[2024] UGHC 1200

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA OF HOIMA AT KYANGWALI

## CRIMINAL SESSION CASE NO.0123 OF 2022

UGANDA ...................................

### **VERSUS**

RUTABAGISA BARAKA..................................

Before: Hon. Justice Byaruhanga Jesse Rugyema.

## **JUDGMENT**

- $[1]$ The accused Rutabagisa Baraka was indicted with the offence of Murder C/ss 188 & 189 CPA. It is alleged that on the 26/2/2020 at Kasonga village in the Kikuube District, with malice aforethought, the accused unlawfully caused the death of Horukiri Bahati. The accused pleaded not guilty to the offence. - The prosecution case is that the accused and the deceased were $[2]$ neighbours on Block 29 in Kyangwali Refugee settlement. On the 26/2/2020 at around 11:00am, the deceased and his neighbor Bisimwa **Venna** (PW1) went to the accused's place for a drink. The accused owned a shop/bar. The accused and PW1 took drinks worth $4,000/$ = but because they did not have cash to pay for the drinks, they offered the deceased's phone as security for the unpaid for drinks. - Later, **PW1** took the 4,000/ $=$ to the accused with the view to retrieve the $[3]$ deceased's phone. The accused refused both the money and release of the phone claiming that the deceased owed him $5,000/$ = which arose out of the task he gave the deceased to fix his solar but the deceased had not accomplished it. - Later, the deceased himself confronted the accused for his phone that he $[4]$ had given to the accused to secure the unpaid for drinks they took. The

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accused entered his shop, came out with a "slasher" and used it to strike the deceased on the hind part of the neck which eventually led to his death.

- $[5]$ In his sworn defence statement, the accused denied striking the deceased with the slasher that caused the fatal blow on the deceased. He narrated the story as regards how his claim of $5,000/$ = from the deceased arose and concluded that the deceased's daughter reported to them that her father took poison (a pesticide/herbicide) for tomatoes. That police were alerted and the deceased was eventually taken by an ambulance to the hospital where he was later pronounced dead. - As in all criminal cases, the burden of proof is always on the prosecution $[6]$ to prove its case beyond reasonable doubt. The accused is never convicted on the weakness of the defence but on the strength of the prosecution case, See Woolmington Vs Dpp [1935] A. C 462 and Oketh Okale & Ors Vs R [1965] EA 555. - On a charge of Murder, the prosecution has to prove the following $[7]$ essential ingredients of the offence. - 1. That the death of a human being occurred. - 2. That the death was caused unlawfully. - 3. That the death was caused with malice aforethought. - 4. That the accused directly or indirectly participated in the commission of the offence. - As regards the 1^st ingredient of the offence, under S.66 TIA, the $[8]$ prosecution adduced evidence of a Post Mortem Report of the deceased Horukiri Bahati which was admitted as P. Exh.1. According to P. Exh.1, the cause of the death of the deceased was established to be "acute respiratory failure following flexion -rotation injury to cervical spine secondary to blunt trauma." Bisimwa Venna (PW1) who was an eye witness, testified that the deceased was struck with a "slasher" on the hind back of the neck. PW1 later learnt that the deceased died. His evidence corroborated that of Dr. Akite Serah who conducted the post Mortem on the body of the deceased. The deceased died as a result of the injury sustained on the back of the neck. The defence did not contest the death of the deceased and Kashindi (DW2) testified that she attended the

deceased's burial. In the premises, I find the $1^{st}$ ingredient of the offence duly proved by the prosecution to the required standard.

- $[9]$ As regards the $2^{nd}$ ingredient of the offence, all homicides are declared unlawful in Uganda unless accidental or authorized by law see Gusambizi S/o Wesonga Vs R [1948] 15 EACA 65. In the instant case, it appears apparent that what occurred was a homicide as there is no evidence that it was accidental or authorized by law. I find the $2^{nd}$ ingredient of the offence duly proved by the prosecution to the required standard. - [10] As regards the $3^{rd}$ ingredient of the offence, under S.191 PCA, "Malice aforethought shall be deemed to be stablished by evidence providing either of the following circumstances; - a) An intention to cause the death of any person... - b) Knowledge that the act or omission causing death will probably cause death of some person..." - The malice aforethought i.e intention and knowledge to cause the death $[11]$ or the act or omission causing death will probably cause death is deduced from the circumstances surrounding the killing including the mode of killing, the weapon used, and the part of the body assailed and injured; Nanyonjo Harriet & Anor Vs Uganda, SCCrim. Appeal No.24 of 2002 [2007] UGSC 10. - In the instant case, Bisimwa Venna (PW1) an eye witness testified clearly $[12]$ that the deceased was struck by a 'slasher" on the hind part of the neck and this evidence was corroborated by the Post Mortem Report admitted under S.66 TIA as P. Exh.1 where the cause of death was established to be "acute respiratory failure following flexion -rotation injury to cervical spine secondary to blunt trauma." - The neck is definitely one of the vulnerable parts of the human body $[13]$ given the fact that it holds the ligaments and bones of the neck. Once these are dislocated by a blunt blow, death is definite. This court is not convinced that the deceased died of poison. There is no evidence supporting that possibility. In the premises, I find that whoever inflicted the slasher blow on the neck of the deceased with such a force that dislocated the ligaments and bones of the neck intended the deceased to

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die or had knowledge that such a blow would lead to the death of the deceased.

- In the premises, I find the 3^rd ingredient of the offence duly proved to the $[14]$ required standard. - As regards the last and most important ingredient of the offence i.e, $[15]$ whether the accused person participated in or is responsible for the death of the deceased, prosecution relied on the evidence of 2 witnesses; Bisimwa Venna (PW1) as an eye witness and D/AIP Bamusingwire David (PW2), the Police Investigating Officer. - $[16]$ According to PW1, the accused and the deceased who were both drunkards quarreled over a phone, the deceased had pledged to the accused as security for the drinks the deceased and PW1 had taken unpaid. The deceased brought the money worth the drinks they had taken, $4,000/$ = but the accused refused to release the phone on the grounds that the deceased had failed to fix the accused's solar for which the accused had paid $5,000/$ = for the task. In the process, the accused entered his shop, picked a "slasher" struck the deceased with it on the hind part of the neck which later resulted into his death. - The accused testified that it is the deceased who brought the slasher with $[17]$ the intention of hurting the accused. That the accused however, never used it because of the intervention of Venna (PW1). I did not believe this version of the accused. Venna (PW1) clearly stated that the accused picked the slasher from his shop. His evidence is supported and corroborated by that PW2 who testified that he recovered the slasher that was used to inflict the fatal neck injury from the accused's shop/bar. - As regards the claim by the accused that the deceased took poison which $[18]$ was in form of either a herbicide or pesticide, I find no evidence to support this contention. The defence claim that the deceased's child revealed the fact that the accused took poison appear to be false or an afterthought argument. In the first instance, whereas the accused stated that it was the daughter of the deceased who revealed that while looking for palm oil revealed that the deceased took poison and that the oil was to detoxify the deceased, the neighbor, Upendo Jackline (DW3) stated

that it was the son of the deceased by the names of Paskal who came looking for the oil and revealed the same information regarding the alleged taking of poison by the deceased. DW3's husband Kashindi (DW2) testified that when this child appeared, for him he had left yet his wife (DW3) claimed that he was still around. The existence of the child, whether a daughter or son of the deceased and what this child revealed to those present, remained a mystery as reflected in the contradictions by the defence witnesses.

[19] As a result of the foregoing, I find that there is overwhelming evidence that it is the accused who killed the deceased. The honorable assessors are of the same opinion. I find him guilty of the offence of murder and convict him accordingly.

Dated at Kyangwali, Hoima this 12^th day of January 2024.

Byaruhanga Jesse Rugyema

JUDGE.

$\overline{a}$

Court as before

#### State:

No previous criminal record of the convict. The circumstances under which this offence was committed expose a premeditated action that later on led to the demise of the deceased. In the premises, I pray for a custodial sentence of 30 years imprisonment.

## Ms. Mushabe:

The accused has been on remand for 3 years, 8 months and 26 days. He is a young man aged 30 years and therefore deserve a lenient sentence as a $2^{nd}$ chance.

## SENTENCE

- The accused is a $1^{st}$ offender aged 30 years. He has however been $\cdot$ [1] convicted of a very serious offence of murder which carries a maximum sentence of death. the deceased lost his life under the hands of the accused for a mere $5,000/$ = yet on his part, the deceased wanted to recover his phone which he had pledged for alcohol by paying for the drinks he and PW1 had taken without paying. The accused refused the money and at the same time refused to release the phone. He is a bad hearted man and as a result, this led to the loss of life. The accused does not deserve to remain circulating in the community. He survived mob justice. - In view of all the above, I consider a sentence of 30 years as appropriate $[2]$ sentence. Since he has been on remand on for a period of 3 years and approximately 9 months, he shall serve a sentence of 26 years and 3 months.

Right of Appeal explained.

**Signed**

Byaruhanga Jesse Rugyema **JUDGE**