THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION NO. 29 OF 2018

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

                                                  VERSUS

A1: BALIRUNO ISMAIL

A2: NABABI DEZILANTA BABIRYE   :::::::::::::::::::::::::::::::::::::::: ACCUSED

A3: KIWALABYE GODFREY

               BEFORE: HON. JUSTICE EMMANUEL BAGUMA

                                              JUDGMENT

The three accused persons were indicted with the offence of murder contrary to sections 188 and 189 of the Penal Code Act Cap 120.

It was alleged that Baliruno Ismail, Nababi Dezilanta Babirye, Kiwalabye Godfrey and others still at large on the 6^th day of November 2017 at Gwatiro village in the Butambala district, with malice aforethought unlawfully killed Nanfuka Justine.

On arraignment, the accused persons denied the charge thus the burden is upon the prosecution to prove all the ingredients. These include;

1. The death of the Person named in the indictment.
2. The death was caused by an unlawful act or omission
3. The act causing the death was accompanied by malice aforethought
4. That the accused persons were responsible.

Under Section 66 of the Trial on Indictments Act, the Prosecution and Defence Counsel agreed to admit in evidence a Postmortem report on the body of the deceased.

In order to discharge the burden of proving the case beyond reasonable doubt, the prosecution called six witnesses namely; Mugume Eric (PW1); Ivan Ssebuuma (PW2) Busulwa Wahab (PW3), Corp. Wadri Zamzam (PW4), D/CPL Mugoya Muhamad (PW5) and DC Tumwebaze Zabrone (PW6).The accused persons gave sworn evidence and A1 called 2 witnesses; Babirye Dezilanta (DW4) and Kiwalabye Godfrey (DW5).

The first ingredient requires state to prove the death of the person named in the indictment.

PW1 testified that his mother was killed. PW2 testified that he found the deceased lying down and was not talking. PW3 testified that he found the body of the deceased in the compound. The other evidence on record is the post mortem report, marked PEX1 which confirms Nanfuka Justine as the deceased.

I therefore find that prosecution has proved ingredient one beyond reasonable doubt.

The second ingredient requires proof that death was unlawfully caused. In that regard, all homicides are presumed to be unlawfully caused, unless caused by accident or in defence of property or person or by an act of God.  (See R –Vs- Gusambizi s/o Wesonga [1948] EACA 65).

PW1 stated that the deceased was hit with a stick on the head. The Postmortem report admitted in evidence indicated that the deceased died from a fracture on the skull causing brain damage. This was not accidental or authorized by Law and since no alternative suggestion was made by the defence, I have no doubt that the death of the deceased was unlawfully caused. I therefore find that ingredient two has been proved by prosecution beyond reasonable doubt.

Thirdly, prosecution has to prove that death was caused with malice aforethought.

Malice aforethought is defined under section 191 of the Penal Code Act to mean;

1. An intention to cause death of a person, whether such a person is the one killed or not.
2. Knowledge that the act or omission causing death will probably cause death of some person, whether such person is actually killed or not.

Malice aforethought is therefore a mental element of the offence of murder and therefore difficult to prove by direct evidence.

However, it can be inferred from the surrounding circumstances of the offence, such as the weapon used, the part of the body targeted, the nature of injuries implicated and the conduct of the assailant before, during and after the offence. (See: RV S. Tubere s/o Ochan (1954) EACA 63)

In the instant case, PW1 testified that his mother was hit with a stick on the head. The post mortem report PEX1 indicated that the deceased died from a fracture on the skull causing brain damage. Basing on the area of the body that was targeted, the head being a delicate part, I find that there was malice aforethought. The defence has also not contested this ingredient, thus; I find that ingredient three has also been proved by prosecution beyond reasonable doubt.

Finally prosecution has to prove that the accused persons were responsible for the death of Nafuka Justine

PW1 testified that he saw A1 kill his mother. He stated that he knew A1 before and that on that fateful night at 8:00 pm he saw someone in a maize garden who immediately came out and hit his mother with a stick and she fell down. He stated that he saw A1 putting on a black shirt and shorts and that A1 also hit him with a brick in the stomach and ran away.

PW2 testified that he heard PW1 crying and he found the deceased lying down and was not talking. He stated that at that time, A1 was standing and he talked to him but he did not hear what he was saying. He stated that he saw A1 holding a panga.

PW3 testified that on the 6/11/2017 at 9:00pm, PW1 and PW2 went to his home and informed him that their mother had been killed by A1 and he proceeded to the scene of crime where he found the body of the deceased in the compound and next to it was a stick and a brick.

However, PW3 added that A2 had a grudge with the deceased over land thus he suspected him to having killed the deceased.

PW4 stated that she arrested A2 from Mityana upon getting instructions from the district CID.

PW5 stated that they went to the scene of crime and found a dead body in a pool of blood and that they recovered a brick and dry stick with blood.

PW6 stated that he arrested A1 upon getting information from PW1 and PW2 that he had killed the deceased. He stated that the children (PW1 and PW2) had told PW3 that the accused was wearing a green pants and black shirt and when they checked the accused, they found that he was indeed wearing a green pant which he handed to the district CID as an exhibit. He also stated that he recovered a black shirt the following day from the accused’s home.

Counsel for the defence opted to file written submissions concerning three issues;

1. That there were grave contradictions and inconsistencies in prosecution evidence
2. That the scene of crime was compromised and tampered with
3. That A2 and A3 were never placed at the scene of crime.

The prosecution also filed written submissions in reply to these which I have considered and will handle together with the evidence on court record.

Counsel for the defence submitted that PW3 contradicted himself in court yet he had first hand information from the minors; PW1 and PW2. Counsel argued that PW3 in court testified that he didn’t tell police that A1 had killed and that he stated that A1 was wrongly arrested. Counsel further submitted that PW3 participated in the investigations and had the opportunity to inform police about the mistaken identity of A1, but he chose to keep silent.

Counsel also submitted that PW2 did not mention in his police statement that he found a stick at the scene of crime yet he was the first person to see the dead body that night. She added that in court, PW2 mentioned that he saw a brick and stick with blood and when asked why he didn’t tell police, he stated that he forgot. Further that PW2 didn’t mention in his police statement that he had seen the suspect with a panga yet in court he mentioned it.

Defence counsel also argued that if the distance between the house and toilet was close, then PW2 should have heard what A1 was saying to him thus it was an inconsistency in his testimony. She also argued that if PW2 had identified the suspect with the moonlight, why would he use a torch to check on his dead mother which was a closer distance to him than the assailant who was in the garden.

Counsel further submitted that PW1 never mentioned in his police statement that he warned his mother about a person in the garden yet in court he testified that he told his mother about the person and that he never revealed the name of the person to the mother thus if the assailant was a friend to the mother, why didn’t PW1 mention his name to his mother. Counsel also stated that PW1 in court stated that he saw a stick not brick that hit his mother yet at police he stated that it was a brick.

Prosecution replied to the defence submissions but limited the reply in regard to A1’s participation only. State submitted that PW1’s testimony was credible since he escorted his mother outside, saw the accused and mentioned what he was wearing which matched what the police recovered from the accused person. He added that PW1 knew the accused before the murder. State also submitted that PW1 testified that there was moonlight which aided him to identify the accused and that PW2 also mentioned in court that there was moonlight thus there is no anomaly in PW2’s testimony when he stated that he also used a torch as the defence counsel is alleging. Lastly prosecution submitted that even though PW3’s testimony casts doubt to PW2 and PW1’s testimony, he was never at the scene of crime.

Before I go into details of counsel’s observations, I wish to mention that these police statements being referred to by defence counsel were never exhibited in court thus court cannot rely on what is not placed before it. In Des Raj Sharma -vs- Reginam (1953) 20 EACA 310 it was held that there is a distinction between exhibits and articles marked for identification; the term "exhibit'' should be confined to articles which have been formally proved and admitted in evidence.

Without prejudice to the above, I wish to state the law on inconsistencies and contradictions as laid out in Sarapio Tinkamalirwe v. Uganda, Criminal Appeal No. 27 of 1989 (SC) where the Supreme Court held as follows:

“It is not every inconsistency that will result in a witness testimony being rejected.  It is only a grave inconsistency, unless satisfactorily explained, which will usually, but not necessarily result in the evidence of a witness being rejected.  Minor inconsistencies will not usually have the effect unless the Court thinks they point to deliberate untruthfulness.”

Further in the case of Baluku Samuel & Anor v Uganda (Criminal Appeal No. 21 OF 2014) [2018] UGSC 26 (24 May 2018) it was stated that;

“…the issue of inconsistency is irrelevant because the critical evidence in this case was not what the 1^st appellant was wearing at the scene, but rather the fact that he was at the scene and was involved in the sharing of the recovered money”(emphasis is mine)

In the instant case, counsel for the defence alludes to the fact that PW3 believed that A1 was innocent and thought that the children, PW1 and PW2 might be mistaken. I wish to state that whatever was stated by PW3 was his opinion and not the facts since he was not an eye witness to the murder of the deceased. What he knew was what the children, PW1 and PW2 had told him therefore if he believed it or not doesn’t affect the fact that he was never at the scene of crime when the deceased was murdered. I shall therefore dismiss counsel’s allegations on that note.

Further, concerning PW2’s testimony, counsel argued that he stated that he forgot to mention about the stick and panga to police yet the events of the night were still clear to his memory and he wasn’t under any trauma to miss out such important information. I disagree with this submission given the fact that PW2 had just lost his mother which is traumatizing enough. Further I wish to add that I have looked at counsel’s submissions concerning PW2’s testimony that is; the issue of the moonlight and torch, stick or panga, and I find that they are really minor and do not affect his credibility.

Lastly, concerning PW1, I found this witness very consistent in court and the mere fact that he was mistaken between a stick and brick doesn’t affect the fact that he stated that he saw A1 at the scene of crime. And the police officers also recovered a stick and brick at the scene therefore counsel’s submission that he mentioned one and forgot the other doesn’t really go to the root of the matter.

In conclusion, I find that these were minor discrepancies in prosecution evidence which did not go to the root of the credibility of the witnesses.

Secondly counsel for the defence relied on the case of Adama Jino V Uganda C.A No. 50/2006 on evidence of a single identifying witness and stated that the conditions surrounding identification of A1 were lacking. Counsel relied on the above case and quoted the judgment thus;

Later on page 22 the learned judge concluded as follows:-

“Though the accused was a very well known person to the witness being village mates, the accused was exposed to the witness at a close distance for up to an hour and there was according to P.W.2 Dradia Christopher torch light, I find that for many reasons the conditions of usual identification were difficult…”

I however wish to cite the entire passage of the judgment concerning identification so that it is clear as to why the learned justices rejected identification of a single witness in that case.

It was stated;

“Though the accused was a very well known person to the witness being village mates, the accused was exposed to the witness at a close distance for up to an hour and there was according to P.W.2 Dradia Christopher torch light, I find that for many reasons the conditions of usual identification were difficult. The witness admitted that all the assailants were dressed in black and they all appeared dark. There is also evidence on record that all the assailants wore head gear therefore making identification difficult. When the witness is supposed to have identified the accused when the witness was already locked up in a shop with the window open, his evidence is that he was lying down on the floor having been warned to stay lying down at the pain of death or being shot. I find these conditions under which the sole identification witness made the visual identification difficult and acting on such evidence requires corroboration” (emphasis is mine).

As we can see from the above case, other conditions like head gears, assailants dressed in black and appeared dark, the witness lying on the floor…. These were the conditions that made identification very difficult in that case. However, in our case, PW1 stated that he knew the accused before, he saw him that night using moonlight and A1 hit him in the stomach, meaning he came closer to him…such conditions I find were proper for identification as opposed to the ones stated in the Adama case by defence counsel.

It is also stated in Section 133 of the Evidence Act that no particular number of witnesses is needed to prove any fact and a conviction can be based on the evidence of a single identifying witness provided Court warns itself of the danger of basing a conviction on such evidence alone. Crim. Appeal No.25/1997 Christopher Byagonza V Uganda

Court can also rely on the identification evidence of a sole identifying witness if the judge after warning the Assessors and himself/herself finds that the identification was positively made without the possibility of a mistake or error. The tests and conditions for deciding that identification was made positively without error or mistake have been laid down in the case of ( Abdalla Bin wendo Vs R [1953] 20 EACA 166, Roria Vs (1967) EA 583 Abdalla Nabulere Vs R. [1979] HCB 77.) These tests are:

(1)    Whether the accused was known to the witness before the offence.
(2)    The condition of the lighting
(3)    The distance from which the identification was made.
(4)    The length of time during which the accused was identified.

As already stated above, PW1 and PW2 knew the accused before, they stated that they used moonlight to see the accused, the toilet where the deceased was near the house, the length of time spent was ample to identify someone especially one they knew before. In the premises I find that the accused was properly identified by the witnesses.

The accused, A1 put up an alibi stating that he was at his home with his wife and children that night until he was arrested at midnight. DW4, a wife to A1 testified that A1 was at home from 7:00 pm till midnight when he was arrested.

An alibi can be discredited either by prosecution evidence which
squarely places an accused at the scene of the crime or by
prosecution evidence which directly negates or counteracts the
accused's testimony that he was in a particular place other than at
the scene of the crime. In the instant case, the accused was squarely placed at the scene of crime by PW1.

DW2 stated that she had a land dispute with Busulwa Wahab (PW3) and also had a case of assault with the deceased before her death. She stated that she did not bury the deceased for fear that Busulwa (PW3) would kill her. DW3 stated that he had a grudge with Busulwa Wahab (PW3) and that he was arrested from Kibibi.

I have considered the evidence about DW2 and DW3 and I find from the testimonies on record that PW1 stated that he did not see A2 and A3 at the scene of crime. PW2 also stated that he never saw A2 and A3 at the scene of crime. The corroborative evidence that connected A2 and A3 to the murder of Nanfuka Justine was far-fetched and out of hearsay or rumors that PW3 alleged that there was a grudge between the deceased and A2 and A3. Prosecution did not also respondent to the submissions by defence that A2 and A3 were not placed at the scene of crime. Basing on my observations I find that it is true A2 and A3 were never squarely placed at the scene of crime.

Further, defence counsel submitted that  the scene of crime was compromised and tampered with by the crowd of people leading to incompetent investigations and weak evidence y the prosecution. PW5 who went to the scene of crime testified that  he found a dead body in a pool of blood and that there were many people at the scene but DC Tumwebaze had secured the scene he stated that the body was 4 meters away from the house he also stated that he collected the exhibits, the brick and stick. PW6 confirmed PW5’s testimony on the position of the body from the house and the exhibits that were recovered. He added that the scene was guarded by the crime preventer and not tampered with.

I therefore hold that the scene of crime was never tampered with as seen from the testimonies of PW1 and PW2 that the deceased was lying few meters from the house .PW3 also stated that he found the deceased in the compound and there was a stick and block besides it. This is in line with PW5 and PW6’s testimonies thus the scene was preserved.

In the premises, I find and hold that PW1 and PW2 made direct reference TO the accused, Baliruno Ismail as the one who was involved in the plan and actually murdered Justine Nanfuka.

The circumstantial evidence sought to be relied upon by prosecution to connect A2 and A3 to the murder of Justine Nanfuka, was far-fetched and couldn’t be relied on to point to the guilt of A2 Babirye Dezilanta and A3 Kiwalabye Godfrey.

The misunderstandings between A2, and her sister the deceased were part of the normal misunderstandings that sisters can have.

The evidence was just suspicion that can’t be relied on to support the conviction of A2 and A3.

The evidence of Wahab, PW3 did not point to A2 and A3’s participation in the murder of the deceased and his evidence was not corroborated with independence evidence linking A2 and A3 to the murder.

On that note therefore and in agreement with the assessors, I find A2, Bbabirye Dezilanta and A3 Kiwalabye Godfrey not guilty of murder and I acquit them accordingly.

On the other hand, and in agreement with the assessors I find A1, Baliruno Ismail guilty of the offence of murder C/S 188 and 189 of the Penal Code Act and I therefore convict him.

…………………………………………………

Emmanuel Baguma

Judge

17/7/19

Prosecutor: - Aggravating factors.

My Lord, the prosecution has no previous criminal record against A1.  However, I pray for a stiff sentence.  The deceased was murdered in a cruel manner.  The accused denied her life and left her children.

The accused killed the deceased in presence of her children which will leave to their life.  My Lord human life should not be taken away by such acts.  I pray that A1 be sentenced to a stiff sentence.

Allocutus:-Mitigating factors:

The accused is the first offender he is 27 years old, he has no previous criminal record.  He has six children and wife who are dependants.   A1 has been on remand since 16/11/2017 making it one year and 8 months on remand.  I pray that time spent on remand be considered while giving sentence. I also pray that accused be given chance to say something.

Accused (A1):

I pray for mercy, I have been on remand for one year and 8 months and I have children who were defendants on me.

Reasons and sentence:

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

Accused (A1) is sentenced to 23 years and 8 months imprisonment.

However, since the accused has been on remand for one year and 8 months, I will subtract the 01 year and 8 months   from 23 years and 8 months as the period accused has been on remand.

In the view of the above the accused (A1) is sentenced to serve a period of 22 years imprisonment.

Emmanuel  Baguma

Judge

17/7/2019.

Court:

Right of appeal within 14  days explained to both parties.

Emmanuel Baguma

Judge

17/7/2019.