[2015] UGHC 9

# TIIE R}, ]'tIBt,I(. OF UGANI).,

# IN 1 I i t{ IIIG II COURT OI, : IGANDA HOLDEn" ., t MASAKA

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UGANDi\... ....... PROS l.. CU.t. ION o

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VERSTiS

I. SSEMUI-I][I^ I,EONARD }

2. ALIDDEKI PA'I'rUCK 1................... ACCUSEn

## BEFORE: TII I,l HON. MR. JUSTIC t,l RUGADYA ATWOKT.

#### JUDGMENT

The accused persons stand charged with the offence of murder c/s 188 and 189 of the penal Code Act. It is allegetl that Sensanyi Vincent, Ssemulema Ronald, Alirl<teki patrick and others still at large on 5th Novembcr 201 I at Makoolc village in Sernbabule district murdered Komujuni Joycc.

The burden to prove a charge against an accused pcrsou lays ,rr r.he prosecution. The supreme cout hold in oicttan lgtrulius v. [Jgaula cr. App. No. 25 ol 1995 (unreported), that the onus was on the prosecution, as it is always on thc prosecution in all criminal cases except a few statutory offences, and murder is not onc of these, to prove the guilt of the accused beyond any rcasonable doubt. Sce also Abdu Neobi ^v Uzarula Cr. App. No l0 of 1991, (SC), (unreporred), and Ll/oolminslon v. DI'P [953] AC 462. The prosecution is bountl to prove to the requirerl standard each of thc ingredients of the oflence charged.

The brief facts lrom which the case atose accorcling to the prosecution arc that, the 6cceasecl Komujuni was the wife of one Matayo, a brother of the accused persons. The said Matayo was killed and his relatives suspected the deceascd herein as the culprit. She was taken to the police but later released, she stayed briefly in the home and later went to Ntungamo where she remained with her children lor four years.

On the fateful day, she decided to return to her family home rvith hcr children, but before she reached their home in Kyetume village, she was sct upon by the relatives of her late husband. They decidcd to march hcr to Mpumudde police post. But at Makoole trading centre, thcy were

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crying at the side. PW6 Nathan Kabagambe a pastor in the area came from the field and found the body of Komujuni Joyce lying in the middle of the road.

The evidence of these witnesses duly corroborated the medical evidence. The accused persons and defence witnesses save for DW4 Kabanda all saw the dead body of Komujuni Joyce. The defence did not contest this ingredient. The prosecution proved beyond reasonable doubt that Komujuni Joyce is dead.

### **UNLAWFUL DEATH**

PW3 Sabasajja Patrick the son to the deceased saw people hitting his mother on the head. There were using the hoe handle and throwing bricks at her. He witnessed the assault of his mother till she died. That was the manner in which the death occurred.

As was held in the case of R v. Gusambiza s/o Wesonga (1948) 15 EACA 65, in all cases of homicide like the instant one, unless circumstances made it excusable, the death is presumed to be unlawful. Death was from assault by bricks. Medical evidence from exhibit PEI showed that there was blood oozing from the nose and ears. There was a fracture of the base of the skull and as such the head was loosely held on to the head. The evidence was that the body was dragged and placed in the middle of the road. The above evidence does not in any way remove the presumption. The death was undoubtedly unlawful. That ingredient was proved beyond reasonable doubt.

## **MALICE AFORETHOUGHT**

The prosecution had to prove that the death was caused with malice aforethought. This is provided for in S. 191 of the Penal Code Act. It is deemed to have been established by evidence of either the intention to cause death or knowledge that the act or omission causing death will probably cause death of some person.

Malice aforethought is therefore a state of mind, which is hardly ever proved by direct evidence. The courts have set down the circumstances, which ought to be considered before making the inference whether malice aforethought was made out from the evidence. Tubere v. R. (1945) 12 EACA 63. The court must consider the type of weapon used, the nature of the injuries inflicted,

joincd by other rclatives arrtl she was assrultcd with bricks and sticks and a panga. She dieti ind her body was dragged and left in the midtlle ot thc road. Her one ycar old child was leli on thc body' Matters were reportcd to the police and thc accuscd were arrcsted and charged.

'rhc ltt accused Sensayi vincent plcatletl guilty and was convicted and sentenccd to imprisonment by Mrs. Otrmo Oguli J. This jrrdgment is therefore in respcct of A2 Ssemulcnra Lconardo and A3 Alitlcki Patrick. I will for c..sistcncy refer to the accusctl as above.

'['he two accused persons cach denied the oll'cncc. Each set up alibi as a tlcfence. 42 statud that he was in his gartlcn digging together with his wife. A3 stated rhat hc was away selling his waragi.

In a charge ofmurder the prosecution must prove the following ingredients.

- l. That there was death - 2. That the dcath was unlrrvlirl.

3. 'l'hat it was caused rvith malice aforethought.

4. Participation of thc accuscd.

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Evidence in proof of death was from PWI Muduma wilson a clinical officer. He examined the body of the deceased Komujtu:ri Joyce and found that it had muttiplc injurics on the face. There was a deep wound above the earlobe which was so deep it could accommodate the 3'd fingcr on insertion. Blood was oozing from the nose and ears. The head was loosely attached to the neck. Thc causc ofdeath was duc to the head injury leading to the fracture ofthe basc of the skull. The postmortem examination report on Police Form 48C was admitted as exhibit pEt.

Prosecution witnesses PW3 Sabasaja Patrick saw the body of his mothcr. pw5 Aida Mbabazi saw the dead body of her sister as it lay in the middle of the road with the one year old child

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thc part of the body at'tccted; rvhether vulner:rble or not, and the contluct olthe accused belbro, dur-ing, and alter thc rtirck {/ unrla v. Turtt,4i4q(IeTll) ttCB ¹⁸²

Evitlcncc in this regard was fror.tt PWI whosc report exhibit PEI shorved that the deceased rras hit in the head. Therc wcrc multiple injuries on thc head. The base of thc skull was fracturcrl. '[hcre was a deep wound ncar the ear lobe, rvhicl: ,vas so deep it could accommodate the long tingcr on a hand. The head is a vulnerable part of the lndy.

'fhe cxamining Physician stitted in the post morterll report that sharp objects were used to inflict the dccp cut wound. Blunt objects were also uscd, leading to the fracture of thc base of the skull. 'Ihese were the kind of weapons used. The typc of injuries werc described. They included. fracturc of thc basc olthc skull, <[eep wound ncrr rhc riglrt uyc,just above the earlobe, multiplc bruises in the face and body. With respect to the conduct of the assailants, the evicence of Aidas Mbabazi was that they cven left a one year old child on the dead body of its mother. Evidence from Sabasaja was that thc body was dragged from the side ofthe road up to and into the uridtlle of thc road. From the evidence on record the only inlerence to be deduced there from was the intention to cause death.

The evidence from the Dw] was that the family of late Matoyo to which thc accused belonged as relatives were unhappy to see the deceased walking back. They sought to avenge the death of their brother and hence the stoning and beating with and cutting with pangas. That was further evidence of the intention to cause death. The ingredient of malice alorethought was not contested. It was proved beyond reasonable doubt.

### P,,\R'tICI PA'TION OF'I'I It) T\C(]USE D PERSONS

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The evidence in proof of this ingredient was from sabasaja Patrick PW3. Hc was the son of thc deceased. Ile told court that on 5'h November 201I hc was with his mothcr, now the deceased. They moved from Ntungano on their way back horne to Kyetume with his mother. when they got near the gate of their house, and this was about 3.00 pm, his Uncle Vincent came with ^a panga and started slapping his mother with it on hcr checks. He was joined by his aunt Betty and


another uncle called Sekago. He told them not to kill his mother. They decided to take the deceased to Mpumudde police but before they reached they started assaulting her and other people joined who included the accused persons. They were hitting her on the head using the hoe handle and throwing bricks at her till she died. They lifted the body and put it in the middle of the road.

All this happened when he was standing not more than 4 metres away from his mother. These were his relatives. The time was about 3.00 pm, during broad daylight. He moved from Kyetume up to Makoole, and so he had all the time to observe who exactly did what, after all this was his mother being assaulted. He even attempted to tell them not to kill his mother in vain. The conditions were certainly favourable for a correct identification, notwithstanding that this was a near mob situation.

This was identification by a single witness. Sabasaja testified on oath, and so in that respect, his evidence does not require corroboration. But being a single witness the prudent thing is to look for corroboration.

The law is that although identification of an accused person can be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of such a witness regarding identification, especially when conditions favouring correct identification are difficult. Circumstances to be taken into account include the presence and nature of light; whether the accused person is known to the witness before the incident or not; the length of time and opportunity the witness had to see the accused and the distance between them.

Where conditions are unfavourable for correct identification, what is needed is other evidence pointing to guilt from which it can be reasonably concluded that the evidence of identification can safely be accepted as free from possibility of error.

The true test is not whether the evidence of such a witness is reliable. A witness may be truthful and his evidence apparently reliable and yet there is still the risk of an honest mistake particularly in identification. The true test is whether the evidence can be accepted as free from the possibility of error. See *Uganda v. George Wilson Simbwa* (SC) Cr. App. No. 37 of 1995.

pW6 Nlthan Kabagambe told court that he knerv thc tleccasctl and thc accrtsed pcrsons as they rverc rcsi<Ients of the samc urea. On the said day he clnre tiom the field anr1 tirund chaos in the trading centre and a person had been killed. He saw Vincent DW3, and thc t\*'o accused persons. They litiett the body of the deccirsed from the corridor and dragged it to thc middlo of the road. Hc sarv the accused persons at thc scene of crimc. This was evidence tiom a non relative to eithcr tle accused persons or thc dcceased lady. He rvrs a religious person, piisLor in the area, as DW5 lrtrnitted. This evidencc coroborated that of Sat,i,s.rja that it was his rek,tivcs including A2 andA3 rvho assaulted his mother till she died.

### DEIIENCF],

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Both the accused persons gave un swom testimony. Each put up a defence of alibi. A2 said that he was at his home with the wife in the garden digging. PW3 came and told then of the death of ^a person in the centre. He went to the trading center whcn the deceased was alrcady dead.

DW5 Naiga Justine was the rvife of A2 Ssemulema. Shc told court that her husband was with him ln the garden as they ptanted beans. They starled at 8 am, and competed at 6.0@m.her cvidence was that Sabasaja passcd by their home panicking and only mentioned that someone had been killed at the trading centre. He did not mention the name of the deceased or the killers. Hers was the evidence to corroborate the defence of alibi set up by her husband A2.

A3 tcstified that on the said day he did not sleep at his home. [Ie left his home at about l.0opm, and went to sell waragi to his customer, Kabanda Vincent DW4. He left that place at about 6.00 pm. [t was tfueatening to rain, and his business associate advised him to spcnd the night on that account, but hc declined and rodc his motorcycle away. Whcn he got home, the area Chairperson rang and told him that a person was killed near his home. He rang his associate Kabanda Vincent DW4 and told him the bad news. Kabanda reiterated the ofler to house his friend but again this was denied. It rained heavily and Alideki dccided to aftcr all spend the night someplace as the roads might be impossible.

The witness in support of A3 was Kabanda Vincent DW4. He told court that trully Alideki brought him waragi that afternoon. He arrived at midday and stayed around waiting for his

6 51, money till about 6.00pm, when he left. It was threatening to rain and he advised Kabanda to remain but Kabanda refused and rode away. He did not hear from Alideki till two days later, when he heard of the death of a person near his house. He switched off his phone thereafter in fear and ceased all contact with him. This was clearly a frightened witness, whatever the reasons for the obvious fear.

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Their co accused: DW3 Vincent Sensayi a convict upon admitting the crime said that he committed the crime without the accused persons. He said that he attacked the deceased because he was annoyed for she killed his brother Matayo. He told court that together with his sister Betty who has never been apprehended, and they were marching the deceased to Mpumude police station but when they got to Makoole they found the area Chairman seated at the home of Aliddeki A3. But Alideki was not present.

When the deceased picked a hoe and sought to hit his sister Betty, he got annoyed and picked a brick, threw it at Komujuni and it hit her at the back of the head and she fell down. She started bleeding from the nose and ears and died. He was solely responsible for her death.

The accused each set up alibi as a defence. The law relating to alibi as a defence is well settled by the cases. In the case of *Uganda v. George Wilson Simhwa*, (SC) Cr. App. No. 37 of 1995, and it was held that the court must examine both the prosecution evidence and the defence evidence before coming to a decision. Prosecution evidence ought not to be examined in isolation of the defence evidence. The accused, when he sets up an alibi as a defence, he or she does not thereby assume any responsibility of proving the alibi. The prosecution is under a duty to negative the alibi by evidence. The prosecution must produce evidence, which places the accused squarely at the scene of crime.

In Bogere Moses: & another v. Uganda Cr. App. No. 1 of 1997, (SC) (unreported), the court gave what amounts to putting the accused at the scene of crime. It held that this,

" must mean proof to the required standard that the accused was at the scene of crime at the material time. To hold that such proof has been achieved, the court must not base itself on the isolated evaluation of the prosecution evidence alone, but must base itself upon the evaluation of the evidence as a whole. Where the prosecution adduces evidence

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sii.rving that the accuscil persorr rvas at the scene ol crirne, ancl thc defencc not only tlcnies it, but also adduccs :vidence showing thri thc occ,scd person rvas elsewhere at the nratcrial time, it is incurr:bent on the court to cvaluatc both versions judicially and give rcasons why one and .or the other version is acceptcd. It is a misdircctiorr to accept the .\*e vcrsion and then lrrid that because of th:rt ucceptance pcr se tho other version is unsustainable."

The evirlencc ol Sabasaja PW3 r.v:rs clear on identification accusetl pcrsons at the scene of cr.irne. lt rvas the evidencc u.lrich placed the

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A2 Ssetrttrlettta Leotrartlo brought his wife Naiga Justine to testify in support olis alibi. Her evidcncc rvas that they were planting beansfromg. OOam, till 6.00 pm. That is not believable considcring that thcy were infonrcd at 3.00 prn of lhe <learh ola pcrson in the vicility. What was more, this lvas the wife of a deccascd brother in law. Naiga also told court that Sabasaja came or rather passed by and told them of the death ofa person in the trading centre, without mentioning the name of the dead person or thc killers. Her husband stated so in his evidence. That was another lic. For starters, it would be most unrealistic to imaginc that a young man who has just witnessed thc killing of his mother woukl not mention that mummy has been killed, but simply say , 'a purson' has been killed. In any event, why should Sabasaja pass by his Uncle,s home when thosc were thc killers of his mother. He would instead be running away fronr them.

The evidence Naiga was nothing but a pack of lies. She tried to shield her husband but her lies and those of her husband came through.

Alideki sought to rely on the cvidence of Kabanda vincent DW4 in support of his alibi. Kabanda told court that Alideki anived at his placc at midday. Alidcki told court that he left his home to go to sell waragi to Kabanda at 1.00 pm. AIi<Ieki could not have arrivecl at Kabanda,s place even before he set off. one of these h.vo or both of them were lfing. Alidrlti toldcourt thathe called Kabanda tv/ice that evening on his way home, but Kabanda told court that he nevcr hcard from Alideki till two days latd^and ho irnnrediately switchcd hinr off from that poinr on switching off all lincs of communication with Aliclcki. The reason was because of fear and that was quite telling. But nonetheless, Alideki told lics about communicating with Kabanda, which Kabanda dcnied in court under oath. That was another lie in Alideki's defence, Alideki told

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cou!i of lots oI rain as he lr rvellcd liom the home .rf Kabantla, but Kabanrla sarv no rain that evenirrg. Ol'course it is possii,lc it ntay not have rainc,; rvherc Kabanda was.

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Thc lr, s ol'Alideki were equ:Liry clclr in his dcfcnce

Thc l\\o accuscd persons sor!;lrt to rely on the testir|t,ny of thcir co accusetl. 'fo thc extent that hc rvas r;harged along with thcnl in the same inrlictnlcnt lor the samc ott,:nce, he was an accorirpr iuc.

ln 'l ltt Kirw v. Baslcen'illt ⁱI 9 t 61 2 K. B. 658, it 'r,l:; hcltl thot 'thcrc is no doubt that the uncon'oborated evidence ol air accomplice is admissible in taw'. This is thc hw in Uganda. O Sectiorr 132 ofthe Evidence Act provides that an accornplice is a competent witness against an accused person and a conviction will not be illegal merely because it ltroceeds on the uncorroborated testimony of an accomplice.

Vincent Sensayi was a convict lor the same offence and was already serving sentence when he testitied. His evidence therefore hod to be takcn with cvcn morc caution than an acconrplice who is still on trial. Such a person has nothing to loose. If he could tell a stor;ty whereby his relatives are saved, whether lies or not, he would no doubt do so, hence the need for cxtra caution. I wamed the assessors accordingly drrring the srrnrlrring upr. His ve.rsiun ol cyents did not tally when it came to his assertion that he thrcw a brick, which hit Komujuni and she fell down and died. That nobody else did anything to Komujuni apart from himself, in effect saying, he was solcly rcsponsible for her death. Medical evidence was admitted under S. 66 of the Trial on Indictments Act. lt provides in subsection (3) in part that, 'Any fact or docunrcnt admitted or agreed .. .in a memorandum shall be decmed to have been dully proved ..'.

The metlical report exhibit PEI was to thc effect that Komujuni halmultiple bnrises in hcr face. She had a deep cut wound abovc the ear lobe. These could not have been inflicted by the single brick. She had a fractured base of the skull and her head was hanging loosely on the neck. A brick th,rown from the back would not havc caused all these injuries. The evidcnce of Scnsayi was a pack oflies. In any event, Sabasaja gavc details ofwhat each ofthese accused did. Sensayi was onc of those who lifted the body into thc middle o[the road, a lact which he denied, yet the Investigating Othcer PW4 fbund the body in the middlc of the road.

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That evidence was next to useless. It was to be rejected.

From the evidence on record, I found that each of the accused persons participated in the death of Komujuni Joyce.

There were some inconsistencies in prosecution evidence. But I considered these to be minor and not going to the root of the case. They were not meant to deceive court. I accordingly ignored them.

The gentlemen assessors each advised court to find each of the accused persons guilty as charged. I had no reasons to differ from that opinion. I find the two accused persons Ssemulema Leonardo A2, and Alideki Patrick A3 guilty of murder c/s 188 and 189 of the Penal Code Act, and I accordingly so convict them.

**RUGADYA AT**

**JUDGE**

6/02/2015.