[1996] UGHC 29

The Hon my Justice Egonda-Intende

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT NEARARA CRIMINAL SESSION CASE NO.212/95 UGANDA 9900000000000000000000000000000000000 VS

?. TIRUHUM, A JOHN • • • • • • • • • • • • • • ACCUSED 2. CHAPLES MUHANGOZI) BEFORE: THE HON. MR. JUSTICE E. S. LUGAYIZI

## JUDGMENT:

TIRUGURWA JOHN and CHARLES MUHANGUZI (hereinafter to be referred to as Al and A2 respectively) were indicted for murder contrary to Sections 183 and 184 of the Penal Code Act, and aggravated robbery, contrary to Sections 272 and 273 of the Same.law.

Under Count 1 of the Indictment, it was alleged that the said accused persons had murdered one TUMUSIME BENON (hereinafter to be referred to as the deceased) on 1.2th July, 1994 at Kashongi Trading Centre.

Under Count $2_s$ it was alleged that the accused persons had robbed the deceased of various properties, and at, or immediately before or immediately after the said robbery had caused his death; and that happened at the same place and time referred to above in Count 1.

When the accused persons denied the indictment herein. the prosecution called three witnesses (namely, Rosette Busingye (PWL); Taugo Bamugoya (PW2) and Dr. Mathias Kiryowa (FMB) in a bid to prove its case against the accused mussome

The accased (i.e. Al) in his defence made an unsworn statement, and did not call any witness.

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In very brief terms, the prosecution case was as follows:

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''That or. 12th July, 1994, at Kashongi Trao in Mbr.rara district, at around 3»00 a«r.op :i'."lo (</•■\* s deceased5s widow) was asleep with her husband (the deceased) in their home/oum shop, attackers pulled the outside bolt of the door to their said residence. The force applied broke the inner bolt and one of the attackers immediately gained entrance to the said residence.

At this point, the deceased woke up and stood up in the room where he and PW1 were sleeping^o This room. which was about 5 metres by 3 metres big, directly faced the door-way ^j where the attacker was now coming from.

The deceased who had a bright torch flashed it upon the said attacker who was now approaching the occupants of the said room.

The attacker had a hoe which he was brandishing» However, when the deceased called him by name (i.e. Al) and wondered that he (Al) wanted to kill him, the said attacker withdrew from the room.

The above withdrawal took about 4 minutes; and as it continued, the deceased's torch lit the attacker's face, and that enabled PW1 to recognize him as Al.

PW1 had known Al for l-g- years; and Al lived in Kashongi Trading Centre, as well.

As soon as Al withdrew from the said room, a second attacker came in. He?too. was brandishing a hoe. Although PU1 did not recognize the second attacker, that attacker vzas dressed in a while shirt with rod stripes, a blue jacket, a black pair of trousers, and had a red hat on his head.

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The second attacker forcefully hit the deceased on the head with the back of his hbe. The deceased who was defenceless

and. ha! nr. ■: p v'p a .fight, fell down,.

Ac .this J \ - .'..■.7, he said at canker •?.-d^rec, . . ^A ^&gt; lie k.:u he. then blind-folded her and began dememcing and searching for money in the houcc^o Ha opened a xicase which contained UGs.400,000/- and took the money® At th-, same time, Pul heard some other attackers searching elsewhere in tne house/shop.

At the end of the idiole episode, ?V:1 discovered that the attackers had made off with UGs®400,000/\*- and a rllio cassette which belonged to the deceased®

PW1 then quietly went and informed PV/2 and Eriasafu Ruhangane about the said attack® She reveal;! to the;-\* that Al was involved in it.

The said group returned to PVJl's home and n ide an alarm® Many people answered the said alarm, among "hem were Al and A2, both of whom were soon after -iT; .tc h,

Al was arrested because FIJI told the crowd that slie had recognized him during the attack®

A2 *was* arrested simply on the basis of the clothes he wore at the time of answering the alarm.

Except for the fact that A2 was not dressed in a hat at the time of answering the alarm, PW1 confirmed to the crowd that the rest of A2'^s attire was similar to that of the second attacker.

Eventually, both accused persons (Al & A2) were taken to the Gomborora and later to the police.

No search was made that night or later at Al's or A2'^s home;

However, that night, the deceased who had sustained a severe injury on the'head was taken to . Mbarara hospital where he died the following morning.

Accordir^u cr VT3, a post-mortem examination which was p .. fc. : o uhu deceaa- 's body on 13th July, 199/4 ⁱ .. ...•,lec. th:. -'..o'. Ox a head injury which had caused him ' w air. c .' . ^a

The said report was received in evidence as Exh.,JPl" also showed that the injury sustained by the deceased had been inflicted upon him by someone who used a blunt instrument which had ^J ujt "head such as the back of a hoe.

According to PW1 and PW2, the deceased was •//. ly laid to rest at his father's home near Kashcngi .-.ing Centre ⁵ and the said twro witnesses attended the deceased's burial. "

At the close of the prosecution case, it was apparent that the only evidence on record against A2, wa?? that .. . the time of answering the alarm, he was dressed in clothes similar to those of the second attacker.

In view of the above, I did not hesitate to rule that A2 had no case to answer since it was obvious that the prosecution simply suspected him and had no cogent evidence to prove that A2 actually particiapted in the commission of the offences in issue.

I therefore acquitted A2.of both'offences herein and immediately released him at that point.

Al'^s defence was -alibi. He related to Court that at the material time, .he was at home sleeping. However, when the-.alarm was raised at PH'^s home, he answered it, but was surprised to be arrested soon after.

He attributed his misfortune above, to a grudge which he said existed between him on the one hand, and PW2 and the Secretary for Defence of hfs village's RC, on the other.

In summing the case to the assessors I pointed cut to their chong other things, that the burden of proof lay upon the provision and never shifted to the defence even in a cust like this one where the accused put up the defence of alibi (Se. I v Woolumington (1935) L. C.462; Oketh Okale & Ors V Uganda (1965) E.i. 555 and Sekitoleko v Uganda $(1907)$ E. A.531.)

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I also told the said assessors that the weight of evidence required in a criminal case was proof beyond reasonable doubt (See DPP v Woolmington (Supra) and Miller v Minister of Pension (1947) 2 All ER 372 at Page 373 - 374).

In order for the prosecution to succeed in a case like the one at hand, it had to prove the following ingredients in Counts 1 and 2 herein, beyond reasonable duebt: Count 1:

- (a) that the deceased is dead; - (b) that his death was unlowful; - (c) that those who caused that death were actuated by malice aforethought;

(d) that the accused was a participant in that crime.

Count 2:

- (a) that there was a theft of property on the material night; - (b) that the said theft was accompanied by the use of or threatened use of violence; - (c) that someone was killed in the course of the said crime; and

(d) that the accused was a participant therein.

I will now deal with each of the ingredients in Counts 1 and 2 in the light of the evidence adduced by the prosecution.

As far as the first ingredient in Count 1 is concerned, the prosecution led the evidence of PW1, TW2 and TMB which

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was to the effect that the decased was dead.

In fact, PWD and PW2 also confirmed that they saw his deed body and attended his burid which took place at his inther's home near Kishougi and ding Centre.

The above evidence with must chillenged or contradicted in any. way. I can therefore will is to find that the prosecution his ranved beyond annumble doubt that the deceased is dead.

As regards the second ingredient in Count 1, the position of the 1 w is that every humicide is resumed to be unlawful unless it was pecidental or excusible. (I believe, excasable in the sense that it was committed in self-defence or defence of mother or defence of property) -(See Rex v Gus vabizi Weson a (1948) 15 E. C. 65).

According to PWI's evidence, the deceased met his death at the hands of attackers who broke into her house on the day in issue. One of the said attackers hit the deceased forcefully on the hald using the back part of a hoe, thereby causing his death.

PWM. further revealed, that all through the said attack, the deceased was not amed; and he did not try to out up a fight against his attackers.

The above evidence which, in my view, suggests that the deceased's doubt was neither clused modident My nor in self-defence or in defence of mother or in defence of property, was not contradicted or shaken in cross-examination. I in therefore willing to find that the deceased's death was unlawful.

As for as the third ingredient in Court 1 as concerned, I must point out here this the resonce or beence of malice aforethought in a homoide is not always an easy

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However, according to Rea v Tubere s/o Ochen (1945) 12 ERCA 63 of Ugandav U. B. Musi & Mor. (1977) HCB at P64, t is a mechought or the lick of it, can be gathered from the wompon used, the manner in which a weapon is used, and the part of the body injured.

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Where the weapon used is a deadly weapon, or where a weapon is used savegel, or where the part of the body injured is vulnerable, malice aforethought would be much more readily inferred by Couros than otherwise.

In the instant case, tocording to PWI, the deceased was forcefully hit on the hard with the back part of a hoe by one of the attackers. He subtained an injury on the head which later killed him.

Exh. "Fl" (i.e. the post-mortem report) which was introduced in evidence by TWB also confirmed the above story when it pointed out that the cause of the deceased's death was brain damige resulting from a head injury; and that the likely weapon used to kill him was the back part of a hoe.

The above evidence was neither contradicted nor shaken in cross-extraination. I am therefore willing to find that the person who used the said we yon (i.e. a deadly wearon) to hit the dece sed forcefully (or savegely) on the head (which is a vulnerable part of the body) thereby causing his death, did so with malice aforethought.

As for as the fourth ingredient is concerned, according to TWI's evidence, after the attackers broke into the deceased's house, Al burst in, brundishing a hoe.

PWN was able to recognize Al through the bright torch light which the deceased was flashing upon him at the time.

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However, when 'ecc sc/ celled Al by nine, A. —iew; ana ids koi .tur min.¹ ' • to c- .

'.his y • ^z .1^ secund attacker car; Into the ..... ued • and forcefully hxt the dcccascc /• the head with the back ' 1 a hao^v the dece .•cd lied of that injury later on.

Although from the above, it is very clear bh.-t Al was not the attacker who dealt the deceased the fatal blow, if Court found th-.t /J. w .s correctly identified as a participant in the crime in i-mie, Al would *not* escape liability simply because he w.s not the one who struck the deceased the fatal blows

Both Al and the second attacker would be jointly and severally liuJble for the crime committed herein by virtue of Section 22 of the Penal Code net since bj all appoara: <ces they shared a common intention as they went together . ,-u. broke into the deceased's hou-je/shop and subsequently the deceased was fatally wounded.

Likewise, much as Al is said to have withdrawn while inside the deceased's house, he apparently withdrew *not* because he was disassoci.--.ting himself from wh .t had gone on already, or what was likely to go on inside that house thereafter, but simply bee •.use '.c cording to fWl the deceased had recognized him and mentioned his name\*

Be that as it may, now going back to ihl's evidence of identification of Al during the attack in iosue, that evidence being that of a single witness who identified Akl in difficult circumstances (i.e⁰ it w-. s at night, the attack was was sudden, etc.) I w.'.rned the c.\_>-jessors and I do hereby v/a/rn myself th- t it w.-.s dangei\*ous to act upon it without it being corrubor .ted. (See Ror/. v Republic

However, I ving worded the resessors and in the term above is a man a based on this took the said en much aven when correborator il, I am satisfied that TR's identification of AL could not have been madely

? made coint out, that I was not ble to find any svi ence on record to corrobor te PHI's evidence of identification of Al. As a result. therefore, I have now to consider whether the circuastances sur conding NR's identification of ... were conducive to correct identification.

In that respect, it would a peur that the fact that there was strong light which came from the deceased's torch and shone upon Al during the attack and the fact that FAL had known Al for $1\frac{1}{2}$ years before the incident in issue both tend to favour correct identification of 11 by F. M.

However, there is use, in important contr diction between the evidence of IMR on the one hand, and that of $PW2$ on the other, concerning the time when $\mathbb{P}\mathbb{W}1$ revealed the identity of the said att chers (i.e. Al and the second attacker).

While PWI told Court that she did so, at the earliest opportunity when she went to report the incident at PWZ's home, PW2 denied this and said that PV1 only revealed the identity of her attackers after AL and A2 and the rest of those who answered the alarm went to the scene of crime on the material night.

Secondly, there is also the fact that Al was one of those people who unpuered the alarm at the scene of crime soon after the crime in issue was committed. Doesn't this type of conduct point more to al's imposence than quilt?

All in All, much as there we factors herein which tend to favour correct identification of AL, one cannot keep a blind eye to the contribution above and the fact that

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All was one of the $\eta$ with additioned the all rm south $\mathbf{u} = \mathbf{v} \mathbf{u}$ $j_{\text{TF}} = 17 \pm 10^{-1}$ and $\text{N10} = 0.3$ and $\text{N10} = 10^{-1}$ and $\text{N10} = 10^{-1}$ : Itis work, tend to streak the possible on toppe the some office the element, unit to Court in PTT to idea. Conden of Al.

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With the flubt lingering in my mind, thout list identification by PMI. The volub choice, but to find that Al's participation in the cinemo in Count I has not been proved by the prosecution be and reason the darks.

As for is the first in redicat in Count 2 1. concerned, the portions of Section 245 of the Pen 1 Cole of which define the offence of their induce relevant to this case, read as follows:

"(1) A person who fraudulently and without claim of right takes in thing camble a being stolen.... is said to steal that thing.

(2) A person who takes or converts anything capable<br>of being stolen is doesn'to do so in additionally in he<br>does to with any of the hollowing intents, that is to say-

- (a) an intent permanently to deprive the gener 1 or special owner of the thing of it. - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................. - (e) in the case of money, in intent to use it at the will of the person the takes or converts it.....

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(5) Any person shall not be deemed to the thing unless he moves the thing or cludes it to move."

According to FM, on the might in issue, and the deceased were invided by Stackers who ultim well took wy from their home $UGs.400,000/=$ ind r die cosette both of which, belonged to the dece sed:

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The said property and money, were later not returned them by the attackers.

Since the above evidence which was not challenged or singles, clearly brings to mind the fact that the attackers took away the decembed's radio cassette with the intention of permanently depriving hum on at, and his money with the intertion of using it at will, and they had no claim of right in respect of the two, it is my view that the offence of their wis committed by those attackers in terms of the provisions of the law outlined above; and I so hold.

As for is the second ingredient in Count 2 is concerned, I'd related to Court that on the night in issue is spe at around 3.00 a.m., the deceased slept, attackers forcefully broke the outer bolt of the door leading to their residence. The force applied above also broke the inner bolt. The first attacker then gained entrance into the said house. He went in brundishing a hoe. This withdrew.

At this point, a second attacker came into the house. He was also brudishing a hoe which he used to strike the deceased on the head. He then ordered FWN to lie dom. He blind-folded her and proceeded to stell the money and radio caspette in issue.

The above evidence was not challenged or shaken in cross-examination. I am therefore willing to hold that it reveals that the theft herein, was accompanied by use of violence.

As for is the third ingradient in Count 2 is concerned, FW1 revealed to Court this just before this offence was committed, the second attacker struck the deceased on the head with a hoe thereby causing him death.

Exh. "Fl." (the post-mortem report in respect of the

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deceased's body) also confirms that the deceased's death are a ed by a heady injury

The said evidence was not shaken or contradicted. w therefore willing to find that the deceased was killed by his attacker in the course of committing the crime in Count 2.

is regards the fourth in redient in Count 2, since this offence was committed at the same time and in the sume transaction with the offence in Count 1: and since the evidence showing the participation of Al in the offence in Count 2 (i.e. PUL's evidence) is the same evidence which was applied above to determine al's participation in the offence in Count 1; and since the principles of law applicable to this evidence under Roria v Republic (Supra) and Section $2\lambda$ of the len 1 Code Act are also the same in both counts, without wasting more time therefore, I would at this juncture point out, that the moment it was shown that the prosecution failed to prove the participation of Al under Count 1, also his participation in the offence in this count, immediately became doubtful.

In the circumstances, Al's participation in the offence in this count has also not been proved by the prosecution boyond reasonable doubt.

All in all, I would, in agreement with both assessors, find that Al is not guilty of the offence in Counts 1 and 2 herein.

I accordingly hereby acquit him of both offences, and order his imagediate release, waless he is being held under Eldugarz some other locally charges.

A. S. Lugarizi<br>J U D G E<br>17/4/96

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