[2023] UGHCCRD 169

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA HCT-00-CR-SC-0852-2020**

**UGANDA ……………… PROSECUTOR**

#### **VERSUS**

**SEMAKULA PETER ........…..…… ACCUSED**

#### **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

#### **JUDGEMENT**

The accused, **SEMAKULA PETER,** is indicted with the offence of Murder contrary to sections 188 and 189 of **the Penal Code Act**. It is alleged that on the 30th of January 2019 at Mutundwe in Rubaga Division, the accused and others at large, with malice aforethought killed one **Kasendwa Ronald.**

At his arraignment, Semakula Peter denied the charges thus bringing all the elements of this offence into issue. The prosecution called 4 witnesses to prove its case while the accused was the sole defence witness.

The brief facts for the prosecution are that at about 8.00 pm on the 30th of January 2019 the deceased **Kasendwa Ronald** in company of his housemate and friend Hamza Kyeyune PW 2 went to play pool a near Kabojja Town in Mutundwe Rubaga Division Kampala Capital City. They found the accused, Semakula Peter, also playing. At that point, Hamza went to see a friend who lived at the back of where the pool table was located. Later at about 9.00 pm a commotion was heard and Hamza went to investigate. He found the accused and the deceased fighting.

He separated them and together with the deceased left the place. They flagged down a boda boda and both sat on it. They drove towards their home, and got off at a Shell petrol station not far from where they lived. There was a boda boda stage opposite the station. It was then they realised that the accused had been following them on another boda boda. As soon as he stopped the accused started making an alarm shouting that the Kasendwa and Hamza were boda boda thieves. The boda drivers at the stage reacted immediately and chased the two who hid behind a clinic near the road. After a short while when all was quiet they emerged only to find the boda waiting for them near the road. Led by the accused person they chased down the deceased and Hamza. They coaught up with the deceased. Immediately, they started beating the deceased. PW 2 saw the accused pick a block and hit the deceased on the head. It was at that point that Hamza ran off towards Mutundwe where the elder brother of Kasendwa lived. He told the brother that he left Kasendwa being beaten by a mob. At about 11.00 pm they came towards the scene. They were told by the people who had gathered that Kasendwa had been beaten to death and his body driven away by a Police Patrol vehicle. The body was taken to the City Mortuary.

A post mortem examination showed head injury leading to death. The report was exhibited as PE 2.

The next day the accused went to the LC I to report that he had been attacked by the deceased. As he did so Hamza also came to report the murder of the deceased by the accused. Because they met at the chairman's home and were giving divergent versions of the event he had them both arrested and taken to the Police station. Hamza was eventually released while the accused was arrested and charged with this offence.

Semakula Peter denied committing this offence. He stated that on the 30th of January 2019 he left the bakery where he worked at about 7.20 pm. He walked towards Kabojja trading centre. That he met a group of boys who included the PW 2 Hamza and the deceased. They attacked him and tried to take away his bag but he resisted. In the scuffle they took his wallet and one cut him with a knife on the palm of his hand. That he went to report at the home of the chairman but did not find him at home. The chairman was not at home, the accused left and returned the next morning. That as he was narrating the story to the chairman PW 2 also arrived with a group of boys who claimed that the accused had killed Kasendwa. The chairman sent for the police when the group turned rowdy and wanted to lynch the accused. When they arrived, the police shot in the air and carried both the accused and PW 2 to the Police station in Natete. That he was eventually charged with murder.

As this is a criminal case it is trite law that the burden of proof rests with the prosecution and never shifts (**Okethi Okale vs R 1965 E. A 555**). The standard of proof is beyond reasonable doubt (see **Kamesere Moses vs Uganda S. C. C. A 8/1997** (unreported).

With regard to charges of Murder contrary to sections 188 and 189 of **the Penal Code Act** the essential elements are:

- i. There was a death - ii. The death was caused unlawfully - iii. With Malice aforethought - iv. The accused participated.

#### **i. There was a death**

PW 1 Nampera Juliet is a sister of Kasendwa Ronald. She stated that she learnt of her brother's death on the night of the 30th of January 2019. Together with another brother, she went to the Mulago hospital mortuary where she found the body of the deceased. She identified the body which was released to them for burial.

PW 2 Hamza also went along to the Mortuary where he confirmed that Kasendwa was dead.

The court has been furnished with PE 2, the Post Mortem report.

From the above, there is overwhelming evidence that Kasendwa Ronald is dead and was buried and the 1st element of the offence is proved.

## **ii. The death was caused unlawfully**

### **iii. Whether the death was cause with Malice Aforethought.**

In this case the circumstances leading to death can be seen from the testimony of the eyewitness. The body of deceased was medically examined and the report shows that his skull was fractured and had suffered extensive damage. The brain and parts of the head were swollen and bled. The conclusion was his death was caused by blunt force trauma.

PW 1 who saw the body described her brothers head as crushed. It was the evidence of PW 2 that the deceased was hit with a block on the head and assaulted by a group of persons.

The position of the law is that all homicides are presumed to be unlawful unless authorized by law or proved to have been accidental or excusable (see **Gusambizi s/o Wesonga [1948] 15 EACA 63)**. This finding is an inference to be drawn from the facts of a particular case.

A homicide is the killing of one human being by another. In this case the deceased was beaten by several people and it was the beating that led to his injury and death.

On the other hand, malice aforethought is provided for in S. 191 of **the Penal Code Act** and is deemed to be proved by evidence showing a positive intention, by the accused, to cause death although such knowledge is accompanied by an indifference whether death is caused or not.

Malice aforethought is not easily proved by direct evidence, as intention resides in the mind. For that reason, the High Court and superior courts have held in a long line of decisions, that malice aforethought can be inferred from: the type of weapon used; the nature of the injuries inflicted; the part of the body affected; and the conduct of the perpetrator before and after the attack. (See **Amis Katalikawe & 2 Ors V Ug SCCA 17/94** Unreported).

The circumstances in this case show the death to have been a homicide. The beating was neither justified nor lawful. There is no evidence that it was excusable.

Secondly, the manner in which the assault was done and the part of the body targeted show an intention to cause death. There can be no plausible explanation for targeting and crushing the head of a human being with weapons such as a block other than an intention to extinguish life.

It is also said that an accusation and alarm that the deceased was a boda boda thief was made right next to boda boda stage. In my view, that that was conduct aimed at provoking the riders into acting as they did. The deceased tried to plead for his life saying he was not a boda thief but all in vain.

In the circumstances also find that the death in this case was caused with malice aforethought.

In the result

# **iv) Whether the accused person participated in the commission of the offence**

The accused in this matter denied committing the offence. He stated that it was he who was attacked by the deceased and his friend, PW 2. It should be remembered that the accused does not bear any duty to prove his innocence. The burden rests squarely with the prosecution which must prove to a level beyond reasonable doubt that it was the accused who was at the scene and committed this offence.

The prosecution is relying solely on the evidence of Hamza Kyeyune PW 2 as the identifying witness. He stated that the matter had started earlier when the accused and the deceased had fought as they played pool. He added that after the fight they left they left the place on a boda. That when he and the deceased got off a boda at the petrol station he clearly saw the accused making an alarm and telling the bodas that the deceased and himself boda boda thieves. At that point they ran and hid behind the what they called a clinic. From the sketch plan of the scene these building are just next to the road. Even the spot marked as Hamza's hiding place is only 5 meters from the road - close enough to clearly follow proceedings. The PW 3 the police officer noted that all the building had security lights and the area was well lit. It was on the road that the deceased was stoned to death. There are two points marked on the sketch as the scenes of the assault.

PW 2 stated that he saw the accused pick a block and hit the deceased on the head. He noted that it was the accused who was leading the gang. That he had known the accused for about three months up to that point. They had also spent a considerable amount to time together at the pool table and were indeed familiar to each other. The incident appears to have started at between 9.00 to 10.00 pm up to about 11.00 pm.

It is the law that an identification, just like any other fact, may be proved by the testimony of a single witness. This rule however, does not lessen the need for testing, with the greatest care, the evidence of a single witness respecting identification. It is also the law that where identification is made in difficult conditions, such as at night, caution must be exercised and court should warn itself to examine such evidence closely to avoid a case of mistaken identity (see **Roria V R 1967 E. A. 583**). Indeed, such a mistaken witness may be very persuasive and sincerely believe the mistaken identification they have made to be correct. I therefore warn myself as I warned the assessors of this danger.

The court should therefore examine such evidence scrupulously. It is for this reason that courts have developed guidelines to test the quality of identification evidence by scrutinising the light conditions; the familiarity of the witness with the accused; the length of time observing the incident; and the distance from which such observation is made (see **Abdalla Nabulere and Ors V Ug Cr App 1/1978**).

It was argued that the witness was too frightened to make a proper identification. And that his view of events was obstructed by a wall. I have keenly considered this submission but find in the circumstances that the argument cannot stand. The identification was not one event. It was a continuous ongoing series of episodes involving several scenes.

The conditions when considered in their totality favoured a correct identification and diminished any possibility of mistake. For that reason, the accused was clearly identified as participating in this offence. That places him at the scene of crime and rebuts his denial.

Additionally, the description of the weapon as a block matches the medical evidence which explained the injury found as a crushed skull. It is plausible that a block would cause that level of damage. The description of the weapon by PW 2 and the manner in which it matches the injury would tend to corroborate his entire evidence including the identification made.

I therefore find that the accused participated in the commission of this offence and the 4th element is therefore proved beyond all reasonable doubt.

In the result, and in agreement with the gentleman assessor, I find **Semakula Peter** *guilty* of the offence of Murder Contrary to Sections 188 and 189 of the PCA and are hereby *convict* him.

Dated at Kampala this .......... Day of February 2023

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**Michael Elubu**

$\quad \textbf{Judge}$