Court name
HC: Criminal Division (Uganda)
Case number
Criminal Session 7 of 2018
Judgment date
23 November 2018
Title

Uganda v Sinamenya and 6 Others (Criminal Session 7 of 2018) [2018] UGHCCRD 419 (23 November 2018);

Cite this case
[2018] UGHCCRD 419
Coram
Murangira, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MUBENDE

HIGH COURT CRIMINAL SESSION CASE NO. 0007 OF 2018

(Arising From Criminal Case No. AA-71-2017, which is also Arising from Police Case No. CRB- 961 OF 2017)

 

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTION

 

V E R S U S

 

  1. SINAMENYA PAUL
  2. SSEMOMBWE RICHARD
  3. KABERUKA FENEHANSI
  4. HATEGEKA ESAU                       :::::::::::::::::::::::::::::::::ACCUSED
  5. BUKENYA GODFREY                                              
  6. SSEBANENYA YONNAH
  7. SSERUGO SAM SSEMIGO

 

JUDGMENT BY HON. JUSTICE DR. JOSEPH MURANGIRA

1. Introduction

1.1 Representation.

1.1.1    The prosecution, Uganda, is represented by Mr. Richard Birivumbuka, Resident State Attorney working with the office of the Director of Public Prosecutions, at Mubende.

1.1.2    The accused, Sinamenya Paul, Ssemambwe Richard, Kaberuka Fenehansi, Hategeka Esau, Bukenya Godfrey, SSebanenya Yonnah and Sserugo Sam Ssemigo, are represented by Mr. Chris John Bakiza from Bakiza & Co. Advocates, Kampala on State brief, Sserunkuma from Semwanga, Muwazi & Co. Advocates, Kampala, on private brief.

 

1.1.3.  Mr. Kamugisha Vicent from M/S Kamugisha & Co. Advocates, Kampala, on watching brief for the complainant, the company where  the deceased worked.

1.2.      The assessors in this case are:-

            (1) Mrs. Nsamba Cissy, and.

            (2) Ms. Mbabazi Lydia.

2.         Facts of the case

2.1.      The abovenamed accused persons are indicted on two counts:-

Count 2, with Murder contrary to sections 188 and 189 of the Penal Code Act, Cap. 120.

Count 1, with Aggravated Robbery contrary to sections 285 and 286 (2) of the Penal Code Act, Cap 120.

 

2.2.      Particulars of the charged offences.

            On count 2, Murder:

It is the prosecution case that on 17th day of July, 2017 at Butolo village, Madudu Sub County in Mubende District all the abovenamed accused persons with malice aforethought unlawfully caused the death of Tumwiine Stephen.

On count 1, Aggravated Robbery:

It is the prosecution case that on 17th day of July, 2017, at Butolo village, Madudu Sub County, in Mubende District all the abovenamed accused persons robbed Tumwine Stephen of cash Shs. 7,000,000/= (seven million shillings) and at or immediately before or after the said robbery used deadly weapons to wit pangas and sticks against the said Tumwine Stephen.

 

2.3.      The charges on the two counts were read and explained to each accused person. Each accused person denied the charges. They pleaded not guilty on each count. Hence this trial against each accused person.

3.         Ingredients of the charged offences.

            The prosecution must prove the ingredients of the charged offence.

3.1.      On count 2, Murder:

(1)       That the person named in the indictment, Tumwine Stephen is dead.

(2)        The death was unlawfully caused.

(3)        The death was caused with malice aforethought.

(4)        Participation of each accused person in the Murder of the deceased, Tumwine Stephen.

See the case of Uganda – Vrs – Mbiride Abdul & 4 others –HCCS case No. 134 of 2006, sets out the ingredients of murder.

 3.2.     On count 1, Aggravated Robbery:-

            (1)       That theft of property worth stealing occurred.

            (2)        Violence was used during the robbery.

(3)        A deadly weapon was used during at or/ and immediately after          robbery.

(4)       Participation of each accused person in the robbery of Shs. 7,000,000= against the deceased, Tumwine Stephen. See the case of Uganda –Vs- Waiswa Henry & 2 others HCCS  Case no. 420 of 2010 which sets out the ingredients of Aggravated Robbery.

 

4.         Burden of Proof and Standard of Proof

4.1.      Burden of proof.

It is settled law that in all Criminal cases, except a few statutory offences, the prosecution bears the burden to prove all the ingredients of the offence charged. The burden of proof refers to a party’s duty to prove a disputed assertion or charge. See Bryan A. Earner, Black’s Law Dictionary, 9th Edition ed (west 2010) 223.

 

This burden of proof does not shift to the accused person, the burden of proof always rests on the prosecution. The prosecution has to prove each every ingredient of the charged offence. See the case of Ojapan Ignesius-Vs- Uganda Supreme Court Criminal appeal no. 25 of 2005.

 

4.2.      Standard of Proof.

The standard of proof required to prove the case against the accused person is that the proof must be beyond reasonable doubt. This does not necessarily mean proof with utmost certainty or 100% proof. Nevertheless, the standard is met only when, upon considering the evidence adduced, there is a high degree of probability that the accused in fact committed the offence.

Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. See the cases of:

  1.  Woolmington –Vs- DPP (1935) HC 462;           
  2.  Okethi Okale & Others –Vs- Republic (1965) EA 555, and.
  3.  Miller -Vs- Minister of Pensions (1947) 2 ALLER 372; on the prosecution of the burden of proof the standard of proof in Criminal Cases.

5.         The Prosecution Case.

To prove its case the prosecution called five (5) witnesses to prove its case. The prosecution also relied on a number of prosecution exhibits.

 

6.         The defence case.

Each accused person gave evidence on oath. The defence in addition to the evidence of the accused persons called eight (8) more witnesses who gave evidence in support of the defence case. The defence witnesses were seriously cross examined by the prosecutor, as I will show hereinafter in this judgment. The defence relied on a few exhibits.

7.         Resolution of the Case

 

    1. Counsel for the defence, Mr. Bruno Serunkuma and Counsel for the prosecution, Mr. Richard Birivumbuka made lengthy and detailed Submissions for their respective parties. Counsel for the accused persons, in brief, submitted that the prosecution failed to prove the two charged offences against each accused person. He prayed that each accused person be acquitted of the charged offences. On the other hand, Counsel for the prosecution appraised the prosecution witnesses’ evidence and discredited the defence evidence. He submitted that the prosecution proved its case against each accused person beyond reasonable doubt. He prayed to this court that, each accused person be found guilty of the two charged offences of murder and aggravated robbery, and be convicted as charged.
    2. The Assessors in their joint opinion, on count 2, Murder, found the accused guilty of murder and advised me to convict each accused person.

On count 1, aggravated robbery, in their joint opinion, the assessors found that each accused person never committed the offence of aggravated robbery. They advised me to acquit each accused of the charged offence of aggravated robbery.

It is settled law that the assessors’ opinion (s) are not binding on the Judge but where the Judge does not conform to the opinions of the majority of assessors, he or she must record his or her reasons for departing from their opinions in his or her judgment. See section 82 (3) of Trial on Indictments Act, Cap 23, Laws of Uganda; and the Case of Byaruhanga Fodori –VS- Uganda Court of Appeal Criminal Appeal No. 24 of 1999 (unreported).

    1. Resolution of the Case by Court.

In their respective Submissions, Counsel for Prosecution and the defence evaluated the evidence as a whole on court record the way they perceived. The same the assessors, too, evaluated the entire evidence on the court record and made conclusions and after that they gave me advice. I must state here that the aforestated Submissions guided my understanding of the whole case before me.

 

The law imposes a legal requirement upon a trial Judge to evaluate evidence of both the Prosecution and the defence before he or she makes a final decision. In the case of BOGERE MOSES –VS- UGANDA SC CA No. 01 of 1997, it was held that:-

 

“Where the prosecution adduces evidence showing that the accused was at the scene of crime and defence not only denies it but also adduces evidence showing that the accused was elsewhere at the material time, it is incumbent on the Court to evaluate both versions judiciously and give reasons why one accused not the other is accepted of the versions. It is a misdirection to accept one version and then hold that because of that acceptance parse, the other version is unsustainable”.

The evidence of prosecution must be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as is always resting upon the prosecution and decide whether the defence has raised reasonable doubt. See the case of Abdul Ngobi –VS- Uganda, Supreme Court Criminal Appeal No. 10 of 1991.  

 

On count 2 of Murder, Counsel for the defence, Mr. Bruno Sserunkuma, in his final Submissions, Submitted that he is not contesting the 1st, 2nd and 3rd ingredients of Murder, that is, the deceased, Tumwine Stephen is dead, that his death was unlawfully caused; and that the death of the deceased was caused with malice aforethought.

He only contested the 4th ingredient of Participation of the each accused in the commission of the charged offence. In reply, counsel for the prosecution, Mr. Richard Birivumbuka, the Resident Senior State Attorney, submitted that the prosecution proved the 1st, 2nd and 3rd ingredients of Murder beyond reasonable doubt. He made serious submissions on the 4th ingredient of Murder.

I have perused the submissions by Counsel for accused persons and noted that he never tackled directly the four (4) ingredients of aggravated robbery as set out hereinabove in this judgment.      

 

As for the offence of Murder, since its 1st, 2nd and 3rd ingredients are not contested by the parties, I shall not waste time on them. In the result and in agreement with the assessors, I hold that the 1st, 2nd and 3rd ingredients of Murder have been proved by the prosecution beyond reasonable doubt.

 

Further, I shall now put all my energies on the 4th ingredient of murder and the 1st, 2nd, 3rd and 4th ingredients of aggravated robbery. It is in agreement by both Counsel for the parties that the prosecution bears the burden to prove each and every ingredient of the charged offence against each accused person beyond reasonable doubt. It is also in agreement by counsel for the parties that it is not the duty of the accused persons to prove themselves innocent, but that it is the duty of the prosecution to prove that each accused is guilty of the charged offences beyond reasonable doubt, but not beyond the shadow of a doubt.

 

In his submissions on the 1st, 2nd, 3rd and 4th ingredients of aggravated robbery, Counsel for the accused persons submitted generally that the accused persons are not responsible for any of the above ingredients of aggravated robbery.

 

On his submissions on the 4th ingredient of murder, counsel for the accused persons submitted that the prosecution failed to prove that the accused persons caused the death of late Tumwine Stephen. He criticized the evidence of each prosecution witness. He submitted that despite the allegations, PW1 and PW2 the prosecution witnesses, that none of the accused persons was properly identified by them. He referred to the case of Kazarwa Henry –Vs- Uganda SC CA No. 17 of 2015 which case discusses the principles of proper identification

That the state failed to prove the existence of the meeting and the attendance of that meeting by accused persons. He referred to the evidence of DW15. Serina Namawejje, the widow of Late Kawesa; who is the resident in the home where the meeting is said to have taken place.

 

He also emphasized the evidence of DW7 (A.7) who gave an account of what took place at Late Kawesa’s home on the date in issue. He called on the Court to evaluate the evidence of DW7, DW15 viz-a-vis the evidence of PW1, Musinguzi Duncan and PW2 Mbabazi Norman.

 

Counsel for the accused persons submitted on the issue of conduct of each person. He submitted that none of the accused’s conduct after the alleged commission of murder of Late Tumwine Stephen was inconsistency with the accused’s guilty mind.

 

He further submitted on the alibi that were set forth by each accused person. He stated in his submissions that the alibi set by the accused persons were corroborated by their respective witnesses (DW8, DW9, DW10, DW11, DW12, DW13, DW14, and DW15) were not disproved by the prosecution in cross examination.

 

Further, counsel for the accused persons submitted on the issue of the grudge between the accused persons and the deceased, the Late Tumwine Stephen, that especially with A.1, A.4, A.6 and A.7.  He submitted that the said grudges were insufficient to warrant the cause of the unlawful death of the Late Tumwine Stephen. He prayed to court to find that the accused persons did not cause the death of late Tumwine Stephen, nor did they commit the offence of aggravated robbery. He prayed that the accused persons should be acquitted of the charged offences and set free. He emphasized his submissions, in his submissions in rejoinder.

 

In his detailed submissions in reply, Mr. Richard Birivumbuka, Counsel for the prosecution, submitted that the prosecution proved all the ingredients of the charged offences on two counts, beyond reasonable doubt. He criticized the accused’s and their witnesses’ evidence. He also criticized the submissions by Counsel for the defence. He relied on a number of authorities to justify the prosecution’s case.

 

He prayed that Court finds each accused person guilty of murder and aggravated robbery and that each accused person be convicted as charged.

 

It is noted that the accused persons are jointly charged with causing death of Late Tumwine Stephen and robbing from him. Shs. 7,000,000/=. To a common person outside there would pose a question, since there was one murder weapon recovered from the scene of crime, it is possible that each accused person murdered the deceased and robbed the deceased of his money?

 

In Criminal Law, the aforestated falls under the participation and liability in a crime. It is settled law that when an offence has been committed, it is not only the person who committed the actus reus that he is liable. There are different modes of participation in a crime. The level of participation does not purse limit the liability of the individual.

For the purpose of this case, I shall only consider two, namely principal offender and joint offenders.

On principal offender; section 19 of the Penal Code Act, Cap. 120, provides that:-

“ (1) When an offence is committed, each of the following person is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it:-

  1. Every person who actually does the act or makes the omission which constitutes the offence;

 

  1. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

 

  1. Every person who aids or abets another person in committing the offence”.

 

Then as for joint offenders, section 20 of the Penal Code Act, Cap. 120, provides, that:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose each of them is deemed to have committed the offence”.

 

In such scenarios as described above, the burden is on the prosecution to prove the offences charged against each accused person, as I have already discussed hereinabove in this judgment.

Upon examination of the prosecution evidence and upon analyzing the submissions by both parties, it comes clear to me that there is evidence ranging from direct, circumstantial and character evidence that was adduced by the prosecution against the accused persons. Equally, the defence in their respective evidence put up a formidable defence.

On direct evidence, the prosecution relied on the evidence of PW1, Musinguzi Duncan and PW2, Mbabazi Norman. PW1 gave evidence that he knows all the accused persons. That he had known A.1 for three (3) years before this incident. That apart from A.5 whom he knew by face having seen him once before this incident. That he had known A1, A2, A3, A4, A6 and A7 for three years. He described how he came to know each accused person. That the deceased was murdered on 17th day of July, 2017 during the day, around 12:00 noon, at Butologo L.C.I

That on that date, as him, Mbabazi Norman (PW2), Nshekanabo, the late Tumwine Stephen, and another Muzee whom he did not know had gone to Butolo L.C.1 to pay for a piece of land for Sengendo Peter before reaching the home of late Kawesa, the home of A.6 and A.7, they saw about twenty (20) people in the compound of that home as if they were in a meeting. That him and his colleagues were in a distance of 10 (ten) meters.

That the people in the meeting were saying that “to day we have to kill someone”, as they were mentioning the name of Tumwine Stephen. That in that meeting he identified A.1, A3, A4, A5, A6 and A7. He mentioned many more suspects who are still at large. That some had clubs and others pangas. That immediately the accused persons and others still at large came rushing and confronting them with pangas and clubs. That for them they ran, and that the accused caught up with the deceased who could not manage to run fast. He gave a lengthy evidence in relation to each count. PW2 Mbabazi Norman gave similar evidence to that of PW1.

From the evidence on Court record, save for A5 (DW5), the rest of the accused persons in their respective pieces of evidence confirmed to Court that they knew both PW1 and PW2.

From such evidence, it is clear that PW1, PW2 and the accused persons know each other and that they had seen each other before the incident. The accused told court where PW1 and PW2 were working in a tree plantation in Madudu Sub County. DW8 (Nyombi James (witness for A.1), said he very well knew the deceased and PW1. DW9 (Witness for A.2) Balongo Fred, said that he knew PW1. DW10 (Witness for A.2), Nanyonyi Annet, said she knew PW1 very well. In her evidence in court she further stated that PW1 was badly treating them in Butolo village. Even DW15 (Witness for A.6 and A.7) Namawejje, in her evidence said that she knew the deceased, Tumwine Stephen and Musinguzi Darncan (PW1). In their respective evidence, none of the accused persons ever said that they ever had grudge with PW1 and PW2, save for DW10 who was a witness for A2 (DW2) who said that she is not on good terms with PW1 because of his bad treatment of them.

DW7 (A.7), DW11 (witness for A.3), Sebayiga Israel, the son of A3, in his evidence he confirmed that PW1 and PW2 were near the scene of crime, so is DW15 (witness for A6 and A7).

Thus since DW7 (A7), PWII and DW15 did not dispute the presence of PW1 near the home of Late Kawesa, the scene of crime and PW1 said that he was PW2, Mbabazi Norman, then the presence of PW2 at the scene of crime cannot be in issue.

It was the evidence of PW1, PW2 and DW11 (Sebayiga Israel) as to the reason as to why them and Tumwine Stephen were in Butolo L.C.I was to compensate a one Sengendo of his Kibanja which was in Butolo. PW1 gave evidence that the deceased had Shs. 7,000,000/= in his pocket. PW2 and DW11 agreed with PW1 in their evidence that the deceased had money as he was going to pay for a certain kibanja. On how much money the deceased had could be gathered from the evidence of PW1 who said that they were supposed to compensate Sengendo for his kibanja Shs. 12,000,000/= and money divided into two, between (PW1) him and the deceased, that is, Shs. 7,000,000/= and Shs. 5,000,000/= (which is in the possession of PW1).

It is important to note that the murder of Tumwine Stephen accused between 11.30 a.m and 1:00 p.m. The issue of the time is not in dispute by the accused persons. It is also noteworthy that the distance between the home of Late Kawesa and the main road where PW1, PW2, the deceased and DW11 passed was estimated to be about 10-20 meters. DW7 (A7) directly and DW11 (Sebayiga Israel witness for A3) impliedly gave evidence that the Court yard of the home of Late Kawesa goes up to the main road where DW15 ordinarily stays and A6 and A7 were her sons. This means that the home of Late Kawesa and the main road were too close. Again, in their evidence A7 (DW7) and his witness, DW15 confirmed to this Court that on 17th July, 2017 the date of the incident they were at Late Kawesa’s home, that they were able to see what was happening on the main road. That corroborates the prosecution’s evidence as to why the accused were able to identify the deceased, PW1 and other people the deceased was moving with.

In cross examination DW7 (A7) told Court that the person on the road would see and identify him. DW15 in cross examination said that the farm workers were able to see her. That they chased her, though she managed to run faster than them and hid herself.

 

PW1 and PW2 at the time they were moving on foot, when they were near the home of Late Kawesa where there was a meeting, stood for some minutes, which fact was confirmed by DW7 (A7) and DW15 in cross examination.

According to PW1 and PW2, that they even greeted the accused persons, among others who were at the meeting in the home of late Kawesa. This episode of identification took place for close to 20 minutes.

During the submissions by Counsel for the accused persons, he raised and submitted on the issue of lack of proper identification of the accused persons by PW1 and PW2. For the identification to be proper, the person giving evidence that he identified the assailant would be familiar with the person he/she is identifying, proximity, time taken looking at the assailant, the source of light, are the conditions for correct identification. See the case of Abdallah Naburere & Another –Vs- Uganda, Criminal appeal No. 09 of 1978-  (1979)  HCB 77. The same conditions were held in the case of Butera –Vs- Uganda SC CA No. 21 of 1994 and Roria –Vs- Republic (1967) EA 583.

In the instant case, PW1 and PW2 gave evidence that they knew the accused persons, the time was between 11:30 a.m -1:00 p.m, when the murder of the deceased took place. There was enough light from the sun, they were in close proximity and they took some minutes looking at the accused persons.

It is my finding thus that conditions for proper identification of each accused person existed at the time. Even the evidence of PW1 and PW2, they identified other people: Sekabira, Baate, Semwombe Fred son of DW15 and many others who were not arrested and charged with the accused persons.

I have considered the demeanour of witnesses that testified in this case. PW1 and PW2 when giving evidence, were firm, composed and their pieces of evidence was never contradicted  in cross examination while and whereas, the defence witnesses were disorganized in cross examination by the prosecutor. They could take some time to respond to the questions put to them in cross examination. They could at times refuse or/ and fail to answer questions put to them by Counsel for the prosecution in cross examination. Wherefore in total examination of the entire evidence in that regard, I find PW1 and PW2 are more truthful. I further make a finding that there was proper identification of each accused person at the scene of crime, at the home of Late Kawesa.

In his submissions, Counsel for the accused persons submitted that PW1 and PW2 did not identify A2 and A5. In their evidence PW1 and PW2 did not rule out that A2 and A5 were not at the scene of crime. Again, the evidence of PW4, No. 26298 D/CPL. Ojuka Livingstone explained very well that the admissions made to him by A3, A4, A5, A6, and A7 did put A2 at the scene.

Again PW1 in his evidence said that A2 was aware that the deceased was going to Butolo to compensate Sengendo of his Kibanja and being in the meeting at the home of Late Kawesa in Butolo L.C.I, which area A2 was its Chairperson. That explains why A2 ought to have been in that meeting.

For A5, it is not in dispute that he is a born of Butolo L.C.I. A5 himself and the other defence witnesses confirmed that A5 is a born of Butolo L.C.I. This explains why A5 was an election campaign agent of DW9, Barongo Fred. The evidence of PW4 put the accused (A5) at the scene. PW4 gave evidence that A3, A4, A6 and A7 made admissions to him that A5 was among the people that were at the scene.

According to section 2 (1) (d) of the evidence Act, Cap. 6:-

“evidence denotes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved and includes statements by the accused persons, admissions, judicial notice, presumptions of Law and ocular observation by Court in its judicial capacity”.

 

PW4 was the Investigating Officer in this case. Thus the matters he heard from each accused in his capacity as an Investigating Officer under section 59 of the Evidence Act (Supra) became direct evidence.

It is also on Court record that none of the accused persons either in cross examination of PW4 nor in their respective evidence disputed what PW4 said against each accused person. That failure on the part of the accused persons corroborated the prosecution’s evidence as against them. In cases like this one, the Court also has to look at other scenarios like prior threats to the deceased by the accused persons, naming of people they saw at the scene shortly after the commission of the offence, such as statements made at the police and the fabrication of alibi. See the case of Moses Kasane –Vs- Uganda Criminal Appeal no. 12 of 1981.

 

Furthermore, both Counsel for the parties submitted on circumstantial evidence. Such evidence to qualify as to incriminate the accused persons has to be independent of direct evidence. That is, that with or without direct evidence points to move other than the accused in the dock. At that time it must be irresistibly clear that, it is the accused who committed the charged offence. See the case of Bogere Moses and Kamba Robert –Vs- Uganda, SC CA No. 10/1987 and that of Tumuheirwe Moses –Vs- Uganda (1967) EA 308 in definite circumstantial evidence.

In considering the circumstantial evidence regard must be made to PW1 and PW2 who informed PW3, Kyoheirwe Anna, the police, the people who had murdered the deceased, and their testimonies were consistency right from the time the offence was committed up to the time they gave evidence in Court, they were mentioning the names of the accused apart from A2, among others. It is note that what PW1 and PW2 told PW3 and PW4 was exactly what A3, A4, A5, A6 and A7 informed PW4 (the Investigating Officer).

On whether there were prior threats or not, that is evidenced as from the evidence on Court record in the conflicts between the deceased and the accused persons; and this forms part of circumstantial evidence. It was the testimony of PW1, PW2, PW3 and PW4 that there were conflicts between the deceased and A1. A1 never disputed that fact. A1 had filed many cases against the deceased in the Local Council Courts and Law Courts.

Also the conflicts were talked about by A2, A4, A6, A7, DW8 among others. The conflicts between A1 and the deceased according to the evidence on the Court record was so deep. PW1 and PW2 in their evidence said that the accused (A1) was issuing death threats to the deceased on a number of occasions. The evidence on the Court record reveals that there was a conflict between A2 and the deceased. Whereas A2 denied such conflict, DW10 (witness for A2) confirmed that such conflict existed between the two. See her evidence in cross - examination. DW10’s evidence in cross- examination unearthed some lies in DW2’s (A2) evidence in examination in Chief. In the case of Hajj Musa Sebilumbi –Vs- Uganda SC CA no. 107 of 1987 it was held that such lies exhibited by the accused person do corroborate the prosecution case. DW10 gave evidence that they were not happy with the management of Formasa, where the deceased was the Manager, gives a clear proof why the meeting was held at the home of late Kawesa.

Whereas A3 in his testimony denied any conflict between him and the deceased, DW10 in her evidence stated and confirmed to Court, in cross – examination that there was a conflict between A3 and the deceased arising from their pieces of bibanja which were being bought by the deceased on behalf of Formasa Company. A3 denying such conflict was a deliberate lie which points to the credibility and truthfulness of A3 and his evidence. Thus such deliberate lies corroborate the prosecution case.

Again, from the evidence on Court record there were many conflicts between A4 and the deceased. Such conflicts were also confirmed by A1, A2, A3, A4 (DW4) and DW10 in their evidence in cross- examination.  PW1, PW2, PW3 and PW4 in their evidence gave in detail the nature of the conflicts A4 had with the deceased. They stated that A.4 had threatened to murder the deceased. This is also explained by the criminal cases between the deceased and A4 at Mubende Chief Magistrate’s Court.

For A5, a conflict is inferred from the fact that he derived his livelihood from his land at Butolo village, which the deceased was according to the accused persons was threatening to grab. A5, A2 and DW10 in cross examination confirmed that fact. A5 was a close friend of A2, A6 and A7. DW10 emphasized that A5 used to cultivate the Kibanja of the Late Kawesa. That also explains why the arrest of A7 was partly an effort by A5 who led the police to A7’s home.

On the issue of threats by A6 and A7, DW10 gave her testimony stated in cross examination that indeed there was a conflict between A6, A7, and the deceased. Whereas A6 and A7 are disputing that fact, DW15 (witness for A6 and A7) in her evidence in cross examination argued that the said conflict happened some time back in the management of Abel who was replaced by the deceased. DW10 in her evidence in cross examination confirmed that those conflicts still exist and that, that is why a meeting was held in the home of Late Kawesa. It is also on Court record that because of the conflict between, A6, A7, their family and the Formasa management, A6 and A7 assaulted the Operator of Formasa Company whom the prosecution evidence states that he died. A.6 and A7 confirmed in their evidence that they were charged with assaulting that person, pleaded guilty and that they were sentenced to community service.

I now turn to consider the alibi that was raised by each accused person. In addition to denying the charges in total, each accused person raised an alibi. A1 informed Court that he was at Madudu Sub County Headquarters to pick his judgment (ExhP 11) and that he went there at 10:00 a.m on the alleged date of the incident. That after picking his judgment he went to Kilawula Trading Centre to the home of DW8 (Nyombi James). However, PW1 and PW2 in their evidence stated that BY 11:30 a.m they saw A.1 at the home of Late Kawesa. DW8 in his evidence said that he does not know what A.1 did between 10:00 a.m and 1:00 p.m on the date of the incident.

Again A.1 gave evidence that he has no grudge with PW1 AND PW2. This means that PW1 and PW2 were totally independent witnesses. They too, in their evidence said that they have no grudge against each accused person.

I perused the evidence of DW1 (A1) and DW8 (Witness for A.1) and noted some contradictions that do negative A1’s alibi. A1 said that he went to the home of DW8. In his evidence in cross – examination, DW8 denied A1 ever going to his home on 17th July, 2017. DW1 (A1) stated that he looked for DW8. DW8 in his evidence in cross-examination said that he only saw A.1 moving in the trading center whereas DW1 (A1) stated that DW8 read through his judgment    (Exh p 11), in cross – examination DW8 stated that he never read through DW1’s (A1) said judgment.

A1 in his evidence said that he looked for DW8 and informed him about the matter of the deceased, however, DW8 in cross examination said that it is him who looked for A1 and informed him about the incident.

In the case of Hajj Sebilumbi –Vs- Uganda (Supra) and the case of Byansi Moses and others –Vs- Uganda SC CA No. 22 of 1989. Such inconsistencies were held to point to the incredibility and unreliability of the witness. In effect the inconsistencies in DW1’s (A1) evidence and that of his witness DW8 waters down the A1’s alibi and corroborates the prosecution case. From the analysis of A1 and DW8’s evidence, it is clear that A1 and DW8 never met on 17/07/2017. Thus, the evidence of A1 and DW8 weighed as against the evidence of PW1, PW2 and PW4, then conflicts I have discussed in respect of A1 and the deceased, such defence does not create a doubt in the prosecution case. Also considering under the circumstances that led to the arrest of A1, hiding in his maize store is not in line with the innocence of the A1. The way he was arrested was never challenged by the accused in his defence.  In essence the alibi of A1 is not truthful at all.

For A2, he told Court that on the date of the incident he was in his garden. And that from his garden he received a telephone call from DW9,  Balongo Fred. His alibi was rebutted by the evidence of PW1, PW2 and PW4, the Investigating Officer. The behavior of A2, after getting the call from DW9, if that was to be believed, he feared being in the village, he never went to the scene to see who had been killed in his L.C.I, he never went to Formasa camp to check what befell upon them for the death of their Manager, and he feared going to the police, to assist the police in investigations. The police looked for him and through its tricks managed to arrest A2 from where he was hiding.

From the evidence of A2 and his witnesses, there are some contradictions that tend to weaken his alibi. From the evidence of DW10 in cross- examination it came out clearly that A2 had hid himself from the police, the conduct that showed that A2 was not innocent. Thus, A2’s alibi did not create any doubts in the prosecution case.

A3 gave evidence that at the alleged time of the incident he was in Madudu and Kilawura Trading Center. A3 and A1 alluded to the fact that they were both at Madudu Sub County Headquarters and that after that they went to Kilawura Trading Center. However, in cross- examination, A3 denied seeing A1 at Madudu Sub County Headquarters.

In cross examination, still A3 denied seeing A1 at Kilawura Trading Center. Yet A1 claimed that he was at Kilawura Trading Center for good time, so is A3. According to the evidence of DW8, Kilawura is such a small trading center that whoever stays in Kilawura or passes through it he could see such person. In evidence in cross- examination DW8 denied seeing A1 and A3 at Kilawura Trading Center on 17.07.2017. Thus these contradictions points to an inference that A3’s alibi is a lie. A3 was squarely put at the scene of crime by PW1, PW2 and PW4.

According to the testimony of DW14 (witness/wife for A6) Nabukera Rose, she stated on that date of the incident there was harmony in the village. Yet A3, A6, A7, and DW15 in their respective testimonies showed that on that date the Butolo village was in chaos. PW1, PW2 and PW4 stated in their evidence that the entire village was partially deserted. PW4’s evidence detailed how A3 partially deserted his home and only came back home at night and was arrested at night, which fact was not specifically rebutted by A3, waters down A3’s alibi.

A3’s witness, DW11 (Sebayiga Israel, his son) in his evidence he did account where A3 was between 11:00 a.m and 1:00 p.m even he never saw A3 thereafter.

For A4; he gave evidence that he was in his garden on that day. That he left his garden at 11:30 a.m and went to Rwenzo village to check on his workers who were cutting for him timber.

To build up his alibi he called DW12 (Nalugo Dinnah, his sister) and DW13 (Tukahirwa Andrew, his uncle). In cross examination DW12 and DW13 confirmed to Court that between 11:30 a.m and 1:00 p.m they were not with A.4. Yet this was the crucial time when the murder of Tumwine Stephen happened. PW4, PW1 and PW2 placed A4 at the scene of crime. As a youth Councilor of the area, A4 at no point went to the police. And the circumstances under which A4 was arrested show that he was in hiding from the police arrest. PW4 told Court how A4 was arrested, all showing that A4 was trying to evade justice. PW4 testified that A4 had disappeared from the village. In essence A4’s alibi was watered down by the prosecution evidence. The lies detected in A4’s evidence and that of DW12 and DW13 give credibility to the prosecution evidence as against him.

In regard to A5, his alibi was properly rebutted in his cross examination by the prosecutor. Just as the defence of A1, A2, A3 and A4, his defence is full of contradictions in his evidence in cross examination. 

For A6, he gave evidence that he was in his garden the whole day of 17.07.2017. However, PW1, PW2, PW3 and PW4 placed him at the scene of crime. A6 and DW14 gave evidence in cross examination that they were at distance of about 300 meters from the scene of crime or in Butolo village.

According to A6, he got information of the death of a person near his parents’ home but never bothered to find out who had been murdered. Even when he found human blood near his parents’ home he never bothered to find out who exactly had been murdered. Yet according to the evidence of A7 and DW15 in cross examination A6 knew the deceased. The A6’s lies were thus deliberate. Such evidence, therefore, forms part of circumstantial evidence and corroborates the prosecution evidence. See the case of Uganda – Vs- Omogolo Stephen HC Criminal Session Case No. 680 of 2000.

As regards A7 (DW7), he put himself at the scene of crime. He was also placed at the scene of crime by PW1, PW2 and PW4. There are some inconsistencies in the A.7’s evidence with that of A6 and DW 15. A7 stated that it is Sekabira Lawrence who killed the deceased, but he never went to the police to report such an incident. His conduct of running away from his home without any reason, he even never informed his co- accused that it was Sekabira who murdered the deceased. He never reported the case of malicious damage of their house and wounding their pig by Formasa’s workers before, at or even after his arrest by the police. This conduct of A7 only points to nothing but to a fabricated alibi.

From the evidence on Court record, none of the accused persons ever went to the police to report the murder of Tumwine Stephen or to find out what had happened that led to the murder of the deceased. All the evidence of the prosecution, plus the conduct of the accused persons proves that the accused had a common intention to commit the charged offences.

Furthermore, it was the testimony of PW1, PW2, DW11 that the deceased had money when PW5, No. 55998 D/C Wabwire Simon, still at the scene searched the deceased’s body Shs. 7,000,000/= was not there. It had already been stolen by the assailants. Thus, it is my finding that the people who murdered the deceased are the same people who robbed the said Shs. 7.000.000/=

It is also my finding even if it is one of the accused who cut the deceased, the one who cuts, so long as they had a common intention to cause death of that person, they are guilty. See the case of Katuramu and others –Vs- Uganda SC CA no. 2 of 1998.

 

In some total and in agreement with assessors, I hold that the prosecution proved all the ingredients of murder beyond reasonable doubt, on count 2.

 

And for the reasons I have given hereinabove in this judgment, I hold that the prosecution proved all the ingredients of aggravated robbery beyond reasonable doubt, on count 1.

 

  1. Conclusion

 

In closing and in total consideration of the entire evidence on Court record, my own analysis of the case, the authorities cited, the submissions by both Counsel and the opinion of the assessors, I do find each accused person guilty of murder of the deceased, on count 2 and guilty of aggravated robbery, on count 1. Each accused person is convicted as charged offences as framed in counts 1 and 2 in the indictment.

 

Dated at Mubende this 23rd day of November, 2018.

 

 

.........................................

DR. JOSEPH MURANGIRA

JUDGE

 

 

Judgment is delivered to the parties in open court.

 

.........................................

DR. JOSEPH MURANGIRA

JUDGE

23.11.2018