to strangulation prior to death. Otherwise, in his view the Deceased was 20 above 60 and was healthy of which he ascertained her age by **"normal look"**. - [47]. PW 4 admitted that he did not open the Deceased's body. He also did not find the Accused at the scene and did not examine the Accused. - [48]. In re-examination, PW 4 confirmed that he was not qualified to do the Post Mortem but did it on request and in consultation with District Health Officer. 25 He admits that he did not have facilities for Post Mortem, adding that he did not open the Deceased's body because there was no theatre.

#### **The Defence Submission on No Case to Answer.**

- [49]. The Defence submitted a No Case to Answer under **Section 73 of the Trial on Indictments Act, Cap. 23** emphasizing that the burden to prove all the ingredients of the offence lay on the Prosecution beyond reasonable doubt and 5 does not shift with the Accused presumed innocent until proven guilty. - [50]. Citing the **Evidence Act, Cap. 6** and authorities argued that the Prosecution has the burden of proving all ingredient of the offence of murder beyond reasonable doubt by evidence adduced before the Court to establish that the Accused participated in commission of the offence and placing him at the scene of the 10 crime. Any doubt would have to be resolved in favour of the Accused. - [51]. The Defence based on their view of the evidence of PW 1, PW 2, PW 3 and PW 4 - did not contest the death of the late Akello Emma but contended that there were serious doubts regarding how she died and what caused her death. Referring to the testimony of PW 1 regarding whether the door of the Deceased's 15 house was bolted from the inside as well as the Deceased's legs wedging the door tight with no opening for anyone to come out from inside, the Defence contended that doubt was cast on whether anyone could have accessed the victim and secured the door inside from the outside. - [52]. The Defence further highlighted contradictions between PW 1 and PW 4 in 20 regard to testimony of sexual assault and broken teeth. They further contended that the Accused was being incriminated simply because of an alleged land dispute which was not proven by documentary evidence or calling the person(s) hearing the dispute and took issue with PW 2 as being biased against the Accused and motivated to lie. The Defence contended that the testimony of PW 2 25 contradicted the testimony of PW 4 in respect of injuries sustained by the Deceased. Another contradiction highlighted is the testimony of PW1 that she observed scratches on the Accused's chest which PW 2 did not observe. - [53]. In regard to the testimony of PW 3, the Defence highlighted his testimony to the effect that the SOCO obtained samples from the Deceased but was not called to testify. In any case, PW 4 contradicted the testimony on injuries of PW 3. - [54]. Concerning PW 4, the Defence emphasised his admission that he was not 5 qualified to conduct Post Mortems but went ahead and relied on his findings especially as regards to him not having seen any broken teeth contradicting PW 1, PW 2 and PW 3 on the manner of death. They fault PW 4 for not opening the Deceased's body to establish whether there were any pre-conditions to lead to sudden death and prayed that his testimony is **"taken with care and doubt"**. - 10 [55]. In the Defence's view, the inconsistencies in the testimony cast doubt as to whether the death of the Deceased was in fact a homicide. There was no direct or circumstantial evidence putting the Accused at the scene of the crime or incriminating him in the death of the Deceased. Moreso, considering that none of the witnesses saw the Accused strangle or rape her. In any case, circumstantial 15 evidence would require corroboration to be considered valid evidence. - [56]. The Defence criticizes the investigation by the SOCO who took samples from the Deceased as part of his investigation and failed to adduce any report or findings to the Court submitting citing **HCCC No. 085/2010: Robert Sekabira & 10 Others Vs. Uganda**, that where investigations are not properly conducted 20 it amounts to an abuse of the fundamental rights of the Accused. The Defence prayed that the Court condemn the manner in which the State investigated and handled the case and prayed that the Accused is acquitted on No Case to Answer. [57]. In conclusion, the Defence submitted that the testimony and evidence of the Prosecution witnesses had no evidential value pertaining to proof of the 25 participation of the Accused in the death of the Deceased since it was so manifestly unreliable and unsafe to convict should the Accused elect to remain silent hence the Court having to acquit the Accused.

#### **The Prosecution Submission on No Case to Answer.**

- [58]. The Prosecution contested the No Case to Answer submission and outlined the definition and requirements for establishment of a *prima facie* case in a murder Trial under **Section 73 of the Trial on Indictments Act, Cap. 23** citing 5 authorities and acknowledging that its only if a *prima facie* case is made out against the Accused that he should be put to his defence and conversely when a *prima facie* case is not made out he would be entitled to be acquitted. - [59]. The Prosecution submitted that the Two (2) considerations justifying a finding that no *prima facie* case has been made are; - when there has been no evidence to 10 prove essential ingredients in the alleged offence and when the evidence adduced by the Prosecution has been so discredited as a result of cross-examination, or is manifestly unreliable that no reasonable Court could safely convict on it or require the Accused to be put to his defence. - [60]. With the essential ingredients of murder established as; occurrence of the death 15 of a human being, the death being caused by some unlawful act, the unlawful act being actuated by malice aforethought and the Accused being responsible for the unlawful death the Prosecution submitted in regard to the essential ingredients as outlined hereunder relying on the testimony of PW 1, PW 2, PW 3 and PW 4. - [61]. In regard to the first ingredient being the death of a human being, the 20 Prosecution relied of the testimony of the observance of the Deceased's body by PW 1 and PW 2 and their testimony to her burial as well the testimony of the PW 3 who visited the scene and the Post Mortem performed by PW 4. - [62]. In regard to the second ingredient of the cause of death being unlawful, the Prosecution relied on the testimony of PW 1 who together with Jino Oonyuk 25 had to force open the door of the Deceased's house and the manner in which her body was found with the legs spread wide apart indicating sexual abuse and the Deceased having lost Four (4) teeth.

- [63]. The Prosecution also relied on the Post Mortem performed by PW 4 on the Deceased and the report of injuries including swelling on the lower right lip with blood in the mouth and the conclusion of the cause of death being strangulation owing to the fact that the Deceased had defecated on herself. The Prosecution 5 contended that the possibility of the Accused having fallen was ruled out because there were no injuries on her indicating a fall. The Prosecution therefore submitted that the Deceased's death was was a homicide and thus unlawful. - [64]. In regard to the third ingredient being the unlawful act being actuated by malice aforethought, the Prosecution referred to the definition under **Section 191 of** - 10 **the Penal Code Act, Cap. 120** and referencing the Post Mortem report by PW 4 and his findings submitted that the injuries observed occasioned on the Deceased and the conclusion of strangulation ruled out the possibility of a fall and whomsoever caused the unlawful death of the Deceased did so with malice aforethought. - 15 [65]. In regard to the fourth ingredient being whether the Accused was responsible for the unlawful act resulting in the death of Deceased, the Prosecution admitted that they were relying on circumstantial evidence since there was no direct evidence of the participation of the Accused. - [66]. To that effect the Prosecution referenced the testimony of PW 1 and PW 2 in 20 regards to a land dispute between the Accused and the Deceased before the Local Council Courts and their respective testimony in regards to blood stains and bruises on the Accused's chest as well as the actions of the Accused in handing himself over to the Police. - [67]. The Prosecution concluded by submitting that in their view the foregoing 25 established a *prima facie* case against the Accused who had a Case to Answer and in the circumstances requiring him to be put to his defence.

#### **Representation.**

- [68]. Counsel, Mr. Ojara Patrick, Resident Senior State Attorney, represented the Prosecution. - [69]. Counsel, Mr. Silver Oyet Okeny, represented the Accused on State Brief. The 5 Accused was present in Court throughout the entire proceedings.

#### **Proceedings before this Court.**

- [70]. The Prosecution had concluded its evidence and closed it case on the 25th January, 2024. - [71]. The Defence informed Court that it intended to submit a No Case to Answer 10 and prayed for timelines to file Written Submissions. - [72]. The timelines were given by the Court with the Defence filing on or before the 29th January, 2024 and the Prosecution filing on or before the 1st February, 2024 and the Ruling fixed for the 15th February, 2024. - [73]. The Defence filed on the 29th January, 2024 and the Prosecution filed on the 2nd 15 February, 2024. - [74]. At the proceedings on the 15th February, 2024 the Defence informed Court that they had not been served by the Prosecution but nonetheless urged Court to proceed and consider the Written Submissions already filed on the Record of the Court.

#### 20 **Considerations and Determination of the Court.**

- [75]. Murder is provided for by **Section 188 and 189 of the Penal Code Act, Cap. 120**. The burden of proof lies on the Prosecution and does not shift. The standard of proof is beyond reasonable doubt. - [76]. In pleading not guilty to the offence, the Accused puts all the essential ingredients 25 of the offence into issue. The Law presumes the Accused innocent. The prosecution is required to prove all the essential ingredients.

- [77]. The ingredients to prove beyond reasonable doubt on a charge of murder are: - i. The occurrence of the death of a human being. - ii. The cause of death being an unlawful act. - iii. The unlawful act being actuated by malice aforethought. - 5 iv. The accused being the cause of the unlawful death. - [78]. Upon the Prosecution closing its case, **Section 73 of the Trial on Indictments Act (TIA), Cap. 23** requires that this Court determines whether or not the evidence adduced has established a *prima facie* case against the Accused. Only if a *prima facie* case is made out against the Accused is he put to his defence. - 10 [79]. **Section 73(2) of the Trial on Indictments Act** provides: **"… where at the close of the prosecution case a prima facie case has not been made out, the Accused would be entitled to an acquittal." See: Wabiro Alias Musa Vs. Republic [1960] EA 184.** - [80]. A *prima facie* case is defined as: - - 15 **"One where a reasonable tribunal properly directing its mind on the Law and evidence would convict the Accused if no evidence or explanation was set up by the Defence."** - **"A prima facie case could not be established by a mere scintilla of** 20 **evidence or by any amount of worthless discredited prosecution evidence. The prosecution though, at this stage is not required to have proved the case beyond reasonable doubt since such a determination can only be made after hearing both the prosecution and defence." See: Rananlal T Bhatt Vs. Republic [1957] EA 332.** - 25 [81]. The considerations therefore that justify a finding of no *prima facie* case established against the Accused are: -

- **i. When there has been no evidence to prove an essential ingredient in the alleged offence.** - **ii. When the evidence adduced by the prosecution has been so discredited as a result of cross examination, or is so manifestly** 5 **unreliable that no reasonable Court could rely on it.**

**It is important to note, that for the Accused to be out on defence, Court must be ready to convict if he offers no explanation on the credible, admissible and high quality evidence in support of each ingredient of the** 10 **offence but not to shift the burden of proof to the Accused as any conviction must be based on the strength of the prosecution." See: Uganda Vs. Alfred Ateu [1974] HCB 179.**

**See: SC 0489/2021: Uganda Vs. Wandera Peter Alias Salongo.**

- [82]. The Accused does not have any obligation to prove his innocence. He may in 15 fact opt to remain silent, make an unsworn statement, testify on oath and, or elect to call witnesses or for that matter decline further appearance since the burden herein does not shift. **See: Ssekitoleko Vs. Uganda: [1967] EA 531**. - [83]. The Court has duly considered the testimony of PW1, PW2, PW3 and PW4 together with the Exhibits admitted on the Record of the Court Exhibit "PE1", 20 "PE2" and "DE1" and the submissions of both the Defence and the Prosecution filed on Court Record in reaching its determination on whether or not there is a case for the Accused to answer in respect of the offence of murder contrary to

#### **Section 188 and 189 of the Penal Code, Cap. 120**.

[84]. A review of their testimony and evidence immediately establishes that there is no 25 direct Prosecution eyewitness evidence in respect of the circumstances of the death of the Deceased since she was only found dead in her house in the morning.

[85]. The Prosecution is therefore placing reliance entirely on circumstantial evidence to prove their case. The Court accordingly hereby warns its mind of the dangers of convictions based on uncorroborated circumstantial evidence.

### **See: Akbar Hussein Godi Vs. Uganda: SCrCA No. 3/2013; Janet Mureeba**

# 5 **& 2 Others Vs. Uganda: SCCrA No. 13/2003; Bogere Charles Vs. Uganda: SCCrA No. 10/1998.**

- [86]. The first ingredient, the occurrence of the death of a human being, is not contentious. This was proved by PW1, PW2 and PW3 whom all observed the lifeless body of the late Akello Emma - now referred to as the Deceased. PW1 10 niece of the Deceased discovered the body she identified as her late Aunt Akello Emma on the morning of the 11th March, 2016 which she covered with a piece of cloth to protect the modesty and dignity of the Deceased. PW2 the Head of the Clan to which the Deceased belonged viewed and identified the body. PW3 the Investigating Officer observed and examined the body of the Deceased on the 12 15 th March, 2016, drew a sketch plan and reported his observations. PW1 and PW2 further testified to burial of the Deceased. The Post Mortem report in respect of the Deceased prepared by PW4 shall be examined while considering the next ingredient of the offence. - [87]. The Court is satisfied that the first ingredient being the occurrence of the death 20 of the late Akello Emma a human being has been proved beyond reasonable doubt by the testimony of the witnesses whom observed her lifeless body, identified her and testified to her burial. Their evidence in respect of proof of the death of Akello Emma based on their observation is credible and consistent and therefore duly accepted by the Court.

## 25 **See: High Court of Uganda Criminal Session Case No. 161/2015 (Moroto): Uganda Vs. Adei John (Hon. Justice Stephen Mubiru).**

- [88]. The second ingredient requires the cause of death being an unlawful act to be proved by the Prosecution and the Court shall examine the available evidence. In **R Vs. Gusambuzi s/o Wesongo [1948] EA 15 EACA 63,** the position of the Law was stated to the effect that all homicides are presumed unlawful unless 5 authorized by Law or proved to have been accidental or excusable. - [89]. The Prosecution primarily relied on the Post Mortem report prepared by PW4 to prove that the death of the late Akello Emma was as a result of strangulation. - [90]. It however transpired during cross-examination and re-examination that PW4 who authored the report admitted in his testimony before the Court that he was 10 not qualified to conduct Post Mortems. - [91]. Upon being pressed as to why he performed the Post Mortem on the body of the Deceased which he was not qualified to do, he explained that he did so after consulting with and receiving authorization from the District Health Officer, Agago District. PW4 further testified, when asked whether he had dissected the 15 body of the Deceased, that he did not do so because he did not have the equipment and there was no operating theatre available. This, the Court takes to mean that even upon his admission that he was not qualified to conduct Post Mortems he would have gone further to dissect and examine the Deceased anyway had he had access to an operating theatre. PW4 was incorrigible. - 20 [92]. In **High Court (Gulu) Criminal Session Case No. 125/2015: Uganda Vs. Akena Nixon Gasfero**; Hon. Justice Mutonyi held in regard to Post Mortems and Autopsies: -

**"This is a highly specialized surgical procedure that consists of a thorough examination of a corpse to determine the cause of death and or** 25 **to evaluate any disease or injury that may be present. It is usually performed by a specialized medical doctor called pathologist.**

**However due to shortage of pathologists in Uganda Courts of law have accepted post mortem reports prepared by qualified doctors with some experience because they study pathology i.e. the branch of medical science that studies the nature, causes and effects of diseases and causes** 5 **of death. They can competently and authentically with a high degree of certainty and reliability advise court on the cause of death. Autopsy involves combing the entire body under very conducive environment with the use of medical equipment in search of the cause of death by a person knowledgeable in forensic medicine."**

10 [93]. In regard to the value of the evidence adduced in that case the Learned Judge held that: -

**"… His evidence on the cause of death is not authentic and reliable because he did not even know what he was supposed to do. The best he could do was to confirm death which even a lay person could do in the** 15 **circumstances of this case since the body was found floating on the water. This makes PE1, the purported Post Mortem PF 48 a useless piece of paper with no evidential value. The prosecution therefore failed to prove that the cause of death was unlawful. The deceased's death could have been as a result of drowning, once there is doubt; it has to be resolved in** 20 **favour of the accused person. Once the element of unlawful cause of death is not proved, the remaining elements are for academic reasons."**

[94]. The Learned Judge rejected the Post Mortem report produced in PF 48 by the witness described as a Comprehensive Nurse observing that he was holding out as a person qualified to carry out Post Mortems whereas he is not, whose 25 qualifications fell way below that of a Medical Doctor and noting that the PF 48 he completed had not even been referred to him by any Police Officer. In the final result, the Accused were acquitted on no case to answer.

**Also See: Civil Appeal 172/1989 (The Court of Appeal at Nakuru, Kenya) in Hillary Bwire Wafula Vs. Republic; For Reference and Comparison - See: Sections 11, 12 and 27 Inquests Act, Cap. 11 on Medical Practitioners.**

- [95]. The importance and value of a Post Mortem Report was further discussed in **CA** - 5 **Cr Appeal No. 24/1977: Fabiano Olukuudo Vs. Uganda** in which the Doctor (Kakande) was not called though his report was adduced in evidence, the Court citing **Juma Tabani alias Lokora and Another v. Uganda, E. A. C. A. Criminal Appeal No.100/74** held that: - - 10 **"It cannot be said that evidence of post-mortem examination is of a formal nature; it is of vital importance and we should urge that such medical evidence be always given in court. The importance of so doing is apparent also from Batala v Uganda, (1974) E. A. 402 where the court expressed in clear terms what is expected of post-mortem reports –**

**'What a court wants from a post-mortem report is a statement of everything abnormal about the corpse, not merely the pathologist's opinion as to the immediate cause of death. For example, details of nonfatal injuries may be of great value in corroborating or contradicting the** 20 **evidence of witnesses about the events preceding the death, and so be highly relevant to the question whether a killing constituted murder or manslaughter."**

[96]. In considering the Post Mortem Report produced in evidence, the Court cited **John Emitu Vs, Uganda E. A. C. A. Criminal Appeal No. 163/1972** observing 25 that Post Mortem Reports may overlook important injuries testified to by other witnesses and not observed and, or reported on by the Doctor or Medical Practitioner in their focus on the cause of death and held that: - **"We have all too often seen post-mortem reports which concentrate on what the doctor believed to be the cause of death and fail to mention other, often grave injuries. Such reports are of little value."**

- [97]. In the final result, the Court considered and relied on the nature of injuries 5 mentioned in the report as well as testimony of witnesses presented and held that the killing was unlawful. The Appeal was allowed, the Court quashed the conviction for murder and substituted it with a conviction for manslaughter. - [98]. The Courts have been emphatic that the evidence of examination by a Doctor should be adduced - much as numerous cases abound where no Post Mortem 10 report was adduced in evidence before the Court.

# **See: R Vs. Juma Mafabi (1945) 12 EACA 45; CA Cr Appeal No. 23/1977: Amisi Dhatemwa Alias Waibi Vs. Uganda**; **Criminal Session Case No. 161/2015 (Moroto): Uganda Vs. Adei John.**

- [99]. This Court agrees with the finding in **High Court (Gulu) Criminal Session** - 15 **Case No. 125/2015: Uganda Vs. Akena Nixon Gasfero** to the effect that a Post Mortem report by an unqualified person is of no evidential value whatsoever and hereby finds that the Post Mortem report PF 48C of PW4 is of no evidential value. Accordingly, the Court may not rely on it in considering the ingredient of whether an unlawful act was committed herein. - 20 [100]. The matter that remains outstanding is whether in establishing homicide unlawful death may be determined in the absence of a Post Mortem report and based only on the testimony of witnesses who observed the Deceased. - [101]. As a preliminary, the Court accepts that it is the standard that a determination of an unlawful act by an Accused causing death to the Deceased is generally based 25 and should be based on scientific evidence such as Post Mortems and Autopsies.

- [102]. However, the Court is also of the considered view that witness testimony and other circumstantial evidence may also result in a pertinent authoritative conclusion to the required standard of beyond reasonable doubt. - [103]. The Court finds itself having the unenviable task of determining cause of death - 5 by an unlawful act without the benefit of a Post Mortem report which has been thoroughly discredited. - [104]. In **High Court of Uganda Criminal Session Case No. 161/2015 (Moroto): Uganda Vs. Adei John** in which the Prosecution did not produce a Post Mortem Report and the Court considered factors in establishing homicide by 10 unlawful death the Hon. Justice Stephen Mubiru held: -

**"In order to establish the death as a homicide, direct or circumstantial evidence must sustain a causal link between an unlawful act attributed to another human being and the eventual death of the deceased … The evidence should rule out the possibility of an accidental, suicidal or** 15 **natural death … In absence of a post mortem examination report in respect of the body of the deceased in the instant case, I have to determine the cause of death on basis of other available evidence.**

- [105]. The Court then went on to consider the evidence of witnesses and circumstances of the case to establish whether there was a causal link between the actions of 20 the Accused and the cause of death of the Deceased in the final result determining that the cause of death was not proved beyond reasonable doubt since it did not rule out the probability of accident and other unassociated causes. The Accused was acquitted. - [106]. It must be emphasized that the causal link argument often presupposes that the 25 witnesses observed an overt action resulting in death that may not require further explanation i.e. fatal gunshot, fatal blow, fatal stab, etc. to generally be considered credible. Such circumstances, however, do not arise in the instant case.

- [107]. The Court has considered the testimony of the PW1, PW2 and PW3 of whom PW1 found and observed the lifeless body of the late Akello Emma lying on the floor with the legs against the door and described the thighs/ legs splayed with what she identified as semen nearby, missing teeth and swollen breasts; PW2 5 observed the lifeless body of the late Akello Emma lying on the floor and described the splayed thighs/legs with semen around the genitalia and also noticed the missing teeth with bloodied mouth; PW3 observed the lifeless body of the late Akello Emma on the 12 th March, 2016 – the next day and similarly described the naked lifeless body of the Deceased with thighs/legs splayed with 10 unknown fluid though he did not see blood with bruises on the neck and chest below the neck. Their testimony on the state of the body was straightforward, consistent and truthful and therefore accepted by Court. - [108]. In the circumstances, the Court finds it fit to apply the principle of *Corpus Delicti* – "body of crime" being the essential facts and circumstances taken together and 15 aggregated in order to prove a crime to wit homicide and unlawful act or cause.

### **See: People Vs. Scott, 1976 Cal. App. 2d 458.**

- [109]. The observation of semen, which in and of itself does not require a scientific report to ascertain, confirms a male presence in the same room as the Deceased. The corresponding observation of the Deceased's lying on the floor naked with 20 thighs/legs splayed is consistent with a sexual act. The description of missing teeth, scars and blood described is consistent with injuries which could not have been self-inflicted. The testimony of the unbolted door obstructed by the Deceased's legs which was accepted by the Court is consistent with intrusion. - [110]. The foregoing are the logical inferences in regard to the inculpatory factors 25 establishing an unlawful act in the death of the late Akello Emma; and, conversely exculpatory factors in eliminating natural causes, suicide and accident as the cause of death.

Page | 23

- [111]. Even considering the inconsistencies including: PW1 testified to Four (4) missing teeth while PW3 testified to Three (3) missing teeth; PW2 testified to blood on the Deceased's mouth which PW1 did not mention and PW3 did not see; PW1 and PW3 testified to injured breasts which PW2 did not mention; and, 5 PW3 testified to injuries to the neck which PW1 and PW2 did not mention - the Court finds that the inconsistencies are not grave and can be attributed to flux of time as well as the different witnesses' capacity to recollect Eight (8) years after the incident and not to deliberate untruthfulness. - [112]. In view of the above descriptions of the body of the Deceased found in her house on the morning of 11 10 th March, 2016, the Court is satisfied from the circumstantial evidence of the *Corpus Delicti* that a hypothesis of natural causes, suicide or accident would not stand as a reasonable explanation for the cause of death of the late Akello Emma and are therefore eliminated. The Court must therefore, based on the *Corpus Delicti,* come to the irresistible conclusion that the 15 death of the late Akello Emma was a homicide. - [113]. Accordingly, the Court restates the first principal that in Uganda every homicide is considered and presumed unlawfully caused and thereby finds that the death of the late Akello Emma was a homicide and thus unlawfully caused. The Court finds the second ingredient proved beyond reasonable doubt.

### 20 **See: Criminal Session Case No. 157/2014 (Arua): Uganda Vs. Mawa John.**

[114]. In regard to forensic evidence which PW 3 testified was collected at the scene by the SOCO, it was conspicuously absent. In what seems to have become a pattern, evidence obtained by Police during the investigation was not adduced in Court. Whereas the SOCO was not presented to testify before the Court, PW 3 who 25 claims to have taken photographs at the scene did not adduce them in evidence.

- [115]. The third ingredient requires proof of malice aforethought. In so doing, the Court has further considered the testimony and evidence of PW1, PW2 and PW3 before the Court in regard to the state of the body of the Deceased. - [116]. The injuries inflicted on the Deceased have been duly considered by the Court 5 including the missing teeth, swollen breasts with blood to the mouth. These are injuries inflicted to the upper part of the body around the head. The head is undoubtedly the most vulnerable part of the body and most prone to fatal injury. It is no wonder that the witnesses testified to strangulation which however could not be determined with certainty in view of the fate of the Post Mortem report 10 and much as the Court determined the death of the Deceased to be a homicide. - [117]. Moreover, the presence of semen on the body of the Deceased in addition to the injuries aforementioned and the finding of a homicide and an unlawful act based on the *Corpus Delicti* leads the Court to the irresistible conclusion that there was malice aforethought which the Court finds is proved beyond reasonable doubt. - 15 [118]. The fourth ingredient being whether the Accused was the cause of the unlawful death of the late Akello Emma is the most important in the circumstances of the instant case, especially in view of the finding of the Court that there was no direct evidence and that the only available evidence the Court can rely on is circumstantial evidence. The Court warns its mind again on the dangers of relying 20 on uncorroborated circumstantial evidence. - [119]. PW1, PW2 and PW3 admitted in cross examination that they did not see the Accused kill the Deceased and they also did not see the Accused rape the Deceased. PW1 and PW2 were however emphatic that the Accused had blood stains on his shirt. PW2 added that there were also blood stains on the Accused's 25 trousers. Both PW1 and PW2 linked the blood on the Accused's trousers together with bruises, bite marks and scratch marks on his chest to his handing himself over to the Police at Patongo Police Station.

- [120]. In their view, this together with an alleged land dispute being the motivation for him to kill the Deceased and the fact that the Accused lived about Five Hundred (500) meters from the Deceased established the Accused's involvement in the death of the Deceased and consequently his guilt. Undoubtedly, this patched up 5 evidence is insufficient to put the Accused at the scene of the crime. - [121]. The Court is conscious of and has earlier referenced fundamental gaps in the forensic evidence of the Prosecution in regards to linking the Accused to the scene and the death of the Deceased, including; - the Prosecution's failure to produce the evidence of the SOCO whom PW 3 the Investigating Officer 10 testified had taken blood and other fluid samples including suspected semen from the Deceased which through DNA testing would have either linked and implicated or otherwise exonerated the Accused; the failure to adduce in evidence any forensic or physical evidence from the allegedly bloody clothes of the Accused which through DNA could have matched or excluded him from the 15 blood of the Deceased; the failure to adduce in evidence PF 24 mentioned in the indictment for the examination of the Accused following his arrest and even the photographs taken by PW 3 for the Court to observe for itself the state of the Deceased's body. This is aside from other evidence stated in the Indictment.

[122]. **In SCCrA No. 030/2014: Kato John Kyambadde & Anor Vs. Uganda**, the 20 Supreme Court considered the duty of the Director of Public Prosecution to present material witnesses and evidence and held: -

**"In the case of Bukenya and others vs Uganda [1972] EA 549 the Court of Appeal for East Africa set the principle which has since been followed by** 25 **our Courts as follows: - it is well established that the Director has a discretion to decide who are the material witness and whom to call but this needs to be qualified in three ways.**

**First, there is duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.**

5 **Secondly, the Court itself has not merely the right but the duty to call any person whose evidence appears essential to the just decision of the case (Trial on indictments Decree, S.37).**

**Thirdly while the Director is not required to call a superfluity of witnesses** 10 **if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the Court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses if called, would have been or would have tended to be adverse to the prosecution case."**

- 15 [123]. Accordingly, the Court considers that once the Prosecution omitted to summon its most essential witness who would have been the SOCO and his forensic evidence which could have directly implicated or exonerated the Accused it is thereby presumed that his testimony and, or evidence not produced was adverse to their case. The benefit of omitting the evidence is therefore considered in 20 favour of the Accused. This finally proved fatal to the Prosecution case. - [124]. In the circumstances and with the failure of the Prosecution to adduce the forensic and physical evidence which they obtained and which would have with a high degree of certainty linked the Accused to the scene and death of the late Akello Emma or altogether exonerated him, the Court finds that the fourth 25 ingredient has not been proved beyond reasonable doubt. For the avoidance of doubt, the Court does not extend the *Corpus Delicti* analysis to identification of the assailant(s) but limited it to establishing whether there was an unlawful act.

- [125]. In view of the failure to prove the essential ingredient of participation of the Accused in the homicide and unlawful act which caused the death of the Deceased with malice aforethought, it is trite Law that once an essential element of the offence is not proved, it cannot be said that a *prima facie* case has been 5 established. - [126]. This Court therefore finds that the Prosecution has not established a *prima facie* case against the Accused and he has No Case to Answer to put him on his defence. - [127]. The Accused is thereby acquitted of the offence of murder contrary to **Section** - 10 **188 and 189 of the Penal Code, Cap. 120**. He is therefore discharged unless held on any other Lawful charge. - [128]. It is so ordered.

### **Orders of the Court.**

- 15 [129]. Accordingly, the Court makes the following Orders: - 1. The Prosecution has not proved all the ingredients of murder against the Accused. - 2. The Prosecution has therefore not established a *prima facie* case against the Accused. - 20 3. The Accused has No Case to Answer. - 4. The Accused is thereby Acquitted, unless held on other lawful charge.

It is so Ordered.

**Signed and Dated on the 5th day of March, 2024. (High Court, Kitgum).**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## 5 **Delivery and Attendance.**

This signed and dated Ruling has been delivered in Open Court this **Tuesday, the 5th day of March, 2024** and the parties present are recorded hereunder.

- 1. Prosecution Mr. Ssozi Yusuf, State Attorney standing in for Mr. Ojara Patrick, Resident Senior State Attorney. - 10 2. State Brief/Defence Ms. Anena Lagoro Clare standing in for Mr. Oyet Silver Okeny. - 3. Court Clerk/Interpreter Mr. Atube Michael, - 4. Assessors Ms. Lamunu Esther and Mr. Okumu Raymond.


15 **Philip W. Mwaka**

**Acting Judge of the High Court.**

**5 th day of March, 2024.**