[2018] UGHCCRD 128

## **THE REPUBLIC OF UGANDA**

# IN THE HIGH COURT OF UGANDA AT ENTEBBE

## HCL-00-CK-2C-T362-2016

# **UGANDA :::::::::::::::::::::::::::::::::::**

### **NEBSUS**

#### **SECURITIES OF A PAGE SECURED WALAKIRA LAWRENCE**

# BEFORE: HON. MR. JUSTICE J. W. KWESIGA

### **JNDGMENT**

murdered Kobusingye Barbra. Kiwafu central village B, Entebbe, Wakiso District, the Accused 189 of the Penal Code Act. It is alleged that on 7^th September, 2015 at The Accused person is indicted with Murder Contrary to Section 188 and

guilty or has been proved guilty. with a criminal offence is presumed to be innocent until he/she pleads denied participation. This was plea of not guilty. Every person charged The Accused admitted that Barbra Kobusingye, his girlfriend is dead but

pleads insanity. never shifts to the Accused person except where the accused person prosecution and remains upon the prosecution throughout the trial and The duty to prove the guilt of the accused person is upon the

Article 28(3)(a) of the Constitution of Republic of Uganda). presumed to be innocent until proved guilty or has pleaded guilty. (See In Uganda, every person who is charged with a criminal offence is

of proof is upon the prosecution throughout the trial. Uganda in a Criminal Appeal No. 01 of 1997 held that the burden The Supreme Court of Uganda in **Bogere Moses & Another Versus**

committed but was committed by the Accused person. to prove beyond reasonable doubt that the offence was not only the burden of proof entirely falls on the prosecution to adduce evidence the moment at Accused person pleads not guilty to a criminal charge, In a much older decision in RVSSIMS (1946) 1KBS, it was held that

any verdict. together on each essential engredient of the offence before reaching causing the death. I will examine the prosecution and defence evidence and finally that the Accused person is responsible or participated in dead, her death was caused unlawfully and with malice aforethought In the instant case, the state must prove that Kobusingye Barbra is

strangulation of the deceased. Acm long on the face of it, a great deal of force was put in the scratch marks of the interior and lateral necksides measuring 0.5cm to He opserved haemorrhage in the posterior aspect of the tongue. He opserved The neck had extensive contrusion of muscles. P. E.9). He established that she had been manually strangled to death. $8^th$ September 2015. He made a report admitted as prosecution Exhibit examination of a body identified to him as that of Kobusingye Barbra on pW9, Dr. Moses Byaruhanga, a Pathologist carried a post mortem

## "pənləsqo səlunlui yəəu pane usils, pressure alone of the fingers would still cause the Under Cross Examination he stated "---- Even if the attacker did not

arranged, no evidence of break-in or struggle in the room. loose, consistent with strangulation effects. The sitting room was well 22). He observed multiple injuries around the neck. The neck was very on her bed. He took several photographs admitted as P. Exh. No. P8 (1- $\frac{1}{2}$ ). of crime Officer. On $\mathsf{Y}^{\text{th}}$ September 2015 he found the deceased's body DW7 – D/Cpl, Joseph Ngabirano gave impressive observation as a scene

**ST07** Kobusingye Barbra is dead. She died in her room around 7^th September $PMI - J$ . B. Kanakulya, the deceased's landlord confirmed that

in the indictment is actually dead and died around $\mathsf{Z}^\text{th}$ September 2015. pyore proved beyond reasonable doubt that the deceased named participated in the burial. Therefore, the evidence of PW9, PW7 and mortem report or oral evidence of those who saw the dead body and/or Death in homicide cases can be proved by medical evidence, i.e post

point R. Versus Busambizi S/o Wesonga (1948) 15 EACA 65. No. 071 of 2010 where both Judges of the High Court followed on this Kwesiga in Uganda Versus Bahirayo Enos – Criminal Session Case Criminal Session Case No. 034 of 2007 at Arua by Justice J. W. Justice Augustine Kania in **Uganda Versus Eguma Charles –** accidentally caused or it is for some reason justified. See decisions:- by presumption in layer si spizimod vaye that si wel ni noitqmusery Regarding the second element of the offence of murder, the

anger. There is no doubt, this death was unlawfully caused. evidence depicts the attacker as the Accused who squized her neck in admitted as P. EZ constitutes good circumstantial evidence. $S_{\text{I}}$ fight to suggest self defence. The charge and caution statement was very well arranged and therefore, this ruled out a possibility of a According to the evidence of PW7 D/Cpl Joseph Ngabirano, the house residence on her bed. There was no evidence of a struggle or a fight. evidence shows that whoever caused her death found her in her circumstances surrounding the killing of the deceased. The prosecution Strangulation of a person to death is unlawful. I have examined the $\mathcal{I}$ No person has a right to deprive another of his/her life. lite. Article 22 of the Constitution of the Republic of Uganda protects right to

aforethought, I will deal with whether the Accused person participated? Before dealing with the issue of whether or not there was malice

called no witness to support his defence. In his defence, the Accused person gave evidence not on oath and

probably after the deceased had collapsed. possession of the only keys that locked the house from outside most in the house of the deceased the day before her death. He was in for her the house in which she was found dead. He was the last person He told court that the deceased was his girl friend and that he rented

for purposes of collecting the keys she left in Barbra's house. picking her calls and when she requested him to open for her (Eleanoh) He was evasive each time that Eleanoh asked him why Barbra was not

'ling sid of evidence properly puts the accused person at the scene and points to and how the Accused strangled the deceased. I am satisfied the chain Finally, the examination of the charge and caution gives details of why

"ənış Surrounding circumstances that the confession cannot but be it is fully satisfied after considering all the material points and if sold the well in Law and the court may act on a confession alone if evidence accepted by the court. But corroboration is not corroborated in some material particular by independent cases pue sesez contr will only act on the confession if confession is true. The sames standard of proof in required in all fully satisfied in all the circumstances of the case that the petore founding a conviction on such a confession be coutession which has been retracted or repudiated with caution principle of Law in these words: "a trial court should accept any useless. The Eastern African Court of Appeal settled the applicable charge and caution statement. This does not render it's contents person commit the offence and that he has denied the confession in the $\rm I$ have considered the fact that none of the witnesses saw the accused

$\theta$ B B d | b

house showed that the accused person had something to cover up. house until Eleanoh threatened to break the padlock to access the ordinarily freely entered the house, his reluctance to go and open the The accused person's conduct of avoiding giving keys to Eleanoh who

locked the house after he had strangled the deceased. the table inside the house and the reasonable inference is that he had keys to the house. The deceased's set of keys was found lying on The accused person, a part from deceased, was the only person who

presence at the scene when she died and his presumed participation. circumstantial evidence that supports the other independent evidence of statement to be true. Even if it was to be said otherwise, it forms good it's contents could only be from the Accused person. This renders the The Accused person's charge and caution statement is so detailed that

participated in causing the unlawful death. I am satisfied beyond reasonable doubt that the Accused person

murder there must be proof of malice aforethought. Kobusingye Babra at Kiwafu, Entebbe for the death to amount to Having found that Walakira Lawrence unlawfully caused death of

unlawful act or omission commits murder". ue ha nosiet aforesthought causes the death of another persons by an Section 188 of the Penal Code Act provides:- "Any person who of

of the following circumstances. solipi pe demed to pe established by evidence providing either Section 191 of the Penal Code Act provides:- " Malice aforethought

- An intention to cause the death of any person. $(e)$ - https://www.incommons.com/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/article/art Knowledge that the act or omission causing death will $(q)$

of mind or mental desposition of the Accused person at the time he In view of the above Statutory Provisions, malice aforethought is the state

$\partial$ B e d | S

particularly the manner the offence was committed. For example,evaluation of circumstances surrounding commission of the offence and committed the offence. The statement of mind can be established through

- attempts to conceal the accused's identity. Evidence of preparation for committing the offence and $(!)$ - The nature of the injuries that were inflicted on the victim. $($ $\parallel)$ - The nature of the weapons used. $($ !!! $)$ - inference is that death was intended. most vulnerable parts of the human body are targeted, the The parts of the body that were targeted. Normally when the $(\Lambda)$ - injuries intention to cause death will be inferred. Whether a great deal of effort or force was used to inflict $(\wedge)$

derogation of evidence to say is circumstantial". proving a proposition with accuracy of mathematics. It is no circumstances which by intensified examinations is capable of Duipunos jo exidence si H often the pest evidence. Criminal Appeal R. 20 stated:- "Circumstantial evidence is very aforethought. In Rvs Taylor wear and Denovan (1928-29) 21 mentioned constitute circumstantial evidence from which to deduce malice All the above or a combination of some of the above factors or more not

have found the following co-existing circumstances:have examined the contents of the charge and caution statement and I circumstances which would weaken or destroy the inference of guilty. I from circumstantial evidence to be sure that there are no other co-existing If is necessary before drawing the inference of the accused person's guilt

- such as paying house rent and daily transport. accused person was extending considerable financial support The Accused and the deceased had a relationship and the $(!)$ - with other men. The Accused person was upset by the deceased's involvement $(ii)$

ηθοπί το της γιασίς ^γ tears ---, I left her on the bed, closed the door and συμρελία και ριεστήμε σις γραμίλ. She started sew στις γραμία John mond bash yan bash i neleased my hand from her make any movement. --- held her in the neck for yolding her by the neck to a point where she could not Hosym bnuot bne nogmest ym tel I ------" -: beiter Following a suspect telephone call from another man, he

intention to kill despite that he acted unlawfully. temper and held her neck in a heat of passion of the anger which rules out This part of the admission also depicts that he over-reacted, lost his findings. Therefore, he caused death by strangulation of his victim's neck. how Barbra met her death which was in agreement with the Pathologists' This extract from the charge and caution statement reveals the truth of

leading to commit an assault. of such a nature as likely to deprive him of the power of sect-control of the Penal Code defines provocation to include any wrongful act or insult pim, though unreasonable, amounted to provocative moment. Section 193 considering that she was so under his financial care and rudely answered with other men, calling her in the night while with him in bed and The circumstances of the Accused person's lover (deceased's) involvement

case. therefore, provocation will depend on facts and circumstances of each had been done. Provocative circumstances vary from case to case and released the neck when he recovered from the heat of passion but damage holding her neck, releasing her neck after a minute and $\mathbf I$ find that he manslaughter. I have evaluated the circumstances of how he ended up sudden provocation before there is time for his passion to cool amounts to S.192 provides that homicide committed in such heat of passion caused by

$\lambda$ | b 9 & G

$($ $\cdots$ $)$

correct. revealed in the charge and caution statements whose contents I found Murder because they omitted examining the provocative circumstances the Penal Code. I do not take the Assessor's advice to find him guilty of accused person guilty of Manslaughter Contrary to Sections 187 and 190 of and the accused person without malice aforethought and $\mathbf I$ do find the Interaction in the instant case is that death resulted from an unlawful act

Section 187 and 190 of the Penal Code Act. The Accused person is hereby convicted of Manslaughter Contrary to

Dated this 30^th day of May 2018.

1. W. Kwesiga

### **əbpnc**

8TOZ/SO/08

In the presence of:-

- ASS) suilul (ASS) for the state. Mr. Tuhairwe - > Mr. Ivan Sekyonda holding brief for Mr. Orone Solomon for - Ms. Gorret Boogere Court Clerk. Accused.

$9$ Bed 8