Uganda v Abura (Criminal Session 77 of 2023) [2024] UGHCCRD 38 (29 April 2024)

### THE REPUBLIC OF UGANDA.

IN THE HGH COURT OF UGANDA HOLDEN AT KAMPALA.

### HCT-00-CR-SC-0077-2023

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UGANDA =======================PROSECUTION.

#### **VERSUS**

IP ABURA EMMANUEL WILSON============ACCUSED.

#### BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC.

### JUDGMENT.

IP Abura Emmanuel Wilson herein after referred to as the accused was indicted for murder contrary to sections 188 and 189 of the Penal Code Act, laws of Uganda.

It was alleged that the accused person on the 6<sup>th</sup> day of November 2021 at Naalva Housing Estates Namugongo Division, Kiira Municipality in the Wakiso District with malice aforethought unlawfully caused the death of Namawejje Patience.

Accused pleaded not guilty.

Ms Barbra Kyomugisha Senior State Attorney appeared for the prosecution while learned Counsel Mugisha Collins appeared for accused person on private brief.

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Ms. Jackline Nabuufu and Mr. Ben Muhwezi assisted court as assessors. $20$

### **Legal Principles:**

In criminal law, an accused person is presumed to be innocent until proven

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**guilty or until he or she pleads guilty, It is their constitutional right under** 25 Article 28 (3) (a) of the 1995 Contitution as amended.

The burden of proof squarely rests on the prosecution to prove the guilt of the accused person. This was laid down in the case of **Woolmigton Vs** DPP, (1935) A. C. 462

The standard of proof is very high. All the essential ingredients of the 30 offence must be proved beyond reasonable doubt.

Under Sections 188 and 189 of the Penal Code Act, the essential ingredients that the prosecution has to prove in the instant case are the following:

- 1. That there was death of a person. 35 - 2. That the cause of death was unlawful. - 3. That there was malice aforethought. - 4. That the accused participated in the murder.

Failure to prove one of the essential ingredients leads to an acquittal.

plan the murder or by circumstantial evidence.

Participation of an accused in any case is proved by evidence showing that

the accused did an overt act in taking part in the commission of the offence.

**Evidence can be either:** 1. Direct evidence which is evidence of a fact based on a witness' personal knowledge of that fact acquired by means of the witness' senses to wit: eyesight, that he or she saw the accused

commit the offence, hearing, that he or she heard the accused

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2. Circumstantial evidence is evidence of facts that the court can draw conclusions from. In other words, it is indirect evidence that does not on the face of it prove a fact in issue but gives rise to logical inference that a fact exists. It should point to the guilt of the accused person after considering all circumstances leaving no doubt as to his involvement or participation.

Facts that are not contentious can be admitted without hearing the testimomy of witnesses who participated in gathering those facts like 55 medical evidence, forensic evidence.

In this case, both the accused, the learned senior state Attorney and the learned defence counsel filed a memorandum of agreed facts that were admitted and marked as follows: PF48, the post mortem report for Namawejje Patience Mukisa which was marked as PE1, PF24, the medical $60$ examination for IP Abura Emmanuel Wilson was marked PE2, Scenes of Crime Officers report dated 10<sup>th</sup> November 2021 was marked PE3.

Under exhibits, statement of the accused person dated 9<sup>th</sup> November 2021 was marked as PF4.

From the agreed facts, the prosecution and the defence are not disputing 65 the first ingredients of murder, that is death of the person and that death was caused by some unlawful act, that is by hanging as the deceased was found with a police lanyard tied very tightly around her neck tied on a nail on a wooden frame of the door inside the house.

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This leaves court with only two contentious ingredients and therefore two issues to resolve. 75

- 1. Whether there was malice aforethought. - 2. Whether the accused participated in causing death of the deceased.

I will start with the ingredient of malice aforethought.

Malice aforethought that the prosecution has to prove is described under 80 section 191 of the Penal Code Act as follows:

"Malice aforethought is deemed to have been established by evidence *providing either of the following circumstsances:*

- a) An intention to cause the death of any person whether such a person is the person actually killed or not. Or - **b)** Knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused."

Malice aforethought from the above description is a mental element which may be difficult to prove by direct evidence but can be deduced from the circumstances of the case.

In the case of R V Tubere s/o Ochen (1945) 12 EACA 63, the court set out circumstances which the trial court should consider in deciding wether there was malice aforethought in the killing of a person.

These are; the type of weapon used, the nature of injuries inflicted, the part of the body affected, and the conduct of the attacker before and after the attack.

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PW5 Corporal No.40370, D/CPL Olupot Emmanuel was the scene of crime officer (soco) and his report, under the caption of "Scene of crime officer's report as regards to suspected murder by hanging to the prejudice of one Namawejje Patience Mukisa, F/J aged 9 years Vide Kiira DIV. DEF. 006/2021" was among the agreed facts marked PE3.

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He went to the scene on the 6<sup>th</sup> of November 2021 between 8:00-9:30 pm. 105 He took photographs that appear from pages 4-10 of his report at the scene of the house that was occupied by the deceased and the accused's family.

On page 4 and 5 there's a photograph of the deceased hanging with her feet touching the floor and the crime scene that was in the sitting room 110 had organized property. At Page 6 he observed a curtain nail were the deceased was hanged using a lanyard close to the main door.

The lanyard was tightly squeezed around the deceased's neck, with an opened mouth and with the tongue out bitten. The deceased had excreted both urine and feaces on the body and the panty respectively.

On page 7 at the top, he observed the body hanging at the height of 220cm from the nail to the ground. The deceased's height was indicated to be 140cm whereas the lanyard to the neck area was about 88cm. He observed among his findings that there are only 2 families staying in the residence

- above, that is IP Abura Emmanuel Wilson and that of CPL Mwondha Joel. 120 The residence has two access points that is the kitchen door and sitting room door, each of these accesses are allotted to the respective families that is, IP Abura had the Kitchen access whereas CPL Mwondha got the sitting room access. - He measured the point of hanging of the deceased at the height of 220 cm 125 from the curtain nail and commented that given the height of the

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deceased, it is impossible to believe that she could reach to that height without the aid of any object given her height of 140 cm. This therefore leaves one wondering on how she could hang herself without such aids by her side.

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He also observed on page 8 that the nearby objects by her side at a distance of 32cm to her legs, to which 4 jerrycans of 5 litres and having drinking water were not poured or disorganized. It could have been possible for such water to get poured down during the course of struggling for death. The photograph was taken to that effect.

He also observed on page 9, that there is a possibility of the assailant locking the sitting room door from outside and throwing the keys back to the room through the louvre glass of the window near the door which had a louvre already removed.

That the keys were said to have been at the fridge at the extreme corner 140 of the room but found at a point labelled as per the photograph on page 9.

He also observed, that the lanyard was not at the position of hanging as it was hanged on the wall between the kitchen and the sitting room at a higher distance of about 230cm, making it also impossible to pick for use without using any object to stand on.

On page 10 of Exhibit marked PE3, the SOCO observed that the deceased's legs could feel the floor implying that not all her weight was being shouldered by such a curtain nail. He took several photographs of the deceased before removing her from the hanging position.

In conclusion, he stated that given such circumstances on the height of 150 the deceased, curtain nail, and initial position of the lanyard height, the absence of nearby objects to stand on/aid her to climb up, the possibility

of throwing back the keys inside from outside as found on the window area on the floor, the objects near the body remaining organized, I highly suspect the death to perharps be aided suicide (external force on the deceased person). However latent finger marks could not be lifted as the scene had been tampered with.

From the above report the Soco ruled out suicide by the deceased. This was corroborated with the evidence of PW6 CPL MWODHA JOEL who informed court inter alia, that where his lanyard was hanged, the deceased could not access it without climbing and that the house was very organized when they found the child hanging. He said he did not touch the deceased with his wife but just reported to police.

He described that she was hanging on a small nail for the curtain on the door frame with a lanyard in her neck, and the legs were touching the 165 ground from the toes.

This witness was one of the very first people to discover the child hanging.

PW8 D/AIP Ochom Dennis, went to the scene of crime with the Soco (PW5) and went to the house, room 311 in Naalya which was occupied by both Emmanuel Wilson and Mwondha. Upon arrival they found many people 170 including the OC of Nalya Police Station, neighbours, relatives of the deceased and the family of Abura. And when they reached there, they found the actual scene of the crime was in the sitting room where the crime scene was preserved as everything in the house was organized.

However the main door to the sitting room was open. He saw a girl of about 175 9 years hanging on the police lanyard by the door side. The lanyard was tied on the nail which is used for hanging curtains. He together with the Soco PW5 took the measurement of that distance and found that it was about 220 cm. That is the distance from the floor to the nail and the height

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height

of the deceased was 140cm. He personally removed the body from the nail. 180 When court asked him for clarification whether the body was hanging, because people who commit suicide do not step on the ground, his response was that the legs were touching the floor. When he was asked to describe that position whether she was hanging or touching the floor, his response was, "I would say she was not hanging, she was standing on the 185 floor, so we removed the body and I examined the body with the Soco."

He further clarified to court that normally with suicide cases, there must always be either a chair or a stool where someone can climb, tie a rope or whatever and then at the time of releasing they have to kick that chair or stool around the place. But in this case that aspect was not there. His evidence also ruled out suicide by the 9 year old child.

PW1. Takali Lydia Sylivia who is the mother to the deceased informed court inter alia that she knew the accused as a housemate in Nalya estate were they were sharing the same house with her husband who was a police officer (PW6 CPL Mwondha Joel). The accused was occupying part of the house while they were occupying one bedroom and sitting room.

She narrated that she left her child at home doing homework between 5:30pm to 5:40pm only to return and find her house locked and the child was hanging from inside at the door on a curtain nail.

She strongly suspected the accused because she left the accused in the 200 house and on her return she saw him walking away from home.

From the prosecution evidence in the postmortem report, Exhibit PE1 and the Scene of crime report PE3, the lanyard was so tightly tied around the neck stopping the supply of oxygen leading to death and according to the evidence of the prosecution the circumstances ruled out suicide.

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he Defer The Defence through DW2, Adeke Esther 16 years old and a daughter to the accused informed court that her father left home after lunch but she did not know the exact time. That while watching T. V, they heard utensils falling from their neighbour's room but they did not mind. That after some time the father of the deceased came back and when she saw him she 210 entered inside. That after she found the mother of the deceased trying to enter through the window but she could not manage. She then climbed through the window and she entered inside. That she went inside and saw the rope on the deceased's neck and that she remembered seeing plastic chairs near her and they had fallen, and the utensils had also fallen down. 215 She opened the door and the mother of the deceased opened the other door. She informed court that the mother checked the body and said that she was still hot and wanted to take her to the hospital, that her feet went down but the father told her to leave her since she was already dead. The father went to police. 220

She informed court that at first it was only her, the father of the deceased and her sibling. Then the neighbours came and found the deceased with her feet stepping down and said that it could not be suicide and that the girl was killed.

During cross examination, she stated among other things that they were 225 six people in their house and before her father left, they were seven. That her father left immediately after lunch. That she saw the deceased's mother going out but she did not know what time. The mother of the deceased went with the baby and left Namawejje in the sitting room. DW2 said that she did not see the deceased that day until after she had died. 230 She also informed court that she did not recall who went out first, whether it was the deceased's mother or her father.

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She also informed court that her father did not go to work that day. That she went through the window in the room where the deceased was and

picked the key and opened the door. She said the deceased was on the 235 main door where they draw the curtain and she was standing near her.

She described that the deceased was not stepping down. According to her, the mother of the deceased lied about it because she tried to remove the rope to take her to the hospital and the father stopped her.

- DW2 said that the photo was taken after the mother arranged the house 240 and she organized the plates and the chairs as well while she was crying. That it was DW2, her sister Esther, Catherine, mama Patience and Tata Patience who were present. That the mother of the deceased organized the room first, went out and then started crying. - On re-examination, she informed the court that the plates had fallen down. 245

DW3, Catherine Alaku, 23 years old and a daughter to the the accused, testified that she knew the deceased and on 6<sup>th</sup> November, 2021 she was at home with her mum and dad, then her mum left for the saloon with her sister.

That she was doing her usual cleaning with her sisters and around lunch 250 time (1:30pm) after their lunch, the father left them at home.

As they were in the room watching T. V, around evening hours, they heard sounds from the neighbour's house but they continued watching. After about 20-30 minutes later, she testified, they heard Tata Patience knocking at the door calling Patience to open the door. He picked his phone and moved outside the gate and mama Patience came calling out for Patience, then she called me after. That the deceased's mother took her to their side of the window which had glass, opened the window and told her to call.


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They saw the deceased through the window but she was not responding. Mama Patience then went to their side but she couldn't pass through the window. That she requested them to open the small window that had a plywood on their side. She decided to break it and tried to enter but could not go through.

Esther (DW2) agreed to enter and help her and she found the door closed and the key attached to the door of the corridor. That mama Patience came 265 in and went direct to the child, touched her and said she was still alive. That she unhanged her but Taata Patience came in and told her to put her back where she was because she was already dead.

That they found the chairs had scattered and the mother organized the room, they had a pink chair containing clothes, the clothes were outside and water had also poured on the floor.

She informed court that mama Patience made alarms that her child had died and she organized everything in the house before she made the alarm. The neighbours came to the scene.

- At cross examination, DW3 stated that she was at home that day, washed 275 clothes and cooked lunch. That she saw the deceased go to the toilet but she didn't look happy and was crying. That the accused left home shortly after at around 1:30 pm. She stated that she saw the deceased's mother leaving and it was in the evening after her dad had left. - About 20-30 minutes after the deceased's mother had left, she saw the 280 deceased's father coming in. When he knocked at the door, she came outside. Mwondha came in with his car and parked there, then came inside the gate, he went to their side and started knocking and there was no response. She watched everything from their kitchen. She saw him on the phone and shortly after the wife came back. 285

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She informed court that the deceased's mother was cleaning the room while saying she didn't know what she was going to do and that by the time the police came the room was dry. She said she couldn't confirm if the mother was more concerned about cleaning and organizing the room than the death of her own child.

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In re-examination, she stated that the deceased's feet were hanging up and after untying her they were on the floor. After the mother put her back, they were still on the ground.

From the evidence above, this court finds that the prosecution evidence was very consistent and corroborative on the issue of the position of the 295 child at the time she was found dead. She had lanyard around her neck and her feet were touching the floor.


The defence witnesses, put up a story that is unbelievable about the conduct of the mother. There is no way a mother could arrange the room, mop it and then go out to raise an alarm or cry given the fact that she had left her child alive and finds her dead in less than 20 to 30 minutes.

The way the lanyard was so tight, if it was to be removed, there was no way the mother could have attempted to remove it without cutting it.

This court would have believed if she attempeted to remove by cutting it.

I have no doubt in the evidence of PW1, PW2, PW5, PW6 and PW8 who 305 observed the deceased's feet touching the floor and found the room very organized.

The defence witnesses even contradicted themselves when they testified in chambers about the height at which the legs of the deceased were.

One gave the impression that she was really hanging while the other gave a very different description. Their evidence was with bias given the fact that the accused is their father.

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The circumstantial evidence as adduced by PW5 the SOCO, ruled out suicide.

It is common knowledge that for a person to die as a result of hanging, the 315 body must be suspended. The deceased in this case was not suspended but her toes were touching the ground.

The narration of the two defence witnesses did not convince court as no sane mother could find her child in such a state and arrange the room, mop and then come out later to raise an alarm as though it was an arranged suicide and or dramatic scene.

This court stongly believes from anlysis of the circumstantial evidence, that a child of 9 years would not conceive an idea of getting a lanyard which is rarely used for committing suicide unlike a rope and hang herself from a small nail on the door frame. Court is convinced that there was some external force that tied the lanyard around her neck tightly and purported to hang her on the nail leading to her death.

I am therefore convinced beyond reasonable doubt that the deceased a small child of 9 years who was left home doing her home work had no reason to commit suicide by hanging herself, using the lanyard of all things which Lanyard was not even within her reach according to the findings of the SOCO.

Her full weight could not be supported on a small door nail.

No wonder she was in a standing position.

Needless to say, it is the finding of this court that whoever caused her 335 death by tightly tying the lanyard around her neck and then tying it on the nail had the pre requisite malice afore thought.

This takes me to the last ingredient of participation.

WHETHER IT WAS THE ACCUSED WHO CAUSED THE DEATH OF THE DECEASED CHILD. 340

This was the most contentious ingredient.

To prove participation, the prosecution should adduce credible direct or circumstantial evidence placing the accused at the scene of the crime as an active participant in the commission of the offence.

In this case there is no direct evidence. Nobody saw the accused hang the 345 deceased.

The prosecution is basically relying on circumstantial evidence which is evidence of facts that the court can draw conclusions from.

In the case of Bogere Moses and Anor Versus Uganda SCCA No.1 of 1997, the Supreme Court held that:

"Putting an accused person at the scene of crime means proof to the required standard that the accused was at the scene of the crime at the material time. To hold that such proof has been achieved, the court must base itself upon the evaluation of evidence as a whole. Where the prosecution adduces evidence that the accused was at the scene of the crime, and the defence not only denies it but also adduces evidence showing that the accused was elsewhere at the material time, it is incumbent upon the court to evaluate both versions judiciously and give reasons why one and not the other version is accepted. It is a misdirection

to accept the one version and then hold that because of that acceptance per se, the other version is unsustainable"

It should be noted however, that the prosecution has the burden of disproving an alibi raised by an accused person. This is done by adducing direct or circumstantial evidence and placing the accused at the scene as the perpetrator of the offence.

This court has to determine whether the accused has been placed at the scene of the crime and caused the death of the deceased child since the finding of this court is that prosecution evidence ruled out suicide following the legal principle as stated in the **Bogere** case above.

- PW1 Takali Lydia Sylivia the mother to the deceased who knew the 370 accused very well as a house mate, narrated that she left her child home doing homework between 5:30pm to 5:40pm only to return and find her house locked and the child was hanging from inside at the door on a curtain nail. This was now towards 6 pm. - She strongly suspected the accused because she left the accused in the 375 house and on her return, she saw him walking away from home. That they also had a very bad relationship with him as neighbours which fact is not contested by the defence. Their relationship was extremely bad leading to involvement by the administration to try to mediate between them. - Her evidence was corroborated by that of her husband PW6 CPL 380 MWONDHA JOEL who comfirmed they shared the house and as he returned he saw the accused move out of the gate. Nobody opened for him until his wife returned shortly after. He informed court that they had a very bad relationship with the accused and that is the very reason they suspected the accused. 385

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PW7 Inspector Baale John, shared a house with the accused at Naalya estate from 2018-2021. When he left, then Mwondha moved in. The relevant part of his testimony was about the character of the accused. He stated that he left the house and was given another one when the accused tried to kill him.

His suspicion that he was the one who killed the deceased was based on his own experience with the accused as a very dangerous neighbor.

According to PW5 the SOCO, there was only one entry into the premises which rules out another outsider to have sneeked in and committed the heinous cruel act against the deceased.

#### The defence case.

The accused denied the charge and alleged he was away from home at the material time the child was discovered hanging.

He gave his statement in defence on oath where he confirmed that he knew the deceased as a daughter of his neighbor, CPL Mwondha Joel and that on 6<sup>th</sup> November 2021, he left home in the afternoon and went to Nalva trading center to a bar operated by one Asiimwe Edith. He said he didnt check on the time but it was around 4:00pm. At around 7:00pm he received a phone call from one SSP Nambafu Micheal who asked him where he was and advised him to call home and find out what was happening. That when he called home, his daughter called Catherine informed him that the neighbour's daughter had hanged herself. When he called Nambafu back, he told him that I warned you to be peaceful in the house and now this will be put on you.

That he got scared and asked him how it can be put on him when he was not at home. That he advised him to go home being an officer but he was scared so he did not go.

He was informed by his wife that when she tried to go and sympathize with the mother of the deceased, Mwondha wanted to beat her. So the wife advised him not to go back home because people were violent. So he went to Naaalva Police post where he spent a night. But in the morning as he was waiting for the police to escort him home he was told he was under arrest and eventually brought to court.

He admitted they had misunderstandings around November 2020, over water because they were paying individually and when he reported the 420 matter to afande Edezu Richard in charge of engineering who in turn instructed SSP Nambafu to intervene and Mwondha was told to remove his children, he took it in bad faith.

He said that on that fateful day he was feeling unwell, and was processing to change his implant in his right hip. So he was not normal and stayed at 425 home. So when I was charged with murder, I wondered how a person like me could commit murder.

While under cross examination, among others he stated, he left home after lunch around 4:00 pm which was just approximate. When they read to him the charge and caution statement where he stated that he left home around 1800 hours which is 6:00pm. He confirmed leaving home at around 1800 hours. His statement was admitted in evidence as PE4.

He informed court that he was at home but he did not see any of his neighbour's children including the deceased. He said that there was no way he could see what was happening in the sitting room because they were

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separated by a wall. He further said that he could hear if something was loud from the neighbour's room.

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In re examination, he said that he takes it that he left home at 1800hours (6:00pm) and he could move and work at that time.

DW2, Adeke Esther 16 years old and a daughter to the accused informed 440 court that her father left home after lunch but she did not know the exact time

At cross examination she stated among other things that they were six people in their house and before her father left they were seven. That her father left immediately after lunch. That she saw the deceased's mother going out but she did not know what time. The mother of the deceased went with the baby and left Namawejje in the sitting room. DW2 said that she did not see the deceased that day until after she had died. She also informed court that she did not recall who went out first, whether it was the deceased's mother or her father.

She also informed court that her father did not go to work that day.

DW3, Catherine Alaku, 23 years old and a daughter to the accused, testified that she knew the deceased and on 6<sup>th</sup> November, 2021 she was at home with her mum and dad, then her mum left for the saloon with her sister.

That she was doing her usual cleaning with her sisters and around lunch time (1:30pm) after their lunch, the father left them at home.

During cross examination, DW3 stated that she was at home that day, washed clothes and cooked lunch. That she saw the deceased go to the toilet but she didn't look happy and was crying. That the accused left home shortly after at around 1:30 pm.

She stated that she saw the deceased's mother leaving and it was in the evening after her dad had left.

About 20-30 minutes after the mother had left, she saw the deceased's father coming in. When he knocked at the door, she came outside. 465 Mwondha came in with his car and parked there, then came inside the gate, he went to their side of the house and started knocking but there was no response. She watched everything from their kitchen. She saw him on the phone and shortly after the wife came back.

From the evidence above, both for the prosecution and the defence, it is 470 apparent that the accused was in the house before the mother of the deceased left her daughter behind.

It is not true that the accused left home after lunch.

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It is also very clear that at the time CPL Mwodha came back home, he saw the accused leave the house and as he was walking away, PW1 also saw 475 him. This was shortly before the life less body of a child who had just been left doing her home work was discovered dead hanging on the nail of a wooden frame.

She was not hanging on some thing strong like the ventilation but on a nail on the doorframe. 480

Prosecution Evidence put the accused at the scene of crime much as he attempted to lie to court that he was away at a bar shortly after lunch. His alibi was destroyed by his own police statement that was recorded shortly after the incident.

His witness DW3 Catherine his daughter, lied to court by stating that her 485 father the accused, went away at about 1:30 pm after lunch contradicting

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herself with her own father who admitted the time he left home was around 18:00 hours when the crime is alleged to have been committed.

This court is aware that the burden of proof rests on the prosecution through out the trial including evidence to disprove the alibi put up by the accused.

This court also knows that 6:00 pm is very different from 1:30 pm.

It is also general knowledge that by 6:00 pm, light is very sufficient as it is not yet dark. PW1 and PW6 clearly saw the accused leave their shared premises shortly before the child was discovered dead.

He was therefore placed at the scene of the crime.

Another question that this court has to deal with is whether he is the one who killed the child using the lanyard and thereafter purported to hang her on the nail.

It is trite law that suspicion however strong it might be can never be a basis 500 of conviction and so is the weakness of the defence. See (Sekitoleko Vs **Uganda [1967] EA. 531)**

This principle of the law however stands where there is no direct or circumstantial evidence at all in support of the charge.

It is also trite law that deliberate lies can be used to cover up facts and once 505 it is proved that the lies were intended to cover up facts, then such circumstantial evidence points towards establishment that a fact exists from which an inference of guilt can be made.

From the evidence of the prosecution witnesses, it is clear that none of them witnessed the killing of the deceased child. It follows then that the 510 prosecution relied solely on circumstantial evidence. This court is

persuaded by the decision of the Supreme Court of Nigeria seating at Abuja in the case of Tajudeen Lliyasu versus The State SC 241/2013 which considered circumstantial evidence in detail. It held that: "circumstantial **evidence is evidence of surrounding circumstances which by undersigned** 515 coinscidence, is capable of proving a proposition with accuracy of mathematics...this is so far in their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person. Simply put it meant that there are 520 circumstances which are accepted so as to make a complete and unbroken chain of evidence. Such circumstantial evidence must point to only one conclusion namely that the offence had been commited and that it was the accused person who commited it."

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The accused in this case was seen walking away from the scene of the 525 crime. When he discovered that he was the obvious suspect, he never went back home, but reported himself to the police much as he claims it was for his security.

In the case of Uganda verses Yowana Baptist Kabandize (1982) HCB 93 The court held that: 530

"Conduct of the accused immediately after the death of the deceased of running away from the scene of crime and of being in restless mood in the swamp clearly showed a guilty mind "

The facts in this case are very similar to those in Kabandize case in as far as restlessness of the accused is concerned. He could not go back to his 535 residence.

The accused also attempted to put up an alibi that he was not at the scene of crime shortly before the child was killed which alibi was destroyed by

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way of cross examination. He eventually conceded that he left home at around 18:00 Hours after the child was killed.

His conduct was not the conduct of an innocent person.

In view of the fact that there was no stranger in the premises and the accused was seen leaving home by the parents of the deceased only to find their child strangled and hanged on a nail with the legs touching the ground, there was no other assailant other than the accused who meticulously killed the child and threw the keys through the broken louvres.

His cruel hatred for the children of the house mate and resentment of sharing the house with another police officer given the fact that he had a big family of 7 people took a heavy toll on his faculty of consciousness and thoughts where he ended up killing an innocent defenceless child.

He attempted to use his physical disability, but court observed that he has able hands and with the support of his clutches, he could ably hurt a small child of 9 years.

- "It is trite law that where the prosecution case depends solely on 555 circumstantial evidence, the court must, before deciding on conviction find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty". - This was the holding of the Supreme court in the case of **Byaruhanga** 560 Fodori Vs Uganda SCCA NO.18 OF 2002 reported in [2005] 1 U. LS2 12 at page 14.

The finding of this court is that the prosecution proved the ingredient of participation through circumstantial evidence beyond reasonable doubt.

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I have cautioned my self on the evidence before me and I am very satisfied that there are no other co-existing circumstances which would weaken or altogether destroy the inference of guilty on the accused person.

The lady and gentleman assessor advised me to convict and I don't have any cogent reasons to depart from their joint opinion.

570 In the result I reject his defence that he was not at the scene of crime at that material time and find him guilty of the offence of murder contrary to section 188 and 189 of the Penal Code Act as charged and convict him accordingly as provided under Section 83 of the Trial on Indictment Act.

Dated at Kampala this 29<sup>th</sup> Day of April 2024

Hon. Lady Justice Margaret Mutonyi. JHC.

**Criminal Division.**

585