REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

.
CRIMINAL SESSION CASE 127 OF 2012

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

VS

LUBANGO ABRAHAM ::::::::::::::::::::::::::::::::::::::::::ACCUSED

BEFORE HON. JUSTICE LAWRENCE GIDUDU
JUDGMENT.
Kakayi Prisicilla was found dead in her house on 7th November, 2011. Lubango
Abraham, now accused, was arrested for her murder. He denied the charges
hence this trial.
The prosecution case is that a day before her body was discovered, the deceased
was planning a journey to Kenya as usual, in the company of the accused. The
accused was at the deceased’s house where he usually stays. The two were
herbalists. They had planned to leave very early. The next day the deceased’s sons
found her house locked but the goat was still inside. In the afternoon, they
decided to open the behind door only to find her dead. She suffered a fractured
skull with the brain matter exposed. A postmortem report concluded she died of
hemorrhagic shock due to excess bleeding. The accused who had spent a night in
the same house was missing. Two days later, he was sighted in Lwakhakha trading
centre and arrested after a chase.
The accused denied being in the deceased’s house or village that day and night. It
was his defence that on that day and night, he was with his sister in Mbale town
helping her with shop keeping.
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The following day the sister sent him to Lwakhakha trading center to shop for
goods for sale. While there, he was ambushed by a mob that took him to the
police without charges. He was detained. Shortly the police charged him with the
murder of an old woman. He contends the charges were a frame up as revenge
for the reports he had made about villagers who possessed illegal guns.
On an indictment for murder, the prosecution has the burden of proving the
following essential ingredients of murder beyond reasonable doubt.
I. Death of a person
II. Death must have been caused unlawfully
III. Death must have been caused with malice aforethought.
IV. The accused must have participated.
At the conclusion of the trial, both the prosecution and defence witnesses agree
that Kakayi was murdered and is buried. The cause of her death was unlawful
because she died of wounds inflicted upon her by assailants. The impact of the
injuries caused her instant death. Dr. Bumba observed in the postmortem report
thus:- “ The murderer had enough time to make a single precise strong hit, the
deceased could have been asleep at the time of attack”
This observation reveals that this was a premeditated attack. The force used was
great. The target was the head. The impact caused the brain matter to pour out.
The intention to kill is abundant. Malice aforethought was proved beyond
reasonable doubt. The first three ingredients are proved beyond reasonable
doubt.
The accused denied participation in the murder and set up an alibi.
The prosecution adduced the evidence of the deceased’s sons such as
Mafukimabi (PW1) and Makabuli (PW5) whose evidence is that the accused was
in company of the deceased at her home in the morning and later in the evening.
That the two spent a night in the same house as they usually did when going on a
journey. Wakweyika (P4) a neighbour to the deceased also testified that he
indeed saw and even talked to the accused in the deceased’s home the day
before she was found dead. The following morning the accused was not seen and
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it was at first presumed he had gone with the deceased to Kenya. Suspicion was
raised when PW realized the deceased had not taken out the goat before going
away as she usually does. It is then that he pushed the hind door which gave way
only to find his mother murdered. The accused could not be traced until 2 days
later when PW7 (Wafula Rashid) got a call to arrest him which he did after a
chase. It was the evidence of PW7’s that the accused ran into river Manafa and
failed to cross to Kenya because of the depth of the water and the high current.
The accused denied the charges and set up an alibi. He denied being in the
deceased’s home and contended that the charges are a frame up by people he
had accused of having guns in the area. They framed him to pay back for his
report to the police.
It was his evidence that after he had got problems in the village, he sold his
property and joined his sister Salifu Margaret, DW2, in Mbale to do business. That
on the material day, he was with his sister in Mbale and two days later went to
Lwakhakha to buy shop goods only to be mobbed by people calling him a thief.
They frog matched him to the police at Lwakhakha where the police accused him
of murdering the deceased.
Ms Chekwech, the learned State Attorney asked me to find that the accused is
responsible for the reason that he was seen in the home of the deceased by PW3-
PW5 as eye witnesses and on the basis of circumstantial evidence. It was her
argument that the accused was the last person to be seen with the deceased
alive. The next day the deceased is found killed in the house she shared with the
accused who had himself disappeared until he was arrested.
On the other hand Mr. Madaba, learned counsel the accused asked me to acquit
the accused on the grounds that the prosecution witnesses were not consistent.
That PW3 even told the police that he did not know who killed his mother.
Further that PW3 was contradictory in that he said he broke the front door to
access the house whereas the police officer who visited the scene testified that it
was the hind door that was used to access the body of the deceased. Counsel also
relied on the alibi which he says was confirmed by the accused’s sister DW2.
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The prosecution case is based on both direct and circumstantial. The evidence of
witnesses that say they saw and talked to the accused in the home of the
deceased is direct. While the evidence of the circumstances surrounding her
death is circumstantial.
I now examine these two threads of evidence vis a vis the defence case. It was
submitted for the accused that the evidence of the prosecution regarding the
accused’s presence in the deceased’s home was contradictory. It was pointed out
that PW3 did not tell the police that the accused was in the deceased’s home
three times the day before she died. The statement was exhibited.
During cross examination, PW3 whose police statement was exhibited, testified
that he was the first person to discover the deceased when he broke the behind
door. He went on to state that he told the police that the accused had been at the
deceased’s house but due to the panic caused by the sudden loss of his mother,
he did not state that the accused slept in the house with the deceased. He also
told the police that the accused was a suspect. The relevant part in the police
statement is that the deceased had been warned even by local leaders to avoid
associating with the accused but she could not heed advice.
The courts have held in a number of cases that grave inconsistencies unless
satisfactorily explained would usually but not necessarily result in the evidence of
a witness being rejected while minor discrepancies might be explained away by
inordinate delay before the accused was brought to trial. See. Uganda v G W
Yigga (1977) HCB 216 and Uganda v Dusman Sabuni (1981) HCB 1
In this case, PW3 explained that the panic caused by the sudden discovery of his
dead mother. He made a statement that very evening and could not reasonably
be expected in that state of mind to state all the circumstances leading to his
mother’s death. He needed to compose himself. I accept his explanation as being
true. A person who suddenly discovers his mother murdered cannot be expected
to state in writing all circumstances surrounding the death in less than two hours
after discovering the body.
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Besides, a contradiction, arises where a witness tells court a different story from
the one he/she told the police. It does not arise where a witness tells court more
than what he/she told the police. This is because a police statement is not
evidence given to prove a crime but to support a charge for a specific crime. A
conviction cannot be based on a police statement but on evidence given on oath
in court. Consequently I do not find any contradiction which goes to the root of
the case or one that would weaken the evidence of PW3.
Learned defence counsel invited court to believe the accused’s alibi that he was
never in that village on the material day and night but spent that time in Mbale
town selling in a shop owned by his sister. The prosecution relies on
circumstantial evidence to place the accused at the scene and hold him
responsible for the crime.
It is trite that when accused sets up an alibi which is a defence, such accused does
not assume any responsibility to prove the alibi. It remains the responsibility of
the prosecution to place the accused at the scene of crime by adducing evidence
to that effect. If on the consideration of the whole of the evidence it is found that
the alibi is true or that the court is left in doubt as to whether it is true or untrue,
then the court is bound to give the accused the benefit of the doubt and acquit
him. Even where the prosecution has proved the alibi to be false, the court still
has to consider if the evidence adduced proves the case beyond reasonable doubt
or not. See Uganda v Dusman Sabuni (19781) HCB 1
As circumstantial evidence, the courts have in a number of cases given guidance
on how to approach such evidence. In a case depending exclusively upon
circumstantial evidence, the court must find before deciding upon conviction
ensure that the inculpatory facts are incompatible with the innocence of the
accused and incapable of explanation upon any other reasonable hypothesis from
that of guilt.
See Simon Musoke v R [1958] EA 715.
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Further, it is necessary before drawing the inference of the accused’s guilt from
circumstantial evidence to be sure that there are no other co-existing
circumstances which would weaken or destroy the inference.
See Teper vs R (1952) AC 480 at P.489.
I warned the lady and gentleman assessors about this requirement as I do to
myself. I was asked to find that the accused was the killer because he was the last
person to be seen with the deceased. That they shared a house for a night and by
morning he was gone while the deceased was dead in the house. The accused
denied killing the deceased who he referred to as a very old woman and
attributed his troubles to the adverse reports he had made against the area
leaders for having illegal guns. He also set up an alibi.
During the testimony of the prosecution witnesses, the accused did not cross
examine them about the reports of illegal guns. The area LC also gave evidence as
PW6. He was not challenged about these grudges claimed by the accused. The
courts have held in a number of cases that an omission or neglect to challenge the
evidence in chief on a material or essential point by cross examination would lead
to the inference that the evidence is accepted subject to its being assailed as
inherently incredible or palpably untrue. See. Uganda v Dusman Sabuni (supra)
The accused’s claim that he was framed for giving information to the police can
only be an afterthought on the basis of the above principle.
Further, the accused’s sister, DW2, gave evidence to support the alibi. She stated
that she was with the accused on the material day and night and was surprised
that he was arrested for killing an old woman who is their relative. She said she
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went to attend burial and spent only five minutes at the home of the deceased.
She did not wait for the burial and did not even look at the dead body because
she wanted to see so many other people in the village.
The prosecution asked me to treat this evidence as untrue because it was queer
for somebody to travel to the village to bury a relative and chooses to spend only
five minutes at the funeral home before going off without even looking at the
body.
I should observe here that the accused is related to the deceased through
marriage. The accused’s former wife with whom he has four children is a
granddaughter of the deceased. The accused’s sister went to attend burial as an
in law. Her evidence that she spent only five minutes at the home of the deceased
is incredible and untrue.
The accused in his evidence stated that while in Lwakhakha trading centre on a
shopping trip, he was all of a sudden arrested by a mob that called him a thief and
frog matched him to the police. At the police, he was informed he was the one
that killed the deceased. This defence is also incredible. How a mob would
suddenly arrest a person calling him a thief and shortly the police refer to him as
the killer stretches my imagination too far. When this defence is assessed with the
prosecution evidence regarding the accused’s being seen at the deceased’s
house, spending there a night, disappearing the following day and running away
into a river before his arrest, I find that the accused and his sister’s version of
events is unbelievable. The prosecution evidence regarding his presence in the
village that day and night is credible. The fact that he was the last person to be
seen with the deceased alive constitutes inculpatory facts which are incompatible
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with the innocence of the accused. These facts are incapable of explanation on
any other reasonable hypothesis other than guilt.
After careful consideration of the evidence for both sides, I am in agreement with
the lady and gentleman assessors that the prosecution has not only placed the
accused at the scene of crime but also proved through circumstantial evidence
that he is the killer.
The defence version can only be a lie and an afterthought. The prosecution has
proved the case against the accused beyond reasonable doubt. I find him guilty of
murder and convict him accordingly.
...................................
Lawrence Gidudu
JUDGE
19,Sept, 2014