THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION NO.192 OF 2018

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

VERSUS

A1. LINDIRO ATANANSI

A2. HABISHUTE SYLEVESTER

A3. KANYIKE RICHARD:::::::::::::::::::::::::::::::::::::::::::::::::::::::ACCUSED

BEFORE HON: JUSTICE EMMANUEL BAGUMA

JUDGMENT

1. Lindiro Atanansi, Habishute Sylevester and Kanyike Richard were indicted with the offence of murder contrary to Section 188 and 189 of the Penal Code Act.
2. The state alleged that Lindiro Atanansi, Habishute Sylevester and Kanyike Richard on the 26^th day of February 2016, at Kijojo village in Gomba District with Malice aforethought unlawfully assaulted Ssentongo Peter who sustained injuries leading to his death on the 7^th day of March 2016.
3. When arraigned before court, the charges were read to the accused persons and they all pleaded not guilty and a plea of not guilty was entered.
4. After a plea of not guilty was entered, it then became a duty of the prosecution to prove all the ingredients of the offence of murder against all the accused persons beyond reasonable doubt since an accused person is presumed innocent till proved guilty by the state. See Article 28 (3) of the Uganda 1995 Constitution, R V Muzabia BIM Muloni [1941] 8 EACA 85.
5. To prove the offence of murder, the following ingredients must be proved by the prosecution;

• That the deceased is dead.
• That death was unlawfully caused.
• Caused out of malice aforethought.
• Participation of the accused.

1. The state called a total of three witnesses in an attempt to prove its case and they are; Kakooza Matia Sande (PW1), NO. 25812 Sgt Namara Fed (PW2) and Semanda Yosam (PW3). The defence never called any witnesses but they themselves gave court their defence.
2. At the preliminary hearing, as required by Section 66 of the Trial On Indictment Act, the postmortem report dated 7/3/2016 in respect of Ssentongo Peter conducted by Nassozzi Aisha a medical officer at Maddu Health Centre IVwas admitted and tendered in court and marked PE.1, the police forms 24 in respect of all the accused were also admitted and tendered in court and marked PE2, PE3 and PE4 respectively.
3. PW1 Kakooza Sande told court that before the accused persons’ arrest, he had known A1 forone month, he had known A2 for two months and he had known A3 since childhood. He said that he had also known the deceased for one month and he was staying in the farm of one Mugyenda Stephen.
4. He told court that on the 26^th day of February, 2016 at 3:00pm, he was at Kijojo working in the garden of Kanyike Richard from morning to noon. Then Mr. Kanyike Richard asked him to come back in the evening to pick his money. When he went back at 4:00pm, he found Kanyike’s wife who told him that Kanyike Richard was not present. He went away and returned at 7:00pm but still Kanyike was not present but he found HABISHUTE alias SSALONGO (A2) and his wife Nalongo and Kanyike’s wife and another girl. He said that he found the deceased Ssentongo Peter tied with a rope and he was crying to him that “Sande help me to remove the rope”. As he tried to help the deceased remove the rope, A2 told him that if he removes the rope from the deceased, they will also beat him then he walked away.
5. PW1 told court that he saw (A2) and his wife holding sticks but they were not beating the deceased. He said that as he was going out of the garden, he meant A3 with another boy. He asked for his money from A3 and he gave it to him. PW1 said that he then asked A3 about Ssentongo (the deceased) who was tied and A3 told him that he was going there. PW1 proceeded and went home. Then on 5/3/2016 he met Semanda in the morning in Kijojo town and he asked him about Sentongo since he was working in the same farm. Semanda told him that Sentongo was not taken to police. Then PW1 and Semanda went and reported the matter at police. At police, they found a Police Officer by the names of Namara Fred and they made statements.
6. PW1 said that after he had made a statement at police, he decided to go to Maddu Health Centre and he found Ssentongo (the deceased) in a bad condition with injuries in the neck and he could not talk. He then rang O/C Namara and informed him that the deceased was in Maddu Health Center. PW1 said that after one day, O/C rang him and told him that Ssentongo had died.
7. In cross- examination, PW1 told court he did not see the person who tied the deceased, he found him tied. He said the deceased was tied in the garden but Kanyike Ronald’s (A3) was not there. PW1 also confirmed to court that he did not see any one beating.
8. PW2 NO.25812 Sgt Namara Fred a police officer who was in March 2016 attached to Kajumiro police post testified to court that on 5/3/2016, while on duty, Kakooza Matia and Semanda Yusuf whom he had known for over two years came to him and asked him whether he had received a case about one Ssentongo who had been arrested by A2 for stealing maize of A1. PW2 told court that he answered them in the negative because he had not registered any such a case. He said that PW1 and PW3 told him that it was on 26^th/2/2016 when they last saw the deceased being assaulted by A2.
9. PW2 said that he tried to find out from police but they had no idea. He advised Kakooza Matia and Semanda to check with the hospital of Maddu which they did and the following day, Semanda called him and told him that they found Ssentongo in Maddu Health Centre IV but could not talk. He proceeded to Maddu Health Centre and met Ssentongo but he could not talk. He was in critical condition. He said that while in the hospital, he looked at the Medical file and it indicated that the deceased was assaulted. He had bruises around the shoulder and signs of beating.
10. He said that after he decided to look for A1 who was alleged to be the owner of the maize that was stolen. He got A1 at Maddu Sub-county drying maize and arrested him. PW2 told court that A1told him that it was A2 who arrested the deceased after stealing the maize. A1 told PW2 that for him he was just called after the deceased had been arrested and assaulted but he decided to leave the deceased to go after asking for mercy. PW2 said that A1 advised him to get A2 before he runs away. He proceeded to the garden with Abdul the crime preventer and Defence kijojo LC.1 and other people and arrested A2. PW2 said that on arresting A2, he told him that it’s true he had arrested the deceased because he had stolen the maize but it was not him who assaulted the deceased but A3. A2 insisted that even A3 should be arrested because he is the one who assaulted the deceased.
11. PW3 Semanda Yosam told court that he knew all the accused persons. He said that on 27^th/2/2016 on a Saturday, one Tumwebaze rang him in the morning as he was in his garden and told him that he wanted to talk to A3 and he took the phone to A3 but as he was going to take the phone, he passed via A1’s garden/home and found five people who were like in the meeting. He asked them what they were doing and A2 told him that they had arrested a thief stealing maize. They all told him that they beat up the thief and they let him go without taking him to the chairman. They told him that the thief was called Ssentongo whom he knew very well as a person who was working for A3.
12. PW3 told court that A1 then told him that the thief begged for mercy and he let him go. He said that he proceeded to A3’s garden who also narrated to him the same story. He said that then after one day, he meant a man called Stephen who asked him about the whereabouts of the deceased and he told him that he had not seen him also. Immediately he decided to go and report to police of Kajumiro which started investigations.
13. In cross-examination, PW3 told court that he did not see any one beating the deceased but he was only told by A1 and A2. He said that he saw A1’s wife care taking the deceased in the hospital
14.  
15. Whether the deceased is dead.

By reason of Exh P1 the post-mortem for Ssentongo Peter carried out by Nassozi Aisha a medical officer at Maddu Health Centre IV, indicated that Ssentongo Peter is dead and the cause of death was closed head injury as a result of assault. This court therefore finds that the prosecution proved beyond reasonable doubt that Ssentongo Peter is dead.

1. Whether his death was unlawfully caused.

In all cases the killing of human body is taken to be unlawful except if accidental or excusable. In the instant case, PE.1 indicated that the deceased died as a result of closed head injury. This was corroborated by the evidence of PW1, PW2 and PW3 who told court that they saw the deceased in a critical condition in the hospital but he had a big cut wood in his neck. That evidence showed unlawful killing of Ssentongo Peter.

1. With malice aforethought.

Section 190 of the PCA defines malice aforethought to mean the intention to kill.For Court so establish if the killer had the intention to kill it considers;

• Weapon used
• Part of the body targeted
• Nature and degree of injury inflicted
• Conduct of accused before and after the offence was committed.

Considering all the above, in the present case this court is left with no doubt that whoever killed Ssentongo Peter intended to kill him in the view of Exl. P.1, degree of injury and position of the injuries.

1. Whether the deceased was killed by the accused persons.

It is the evidence of PW1 that he found the deceased tied with ropes; A2 and his wife were holding sticks but where not beating. He said that the deceased asked him to untie him from the ropes but as he tried to do it, A2 threatened him and told him that if he untied the deceased from the ropes, he will beat him.

PW1 further told court that on the 5^th/3/2016 while in Kijojo town, he meant Semanda (PW3) and asked him about the deceased and he told him that the deceased was not taken to police. They went to police to inquire if the deceased’s case was registered but the police replied them in the negative. PW1 then proceeded to Maddu Health Centre IV where he found the deceased in a critical condition and could not talk. He had a big cut wood in his neck and the next day he was pronounced dead.

1. PW3 also told court that on the 26^th day of February 2016, he received a call from a one Tumwebaze who wanted to talk to A3 but told him to wait so that he could take the phone to A3. He said that on his way as he was going to take the phone to A3, he passed via the garden of A1 and he found there people as though they were in the meeting. He then asked them what the problem was and A2 replied him that they had arresteda thief stealing maize. They all told him that they beat him up the thief and let him to go without taking the matter to LC.1. He said that among the people who told him that they had beat up the deceased and let him go, was A1 and A2.He said A1 told him that the deceased begged for mercy and he let him to go.
2. PW3 further said that when he reached where A3 was, he also told him the same story.
3. However on the other hand, all accused persons denied participation in the commission of the offence and said; DW1 told court that on the 26^th/2/2016 he was in Maddu Town the whole day and slept there. Then on 6/3/2016 while in Maddu town, two men came and arrested him. DW2 told court that on 5^th/3/2016 while in the garden four people came and arrested him. And DW3 said that on the 26^th/2/2016 he was in Maddu town in the Market and on 12/7/2016 he was arrested from Maddu town.
4. However, considering the evidence adduced in court by the prosecution, PW1 told court that he found the deceased tied on the ropes and tried to help him remove the ropes but was stopped by A2. He said that when he was trying to untie the deceased, PW1 said I quote; “as I tried to help the deceased A2 told me that if I remove the rope they will also beat me then I walked away” A2 having stopped PW1 to help the deceased on 26/2/2016 remove the ropes, the deceased was not seen again till 5^th/3/2016 when he was found in the hospital in a critical condition and on 7^th/2/2016 was pronounced dead and the cause of death was found to be closed head injury as a result of assault.
5. In the view of the above, thiscourt therefore finds that the assaultsA2 inflicted on the deceased on the 26^th/2/2016, resulted into his death. Thus, the prosecution proved beyond reasonable doubt that it is A2 who caused the death of the deceased.
6. As advised by the Gentleman and Lady Assessors, I convict A2 as charged.
7. A1 and A3 are acquitted unless charged with any other offences.

Emmanuel Baguma

24/09/2016: 2:00 p.m.

Three accused in Court

Attendance:

M/s  Betty Agola Pr. State Attorney for prosecution

Mr. Kumbuga Richard for accused on state brief.

M/s Mbabazi Prossy  court clerk.

Mr. Tabula Edward            

M/s Najjemba Regina           Assessors

Prosecutor:      For judgment.

Court:               Judgment is ready and delivered in open court.

Emmanuel Baguma

Judge

24/09/2018.

Prosecution:   Aggravating  factors.

A2 has no previous record.  However he took away  some one  life and the  maximum sentence is   Murder.

At the time  the deceased  met his death he still had full of  life  ahead of  him which was  brought to the end by A2.

The evidence  adduced  shows  and placed  the  accused (A2)  to the scene of the crime.

The deceased was in great pain as stated by all the  prosecution evidence  as the deceased could  not talk.  I pray for 30 years imprisonment

Defence  counsel mitigating  factors

The convict is the first offender as he has no previous record.  In the  circumstances I pray for  mercy.  I pray for the  2^nd  chance to make  him reform.  The convict is married with one wife and four children aged 3-6 years

A2  was  self  composed  at the time of the offence.  The convict  has dependents.

The  circumstances under which the offence was committed.  It would have been manslaughter.  The convict was  provoked by the  actions of the  deceased who was stealing the  maize and A2  and others  decided to beat  up the deceased and  unfortunately the beating  resulted  into murder.  I pray that A2 be  given chance to  reform and become  good citizen . I pray that time spent on remand be considered.  I pray for 15 years imprisonment given the above circumstances   can make the convict reform.

Reasons for sentence and sentence of A2:

I have considered both aggravating  and mitigating  factors as submitted by both the prosecution  and the  defence.

I have also considered  the circumstances  under  which  the offence was committed.  I have  also considered the time  of two  (2) years,  five (05) months  and  Twenty four  (24) days  A2  has been on remand.  It is  reported that  he will reform afterwards given an opportunity .  It is  important that A2  will reform after the sentence.

Sentence of A2:

A2 is  sentenced to 20 years  imprisonment.  However, I will subtract  the two years,  five months and 24 days  the convict has been on remand. 

In the view of the above  after deducting  the two years , five months  and 24  days.  A2 is hereby sentenced to serve a period  of 17 years  six months  and six days  imprisonment.

Emmanuel Baguma

Judge

Court:             Right of appeal communicated  within 14  days.

Emmanuel Baguma

Judge

24/09/2018.