THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT PALLISA

HCT-04-CR-SC-0101-2011

UGANDA……………..…………………………………………PROSECUTOR

VERSUS

A.1 NALUKOBA MUZAMIRU

A.2 MALITO ROBERT

A.3 NAGULU JOSEPH…………………………………….…….ACCUSED

BEFORE: THE HON. JUSTICE STEPHEN MUSOTA

JUDGMENT

The three accused persons are indicted for murder contrary to sections 188 and 189 of the Penal Code Act.  Prosecution alleges that A.1 Nalukoba Muzamiru aliasKowa, A.3 Malijo Robert andA.4 Nagulu Joseph and others still at large on the 24^th day of March 2011 at Buwunga village in Budaka District murdered Namubiru Asumati.

Each of the accused persons denied the offence.  This cast the burden of proving the guilt of each of the accused persons as required by the law onto the prosecution i.e. beyond any reasonable doubt.  This burden and standard of proof lies on the prosecution throughout the trial.  At no one time does it shift to the defence.

In a trial for murder like the instant one, prosecution has to prove that:

1. A human being was killed.
2. The killing was unlawful.
3. The killing was with malice aforethought and
4. Each of the accused persons participated.

I will deal with each of the ingredients separately starting with the first one.

1. Whether a human being was killed.

Both prosecution and defence did not dispute this fact.  And from the evidence adduced by both prosecution and defence witnesses it is abundantly clear that Namubiru Asumati, died on 24.3.2011.    Her body was seen by all the witnesses before it was taken away for postmortem by police.

I am therefore satisfied that a human being was indeed killed.

1. Whether the killing was unlawful

From the postmortem report which was admitted during the preliminary hearing and marked Exhibit PE.I there is no doubt that this was a homicide.  Both prosecution and defence agreed that this killing was unlawful.  It is trite law that all homicides are presumed unlawful unless found excusable or accidental.

From the evidence on both sides of the case, there is no suggestion that this death was either accidental or excusable.  The unfortunate girl was medically found to have been strangled to death after being defiled.  I will find that the death of Namubiru Asumati was unlawful.

1. Whether the death was caused with malice aforethought.

According to Exhibit PE.1 made by the police surgeon Dr. Rubanza, the body was found with feacal matter around the thighs.  It had semen around the private parts.  It had marks of violence in the form of bruises around the face and a fracture of the occipital borne.  Other bruises were found on the trunk.  The cause of death is given as spinal shock, coupled with head injury due to manual strangulation.  There was a blunt injury on the head as well. All signs were that there was a struggle before the murder.  This piece of evidence brings out all the essentials in S.191 of the Penal Code Act to indicate that whoever caused the death of the deceased had malice aforethought.  Whoever did this knew that his/her actions would cause the death of the deceased.  This ingredient has also been proved beyond any reasonable doubt.  Both learned counsel for the defence and prosecution concede to this.

1. Participation of the accused

This is the only contentious ingredient.

In his submission Mr. Wamimbi learned defence counsel disputed participation of all the three accused persons because the evidence of PW.2 Mutanda Masudi is not reliable.  PW.2 was the person last seen with the deceased but he did not report to anybody after being threatened by A.1.  Secondly that there are many versions of who killed the deceased because the father PW.3 believes PW.2 killed his daughter.  Further that since PW.2 was a single identifying witness in difficult circumstances yet he saw the assailant for a very short time, he could not properly identify the A.1.  That even if PW.2 told the truth he could be mistaken.  Finally that the accused’s respective defences of alibi were not disproved by prosecution evidence.

Mr. Walugembethe learned Resident State Attorney submitted to the contrary.

After a careful evaluation of the evidence for the prosecution and defence and relating the same to the respective submissions, I am inclined to find that this case rests entirely on the evidence of a single identifying witness.

It was held in the case of Frank Ndahebe v. Uganda Cr. App.2/93 (SC) that:

“…..in a case resting entirely on identification the court has a duty to satisfy itself that in the circumstances of the case it is safe to act on such evidence which must be free from mistake or error on the part of the identifying witness or witnesses.  The evidence of such witnesses must be tested as to its truthfulness and any possibility of a mistake or error excluded.  Where conditions for correct identification are favourable such task will be easier.  But where the conditions are difficult it would be unsafe to convict in the absence of some evidence connecting the accused with the offence.”

I am of the view that the evidence of identification in this case met the required standard in respect of A.1 Nalukoba Muzamiru.

As submitted by the learned Resident State Attorney and from the prosecution evidence, PW.2 identified A.1 as the person who surprisingly intruded where they were standing with the deceased at 7:30p.m on the fateful day.  7:30p.m is twilight and therefore not yet dark to prevent easy identification.

PW.2 knew A.1 before and he was not far away from him.  The identification took 2 minutes. When PW.2 asked A.1 what he wanted he never talked back but instead pulled out a knife/panga.  This scared PW.2 who fled leaving behind the deceased and A.1.  It is therefore not true as submitted by Mr. Wamimbi that it was PW.2 who was last seen with the deceased.  Coincidentally the deceased was never seen alive again.  The only inference is that he (A.1) participated in her killing.  The evidence by PW.2 was consistent and believable.  It was corroborated by the recovery of the red jumper (T-shirt) Exhibit PE.4 from A.1’s house.  PW.2’s description of this T-shirt tallied with what was recovered from A.1’s house.

PW.2 said it was the same T-shirt/jumper the accused was wearing when he confronted him with the deceased.

The evidence of PW.2 is further corroborated by that of the investigating officer PW.4 No.29084 D/C Magala who after investigation and getting information from an informant, who implicated A.1 among the assailants he conducted a search in A.1’s house where he found the T-shirt which PW.2 described as the one A.1 was wearing when he confronted them.  I am satisfied beyond doubt that A.1 participated in killing the deceased.  The possible motive could have been rivalry. 

As regards A.3 and A.4, there is no direct or circumstantial evidence to link them to this murder.  Infact prosecution fell short of admitting that they failed to prove the case against A.3 and A.4 beyond any reasonable doubt.

The respective defences of alibi by both A.3 and A.4 were not disproved by prosecution evidence.  A.3 was not at the scene of crime for he spent the whole day harvesting water melon and when he came back home, he did not leave until the next day.  This was confirmed by his wife DW.4 Gertrude Naigino.  This lady appeared truthful.  She also supported the defence of A.4 that he was arrested because he took food to A.3.  There was no justification for the arrest of either A.3 and A.4.

Prosecution has therefore not proved the guilt of A.3 Malijo Robert and A.4 Nagulu Joseph beyond any reasonable doubt.

In their opinion the gentlemen assessors have advised me to convict A.1 Nalukoba Muzamiru but acquit A.3 and A.4 for lack of evidence.

I agree with the opinion of the gentlemen assessors.

Consequently I will find A.1 Nalukoba Muzamiru guilty and convict him for murder contrary to sections 188 and 189 of the Penal Code Act.  However both A.3 and A.4 are acquitted.

Musota Stephen

JUDGE

23.4.2012

Resident State Attorney:

We have no record for the convict.  He is a first offender.  The convict has been on remand for one year.  He was convicted of a serious offence in view of the sentence of suffering death.  The circumstances under which the offence was committed should be considered.  The convict was an uncle to the deceased.  He was obliged to protect and care for her.  He turned around and killed her after ravaging her.  The deceased was a young girl of about 16 years.  She had a whole life ahead.  Her life was cut prematurely.  The life cannot be replaced.  She will be missed by loved ones.  We submit offences of this nature are rampant.  The eyes of public are looking at this court.  The activities of likes of accused be clamped down.  We pray for a punitive sentence.

Okiror:

The convict has told me he is a first offender.  He has no record.  He is remorseful for all the acts he did.  I implore court to consider the remand period.  He is a young man whose future is bright.  The convict has a wife and children and sole bread winner.  So I ask court to give a lenient sentence.

Sentence and reasons:

While sentencing the convict I will consider the submissions on both sides.  I will consider that he is a first offender as well as the time sent on remand.  I will adopt the submission by the state while asking for a deterrent sentence in the circumstances.  A young girl lost life for no apparent reason. She was a victim of primitive behavior by village boys like the convict.  The convict deserves a deterrent sentence but less than the maximum given that he is a young man who may reform.

He is sentenced to 20 years imprisonment.

Right of appeal explained.

Musota Stephen

JUDGE

23.4.2012