[2007] UGHC 44

## THE REPUBLIC OF UGANDA


#### **JUDGEMENT**

The two defendants OTALAI JOHN Alias OBOTE and EGARU BONNY are indicted for murder an offence contrary to Section 188 and punishable under Section 189 of the Penal Code Act.

It is alleged that the two aforementioned accused and others still at large on the night of 3^rd October 2001 at Mailo Mukaga village, Kamod Parish, Bogondo Sub-county in the District of Soroti murdered APIDING MARY.

Prosecution examined five witnesses in a bid to prove its case. Akello O Harriet was the sister-in-law of the deceased. ln her testimony she testified that at the time material to this case light from flashing torches and the door to her house being banged by a gang that was speaking Swahili. She was familiar to her. Deceased was alone staying in her house and heard these a people were asking for money able to identify the voices of those speaking which voices she claimed were

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They demanded that deceased opens for them and when she refused they started pulling down part of the wall made of adobe bricks She by this time had left her house and hiding in the nearby short bushes from where she could see all that was going on

Later deceased opened her door and attempted to flee but was chased and after a short distance she fell down. The witness then saw a man she recognized as Ajwat, not in court, cut the deceased's arm. All this time but these people were saying that she was to pay for their houses that had been destroyed. Otalai in particular is said to have told deceased that she deceased was crying for mercy while naming her attackers as OTALAI, EGARU, AND AJWATI. She begged the assailants to let her say a prayer,

had been stubborn but she was to be stubborn no more. ln all she saw seven attackers to note: AJWAT, ALAPIYO, OTIM, OMAJUNGO, EGARU AND OTALAI.

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All these people disappeared from the village after the murder. The following morning she reported to police mentioning all the above persons. Haden Abuo appeared as the 2nd witness and testified that Akello Harriet (PW1) was her daughter-in-law while Apiding Mary was her daughter. At the material time while in her own house she had her daughter crying while saying "OTALAI you are killing me for nothing". The daughter was also mentioning EGARU as one of her assailants. OTALAI was asking deceased why her father brought court brokers to destroy their home. She ran out of her house and hid in the nearby bushes from where she could see these people chasing the deceased.

llodi son of Ajwat is the father of the deceased. He testified that 2nd defendant was the son of lkome with whom he had a land dispute. At one time EGARU speared his wife as she worked on the disputed land. He had been arrested and convicted.

No. 21666 D/CPL Dusika visited the scene of crime on 03/10/2001. At the t scene he found a dead body of a female. He was shown her hut and found the door broken. The body was in the nearby bush. lt has a cut wound on the neck and the left arm and lying in a pool of blood. He was given the names of the suspects which included EGARU, OTALAI, OMINO, OMAJONG AND AJWAT. The L. C. officials of the area reported to him that O all those mentioned had deserted the village. He took the body to Soroti Hospital for post mortem examination.

Dr. Opio Martin is a Medical officer of Soroti Regional Hospital. He examined the body of a female called APIDING MARY at Soroti Mortuary identified to him by ADIKE. The body had three deep cut wounds on the head and on the left fore arm. Cause of death was brain death.

#### The law:

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Murder is committed when the accused commits the actus rens of the homicide with malice aforethought. lt is the most heinous form of homicide. Prosecution has to prove:

a) That the alleged victim is dead.

- b) That he/she died as a result of an unlawful act or omission - c) By the accused at the bar, and - d) With malice aforethought.

# Burden of proof

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The burden to prove the guilt of the accused rests entirely on the prosecution and does not shift to the accused unless a plea of insanity has been put forward as a defence

# Deqree of proof

The burden is only discharged on proof beyond any reasonable doubt. Any doubt however slight so long as it is reasonable must be resolved in favour of the accused.

### Alibi

An accused person who puts foruvard an alibi as an answer to a charge as has been done in this case does not assume any burden of proving that burden on the prosecution of proving the guilt of the accused beyond answer. Ssenfa/e Vs Uganda [1968] EA 365. As a general rule of law the

reasonable doubt never shifts whether the defence set up is an alibi or something else.

[1963] EA 206. Sekitoleko Vs Uganda [1967] EA 531, Leonard Aniseth Vs Republic,

### ldentification:

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It has been observed that "experience show that visual identification is important, whether a stranger is mistaken for a friend, or a victim gains no more than a fleeting glance at his assailant". CRIMINAL EVIDENCE 3'd Edition RICHARD MAY. There is therefore special need for caution when the prosecution case depends on evidence of visual ldentification. One identifying witness can support another provided that the quality of the evidence is good enough. WEEDER [1980]71CR. APP. R. 871.

The conduct of the accused may also provide supporting evidence satisfied that the sole reason for its being put forward was to deceive the court as the issue of identification Similarly, ldentification evidence may sometimes be supported by the fact that the accused has put forward a false alibi. But here the court must be

### Common intention

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Where two or more persons form a common intention to prosecute an was probable consequence of the prosecution of that purpose each of them is deemed to have committed the offence. Section 20 of Penal Code Act. unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission

Applying the above principles of the law to the case before me, there is no indeed dead and buried. There is no doubt that she died as a result of an unlawful act and that the unlawful act was committed with the necessary doubt that APIDING MARY the alleged victim of the murder is dead. She is malice aforethought.

What remains to be resolved is the solentity of the perpetrators of that heinous act.

I had Akello Harriet the sister-in-law of the deceased before me. I subject her demenour while in the witness box to an anxious and meticulous examination. She gave her evidence in a straight forward manner without prevaricating. I have no doubt in my mind that she was a truthful witness. ^I

accept her evidence that she heard deceased pleading with her assailants while naming their names. The two accused persons were among those mentioned. I accept her evidence that as a person very well known to the accused persons and a close relative to that matter she could identify their voices despite the fact that it was dark

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I entertain no scintilla of doubt that she could have been an honest yet a mistaken witness. She heard the accused cutting and heard the deceased unhesitatingly accept the evidence of the old woman the mother of deceased that she too heard her daughter plead with her killers as she mentioned their names. The evidence of PW1 and PW2 is supportive of each other. I accept it in total. calling out their names while pleading with them to spare her life. ^I

I accept the evidence of the investigating officer who visited the scene and accused persons. I accept his evidence that the L. Cs of the area and the local residents told him that the suspects had left the village. ln fact the two the evidence that the rest of the suspects named alongside the accused was immediately given the names of the suspects who included the two accused were arrested from their village and after a long search. I accept the evidence of identification. I dismiss the alibi put forward by each accused as a mere shun and only designed to drail the course of justice. are still at large and in hiding. The running away from the village reports

ln agreement with the lady assessor, I found both accused guilty of the offence charged and convict them accordingly

J. B. A. Katutsi JUDGE 20t4t2007

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#### Semeraba

The accused have no previous conviction. They murdered an innocent person despite her plea to them to spare her life.

They deserve no leniency and call for maximum sentence.

J. B. A. Katutsi JUDGE

## Ewatu


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My hands are tied.

### Sentence

ln cold blood the accused took away the life of an innocent person. There is nothing to stop court for passing the only sentence authorized by law, That is the two will suffer death in a manner authorized by the law.

J. B. A. Katutsi

JUDGE