[1991] UGHC 27

THE MONOMABLE MR. WASLINE A. B. SCAULER

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE CRIMINAL SESSION CASE NO. 65 OF 1988 UGANDA::::::::::::::::::::::::::::::PROSECUTOR

## -VERSUS-

MUHAMADI YASINI SEKAJCLO::::::::::::::ACCUSED

BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

## $J U D G M E N T$

The accused in this case is called Mohamadi Yasin Sekajolo stand indicted of Attempted Murder contrary to section 197 (a) of the Penal Code A The allegations were that the accused person on the 28th day of March 1986 at Kihanga village, Gombolola Buhunga, Rujumbura county in Rukungiri Distric attempted unlawfully to cause death to one Jamada Kiseka. The accused denied the charge.

The prosecution in an endeavour to establish its case called in aid about six witnesses. The evidence of P. W.1 was admitted at the preliminary hearing under section 64 of the Trial on Indictment decree (Decree 26 of 197 P. W.1's evidence was to the effect that on 23rd June 1986 at Nyakibale Hospit he examined the complainant. He had a big cut wound on the left arm which necessitated amputation. He amputated it above the elbow and the Doctor classified the injury as dangerous harm.

P. W.2 was at his home on 28th March 1986 and decided to go for prayers at the Mosque. It was a Friday and it was around midday. He decided to go through his banana plantation. When he reached the banana plantation he found the accused squatting in his banana plantation. The accused was armed with an axe and a panga. He enquired from the accused what he was doing in his banana plantation. The accused replied that he wanted P. W.2.

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Immediately the accused got up and struck the complainant on the stcmac.\* with an axe. He was using the blunt side of the axe. P. W.2 was very near the accused when the accused hit him with an axe. He tried to run away but the accused followed him and cut his left arm at the elbow with a p mga. The arm was almost severed off. He raised an alarm which was answered t , by P. W. J his uncle, P. W.4 and P. W. J wife and daughter of P. W. J respectively. P. W. J arrived at the scene first. He found F. V/.2 bleeding from the cut rm profusely. He enquired from P. W.2 why he was making the alarm and P. W.2 .replied that he had been cut by the accused. P. W. J enquired from the latter whether he had the authority to kill a person and the accused person retorted that if P. W. J dared to go near him he the accused would cut hir» toe The accused was at the scene being separated by a distance of about J metres from the complainant and was armed with a panga. On hearing that he . rushed to iRukungiri Police Station and reported the incident. He P. W. J came with the police the evening and found the complainant being carried Ln a stretcher to the Hospital for treatment. Accused was also under arrest.

P. Wd4 and P. W. J as stated earlier they too followed P. W. J in answer to P. W.2's alarm. Their testimonies were substantially the same with that given by P. W. J. They talked to P. W.2 who told them had been cut by the accused. They said accused was found at the scene brandishing a panga ana according to P. W. J accused threatened to kill them. P. W.4 and P. W. J made more alarms at high pitches anc. by then P. W. J had gone away. Elders and villagemates were informed of the incident and came to the scene. Both F. and P. W. J were positive that they met both P. W.2 and the accused at the scene. P. W.2 had a cut wound on the left arm which was bleeding profusely. Whereas the accused was armed with a panga. The accused had no injuries on his body.

P. W.6 merely re-arrested the accused at Rukungiri Police Pest after .3 had made a report there. He charged the accused and alsd examined him and found th.it he had no injuries on his body. He also recorded a statement from the complainant.

In his defence the accused as DW1 testified that when the alarm was made on 28th March, 1986 at midday he was then at his home, he decided then to leave for frid.^y services. Uhen he reached in the valley he found there P. W. J. The latter asked him where he was going, 'while he was still talking to P. W. J he heard people grabbing him from the back. These who grabbed him were FA.2, Hirji Mikade, Kayole Yusufu, Kassim Haddam, Masitul; Nuruyati Namigade. He was particularly held by Jamada Kiseka r.vV.2, Miga .e and Kayole other people were standing around very close to him. I. W.2 who we armed with a knife stabbed him. F. W.2 cut him below the stomach and neck. He fell down and was assaulted by migade with a stick and his arm got disloc F. W.3 cut him on his left foot with a panga. ^here were 10 people in all. He reiterated that as P. W. J aimed to cut him for a second time the panga landed and cut F. W.2 on the left hand arm. There was some confusion as p. ,pl were trying to save his life. In that confusion he got up and ran away.

He went and reported to the RC 2

Chairman Mr. Rugerwane where he found the muluka chief Kishana. He told them what had happened. ¹'hey gave him a letter to take to the police and on the way he branched to Rwamarwa Dispensary where he got treaternent. He was thvn referred to Dr. Kaganda \* in his private clinic. Kaganda stitched his wounds. He remained there the whole day and slept there. lie was given some injections there anc reported to Rukungiri Police Post on the following morning ;nd was remanded in custody. lie had gone to report that people had cu him. ^hat he had grudges with his uncles and that was F.'w. J, The grudges were connected with a kibanja at Kihanga. That was the very land which belonged

The accused called in Lis first wife DW2 to support his version. her evidence rests solely on what her husband told her. it was a reRtition of the accused's testimony. She however highlighted the facts that their home was destroyed by P. W.3, nirji Migade and their son. She was at homg a) one when the destruction went on. The accused and her co two wives were not around. F. W. J and others were saying that the accused was not supposed to have a kibanja there.

In his submission the learned Resident State Attorney stated that tie substance of the evidence given by P. W.2 relates to the encounter how . .2 found the accused squatting and how he was taken unaware. The accv ed armed with a panga and knife assaulted the complainant on the left arm which assault later led to the arm being amputated. He submitted that thambush was pre-arranged. The accused had way laid the complainant along the path and he definately expected the complainant to use that path while going to mosque. The learned counsel then went to comment on the accused's version that he was ambushed by a party of five people along the same ro d. That they were armed. He was attached and. suffered injuries in the stomach and back and that the complainant was cut by I-. W. J as he wanted to strike the accused for the second time. He submitted that all that versions were lies. The prosecutions evidence corroborated each other as to time, location and what was found at the scene. The evidence of P.ft. J, P. V.4 & F. W.5 is consistent with that of P.k.2. They agree that the complainant was found lying down breeding critically ill and they agree that the accused was brandishing a panga and the accused threatened to attack the witnesses. ■.?.at the prosecution witnesses agree that the accused never sustained any injuries at all. About the fact that the witnesses were related the- learned counsel submitted that even if they were members of one famiI: their testimonies could be admissible. An accident occurred and they had to answer to the alarm.

.... ......../5

The alarm was answered by F. V. J, followed by P. W.4 and then F. V/.fj. o Those who came later did not witness anything because the accused had ran away. That if the accused sustained any injuries at all that could not have escaped the detection of the prosecution. They relied on the evidence of the police officer r. V;.6, who examined the accused and found no injuries on him. There was then an aspect of the case which related to land dispute. That .as intended to .establish a motive on the attack egedly by F. Vv.3 and others on accused person. The substance was that it was the defence which put the accused's character in issue. There was evidence that the accused sold part of his land and another is still available. F . . 2 did not attend the meeting•which expelled the accused from the Kibanja. This case had nothing to with the Kibanja nor did F. . ² receive a copy of the letter expelling the accused. referred to F.f/.2 and the accused as children. The attack on I. Vi.2 was therefore uncalled for.

Finally he submitted that if the present charge failed the court should consider the minor cognate offence of causing grievous harm contrary to section 212 of the Penal Code and an Act intended to cause grievous harm contrary to section 209 (a) of the Penal Code.

r-ir. Zagyenda the learned counsel representing the accused submitted that the burden of proof which rests on the prosecution to prove its case beyond reasonable doubt had not been discharged by the prosecution. ■i • submitted that it is not true that the accused person during broadday liph stabbed the complainant. Tho.se were lies. He submitted that there were grudges between Sakibu F. W. J and the accused person but F. W.2 was net involved at all. The accused was ambushed by f'. W. J as he was going to mosque. He was stabbed by Sakibu anc. others but when J.k. J aimed at him for the second time the panga landed on F. Yv.2.

...... ........... /6

-.it 5 wanted to grab the accused's bibanja and that was why he wanted to -murder him. but instead cut the complainant P. W.2 That F. V.'.o was not a doctor so he could not tell whether accused sustained injuries.

Both assessors in this case we e of the opinion that the prosecution .1 J. .dduced sufficient evidence to fine • the accused guilty as charged and have him convicted with the offence of Attempted Murder. They advised me so to find. They were of the opinion that if P. W. J, p. W.4 and P. W.5 had not answered to 2\* s alarm the accused would have continued to murder the complainant.

The offence of Attempted Murder is committed by a person who attempts unlawfully to cause the death of another See section 197 (a) of the I-enal Code. There must be a positive intention on the part of the accused to unlawfully cause the death of another.

An attempt is defined under section JoQ (a) of the Fenal Code as follow

- (l)"When a person intending to commit an offence begins to put his intention into execution by means adapted to its fulfilment and manifests his intention by his overt act but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the o ffence. - (2) (a) Being immaterial

except so far regards punishment whether the offender does all that is necessary on his part for completing the commission of the-offence . . .. tn. or whether the complete fulfilment of his intention is prevented by circumstances inde^endant cf his will or whether he desists of his own motion from further persecution of his intention

(b) Also it is immaterial that by reason of circumstances not known to th. offender it is impossible in fact to commit the o ffence."

o../7

However before I proceed to evaluate the evidence on record I direct. the gentlemen assessors that the burden of proof in criminal cases lius with the prosecution to prove the guilry of the accused persons beyond reasonable doubt. ¹ further directed them that this burden does not shift except in a few exceptions the instant case not being one-of them. •A'oolrnington v DPP 1935 AC ^62, Faulo Omale vs Uganda Or. Appeal ^T o. 6 of 1977 Reported in Vol ¹ 1978 (Judgement of the Court of Appeal for Uganda May/August 1978. See Halsbury Laws of England ^th Edition Volo 11 Fara 35^ Page 19A.

In the- present case there was evidence that F. V\*.2 was going to attend prayers in the Mosque during midday and decided to pass via banana his/' plantation where he met the accused squatting in the banana plantation armed with an axe and panga. He talked to the accused who responded by hitting him on the stomach with a blunt side of the axe and when he tried to flee the accused respondent by cutting his left arm with a panga almost severing it at the elbow. The arm was later amputated in the Hospital. He made an alarm. The accused denied having cut the complainant with a panga. He gave a different version of the incident. He conceded that was going for Juma Prayers on the same date and hour 12.00 noon. On the way he met P. W. J his uncle and a man with whom he had grudges. He met P. W. J in the valley. F. W. J talked to him and asked him -her he ■■/is going. Immediately he heard people five of them grabbing him from behind. They had ambushed him among them were IW2, PWJ, FW4 & F\$5 and other FJ/V.2 cut him with a knife at the back and stomach whereas F. W. J cut him with a panga on the foot. However when F. W. J aimed a second blow to cut the accused the panga landed on the left arm of F. W.2. Efforts were macle by those people around to save the life of the complainant F. W.2.

In that confusion he escaped and ran away. however F.b.3 ^b' ⁱ . » • ~-¹ t- ^~ • •> ?ns- ered to F.\.2'^s alarm. They found him lying on the ground bleeding very much. F.t.4 & I-.:a>5 talked to the accused person. Ke threaten-.u to kill and harm them and even chased some of them away. Ke was armed wit] pang.?.. He was 5 to metres away from P.k.2^a Also I'.'?'.3? I.k.4 & F. V.-.5 talked to P.h.2 and the latter informed them that it was the accused who lacut him with a pang.?. The accused frantically denied all.that. Ke said it was P.'.v.3 and his people who hr.d ambushed him. ^I was opportuned to see th< accused ^x.erson and the prosecution witnesses in the witness box, the latter impressed me as being truthful witnesses. I believed them. The accused on the hand gave th.-? impre. sion ci a bihant ant liar. ^I agree with the submissions of the learned state attorney that the accused way l-.id .'".2 in the banana plantation because- he know he was going to pass, there and then the accused proceeded to attack him (F. W.2). It was not true therefore thet it was Sakibu P.w.3 who way laid the accused and ambushed him with his t^am as submitted to by the learned counsel representing the accused person.

His acts were immediately and not remotely connected with the intended murder and they were acts which went for beyond mere prepar tions. They were so proximate to the commission of the offence and done with the intention to commit the offence. They were connected with the offence.

The accused began or embarked on a series of acts. He began to put hie intention into execution. He armed himself with a panga and an axe. 1 believed P. W.2 over this issue. Both p panga and an axe were all lethal weapons. He went and way laid the complainant 1. W.2 in the letters banana plantation. lie knew that the complainant was to pass that way when geing overt for Friday prayers. Ke then he- went on to fulfil his*f* act by first hiding the complainant with an axe and later cutting bin with a panga ^A'hich resulted in the complainants 6.rm being amputated-

.......... . ./9 , r..:e with the the opinion •. f the assessors ever this issue that if r. W. J, F.vv.4 & FA.⁵ had not ccrne to the rescue of the complainant •flhen they responded to his alarm the accused would have continued and finished up th, complainant. So it was immaterial that those people the •witnesses who answered the alarms stopped him from fulfilment of his ..tention by circumstances independant of his will or whether ne desisted out of his own vill from further persecution of his intention, It was also immaterial if for circumstances unknown to the accused it was impossible in fact to commit the offence. All the same he would have ccmmi' the offence under 197 (a) S. 369 (a) of the Penal Code See Abdu Kalule vs Uganda 1978 HCB P. 260.

So the accused's allegations that he was ambushed by P. V. . J, p. W.4 & FA.² and P. W.5 was not true. F. W.2 F. W. J, P. W.4 and i. W.5 were all relatives of the accused person. They were all living at Kihanga village wl the accused also lived. Those witness had known the accused before. The attack on F. W.2 was during broad day light. It was 12.00 noon. The accused was found at the scene brandishing his panga around and since it was during daytime. • FA. ^J could not have mistaken FA. ² for the accused person and cut the former with a pnnga. That never happened. It was the accused who cut F. W.2 with a p'-inga. lie was properly identified by the prosecution witnesses.

e evidence so far adchiced was be th direct and circumstantial. It v..-aS .lire ct because T. W.2 saw the accused cut him with a panga anc else tncevidence •-•as circumstantial in that when • \* ^v»\*3, and P. F-5 went to answer the alarm they found th\* accused armed with a 1-anga standing 4 t-. 5 metres from I-. W.2 who was bleeding from the cut wound. Accused threater to harm prosecution witnesses if they dared to go near him; The accused s.'.s the only person who was met at the scene together with F. W.2 when . rosecution witnesses went to answer the alarm. In essence the inculpatory facts are incompatible with the innocence of the accused person, and incapa <...f explanation upon any other reasonable hypothesis other than that of .••uilty See Simon liuscke *vs* R 1958 P. 715\*

There were seme contraditions in the prosecutions case. For instance there were contradictions in the evidence of P. W.4 and F. W.5 about who arrived first at the scene when P. W.2 made an alarm and as to whether they found F. W. J at the scene and whether P.'w'. J -saw F.?».^- ^p F. W.5\* There was also some contradictions in the evidence cf the complainant and the statement he made at the police station exhibit D1. In his statement to the police he stated that when the accused hit him on the stomach with an axe he grabbed the axe then the accused drew a knife from his trousers and stabbed him on the stomach. In his evidence in court there was no grabbing of the axe and being stabbed on the stomach with a knife.

about contradictions and inconsistences the court of Appeal for Uganda criminal APp.\_ No. ¹⁹ of 198\*\* Magidu Bona vs Uganda original Cr. 8. C. .do. ^j49/8^ and quoting; with approval the decision in Alfred Ta.jar vs Uganda BaC^a Cr. A^p. No. 167/19^9 had this to say:-

/11

In assessing the evidence of a witness his consistency or inconsistency was a very relevant consideration, grave inconsistences unless satisfactorily explained will usually but not necessarily result into the evidence of a witness being rejected, minor inconsistency will not usual have that effect unless the trial Judge thinks they point to deliberate untruthfulness (morever it is open to a trial judge to fine that a witness has been substantially truthful even though he had lied in some particular aspect).

In the instant case the inconsistences and or contradictions are not grave but they are minor and they do not point to deliberate untruthfulness Despite those contradictions I am still satisfied that the prosecution witness told this court the truth.

$\overline{1}$

In his submission to this court the learned counsel appearing for the accused submitted that it was because of the grudges that F. W.3 ambushed the accused and inflicted some of the injuries the scars of which were shown to this court.

The learned State Attorney on the other hand submitted there were no grudges between F. W.3 and the accused because part of his land was still there and the injuries inflicted on the accused the latter got them when he was arrested and remained in custody in Luzira.

Since it have already found that the prosecution witnesses were truthful I do not agree with the accused that he got the injuries in the scars he showed to court because of being ambushed by I. W.3 and his group. I agree with the prosecution witnesses that the accused was not injured on his encounter with the complainant and prosecution witnesses. In addition 0.0.6 whom I believed as having told this court the truth when he received the accused in the police cells did not detect any injuries on his body and though he was not a Medical doctor he could not have failed to observe the injuries since he examined the accused. The accused's assertion that he was injured by 1. W.3 and his group was an endeavour to $\gamma^{\text{link}}$ . W.3 with the allegat that in an attempt to cut the accused with a panga the latter landed on the complainant F. W.2.

............./12

The accused -. Iso complained bitter,y that his uncles including . were against him. There was evidence on record that his homestead produced .as destroyed by the uncles. lie / a letter in court in which the /notes were expelling him from the clan because of the treatment he gave to one -ladija Nahato whom the accused dismissed from a house belonging to P. T. J's mother. There was no doubt that there was bitterness between the accused and his clansman but that was no licence for the accused to have taken the law into his own hands. I am of the view that H. W.2 was not involved in the dispute. He did not attend the meeting which expelled the accused from the clan nor did he get a copy of that letter expelling him. The accused had no justification to have acted as he did.

The learned State Attorney had suggested that in case the court finds that the accused did not commit the offence of Attempted murder the court could convict him of a minor cognate offence of doing grievous Harm contrary '/•- section 212 of the Penal Code. Also he suggested that the accused could be convicted of Doing an Act intended to cause grievous harm contrary to section 209 (a) of the Penal Code. I have had the occassion to look that ^at both sections of the Penal Code but ^I am of the view/there was congent evidence to show that the accused committed the offence under S. 197 (a) of the lenal Code. I have not therefore been persuaded to depart from that finding.

The sum total of all that I have stated above is that I am in full agreement with the unanimous opinion of the gentlemen assessors that the accused be found guilty as charged. I found therefore that the prosecution had proved its case against the accused person beyond reasonable doubt

7 ± accused is found guilty of the offence of Attempted Murder contrary to section 197 (a) of the Penal Code and ^I convict him accordingly.

( I. MUKA. NZA J ll D G \*E 22/4/91

²2/4/91Accused before Court.

Mr. Zagyenda for the accused present.

Mr. Kabiito Resident State Attorney also present.

Assessors 1. Mr. Kagunda present.

2. Mr. Byomugendo present.

Court : Judgment is read in the open court and signed.

Mr. Kabiito

found Having/the accused guilty as charged and in considering the sentence,

<span id="page-12-0"></span>The accused has no previous conviction . He must be regarded as first offende. Secondly although the accused has been on remand for 5 years up to March 199[\\*](#page-12-0) ¹ I pray that in the interests of justice the accused deserves custodial sentence. Especially so given as this offence carries imprisonment for life. .;e live years should be sub.str.acted from the life sentence. Also consider seriously that out of his ommission on this offence, the complainant suffered amputation of his hand. This was a disability for life. And this disability was a result of the commission of this offence. The accused had no justification at all to have acted as he did. And using a lethal weapon as a panga amputation had to be made. The accused deserves no leniency in custodial term. This court may take into account the 5 years the accused has been on remand. Trc five years were inordinate delay for circumstances beyond anybody's control. He could have been tried much more ,-irlier. My lord ^I so pray. ^I live the sentence to your judicial di ⁱ ™

ar. <u>caryenda</u>:- I have about six points to submit on. first of all the accused has been on remand for five years. But this is a special case, five years ago accused could have started serving sentence but circumstances were beyond control. I pray that fact be prayed in aid in civigation of centence. Secondly, the accused is a first offender. to deserves mercy. The accused is now aged 38 years. This is the very middle of his life. He could be of use in the development of the nation and his family and himself.

The accused has a large family of three wives and seven children and an ailing mother. Two of the children were out of the wedlock belong and they stay with the $\frac{\text{accused's}}{\text{mother}}$ . The rest of 5/ $\frac{\text{1}}{\text{1}}$ to the 3 wives. Those wives ran away to their respective home with the children. There was the destruction of the home by Sakibu. The children staying with rand parents are additional burden there. The accused did not commit the offence in order to punish the family. The other consideration is that victim has healed his arm well. He is not suffering any more. t.he

Also the conduct of the accused at the time of the offence. It was only/out on the arm and not several cuttings. In my view the accused cut once this could be a mitigating factor.

The sentence of Attempted Murder is equivalent to that of Manslaughter This court has sentenced accused to sentences of $6.5 \approx 9$ years<br>in Manslaughter cases. In Manslaughter a whole life goes but in Attempted Murder the life does that net go. In the light of this I pray/the accused be given a light sentence. Mr. Kabiito:- I have remark to make about the 2 years/when the trial started. would have started The inference that the accused / serving sentence 2 years/was not. not correct. It was only inordinate delay. The accused is found guilty and $...$ . . . . . . . . . . . . / 15

$=$ $\frac{1}{24}$

{start serving sentence after conviction. The part he spent on remand should be constckred but he has not started serving sentence.

Coming to comparison with 3. 197 & 182 it is true that a term of imprisonment i.-. the sine. The legislation in its wisdom decided that the sentence be the same. Sentences is exercised with, the merits of the case end not on merit, of other cases. The- merits of this case principally cohsidth.-, period of remand and whether th-., accused deserves custodial or not\* The interest of those cases could be considered after considering 1hc merits of the c ¹ se-.

## . Reasons for Sentences

The accused is a youngman aged about 38 years. He is a first offender He h -s been on remand for a period of 5 years. He has got 3 wives to support plus a family of about 7 children and he has also an ailing mother ; care for but the maximum period for a person convicted of an offence of the nature carries • life imprisonment. I am of the view that the accused committed a very serious offence. The victim lost his left arm for ever and I am of the view that the accused had no justification to have acted as he did. The accused deserves a custodial sentence.

## Sentence

The accused is sentenced to 8 years Imprisonment.

-Explained.