Uganda v Agaba alias Bagonza (Criminal Session Case 49 of 1990) [1990] UGHC 23 (30 November 1990)

THE HONOURABLE MR, JUSTICE A. R SOLUADE

## THE REPUBLIC, OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

CRIMINAL SESSION CASE NO. 49 OF 1990

UGANDA I::::::::::::::::::::::::::::::;::::::;::;:::::::PROSECUTOR

VERSUS

PATRICK AGABA alias BAGONZAI::::::::::::::::::::::::::ACCUSED

BEFORE: THE HONOURABLE MR, JUSTICE I. MUKaNZA

## R\_U\_L\_I\_N\_G

The accused Patrie Agaba alias Bagonza and another who was not before the court was indicted of Murder contrary to section *^85* of the Penal Code. The particulars being that on or about the 11th day of October 1984 at Kiboota village in Kabarole District murdered one George Muhindo.

Before the' hearing of this case commenced the evidence of four witnesses on the summary of evidence was admitted at the preliminary hearing as per section 64 of the Trial on Indictment decree Decree <sup>26</sup> of 197'1\* After the admitted evidence the prosecution called the evidence of one witness (Pt.wJjO and thereafter closed its case. The learned counsel representing the accused person then made a submission of nc case to answer and hence this ruling to resolve the matter,

Mr. Mugamba submitted that the accused has got no case to answer as per the authority in the case of Ramnlal Bhaat vs <sup>R</sup> 1957 EA F. 352 and that there was no evidence adduced necessitating him to say something about the charge and prayed that he be acquitted. The learned counsel did not unfortunately elaborate on his submission as he ought to have done in the circumstance,

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The learned State Attorney conceded that they had not indeed as they ought to have done adduced evidence sufficiently enought to require the accused to be put on his defence, and he therefore fully endorsed the submission of his counterpart the learned counsel arrearing for the accused person that the accused person has got no case to answer.

It is trite law that for a submission of no case to answer to succeed the defence must show that one or more of the necessary ingredients of the offence have not been established or that the ... witnesses have been so badly discredited that no reasonable court can rely upon their testimony. See Uganda vs Katabazi Manuel 1977 HCB Fage 109.

The accused person as stated earlier on was indicted of Murder contrary to section 183 of the lenal Code. In cases of Murder the ingredient prosecution has to prove the following / . of the offence viz:-

- $(1)$ That the deceased is dead. - $(2)$ accused caused the death of the That the deceased and - (3) finally that the accused had the requisite malice aforethought as stipulated under S. 186 of the Fenal Code. That he had the intention to kill or that he knew his act or omission would probably cause death.

In the instant case the prosecution called in aid the evidence of P. W.5 Sarah Kugonza. The rest of the evidence was admitted at the preliminary hearing under Section 64 of the trial on indictment decree Decree 26 of 1971.

. . . . . . . . . . . . . /3

$\mathcal{L}$

P. W.1 Dr. Kaboyo carried out the autopsy on the body of the deceased which was identified to him by F. W.2 as that of George Muhindo the deceased. He observed/ externally that the body had a abbrasions, lacerations on the face trunk (posterior) it had a swollen right eye and conjuctival haemorrahage, and the dilated right pupil was not functioning. Internally he observed subdural heamorrhage and was of the opinion that the cause of death was due to subdural haemorrhage.

F. W.3 was in her bar selling local beer and closed the bar at around 9.30 p.m. and went to sleep. Then at around midnight he heard some/snoring loudly. She woke up her son and she went outside only to find that the deceased was lying down with her legs kicking and with help of a candle she saw that the deceased was bleeding, She the started raising an alarm which was answered by very many people. She checked on her / daughter's . room Florence Mbabazi where she had slept with her boy friend Masiko. They were not present. The deceased was taken to the Hospital where he died.

F. W.4 was a police officer and merely received the accused from a Local administration askari from the sub county Headquarters and he re arrested the same and remanded him.

F. W.5 testified that on 11th day of Uctober 1984 she was at 1. W.3's bar. In fact he had visited the latter. Then between 8.00 and 9.00 p.m. the accused came in the bar with one Masiko. The accused and Masiko went to the room of Florence Mbabazi the daughter of F. W.3 who was selling the local beer tonto. The accused and Masiko bought a small jerricane of tonto and took $\cdot$ it to Mbabazi's room. Thereafter $F_{\bullet}W_{\bullet}$ , the accused, Mbabazi and Masiko started consuming the drink.

$\ldots \ldots \ldots \ldots /4$

$\mathfrak{Z}$

While they were taking the native drink Muhindo went and joined them. The latter was <sup>a</sup> Chief and he asked for the graduated tax tickets from both the accused and one Masiko. The latter inquired from Muhindo whether chiefs work at night. The deceased got out and was followed by Masiko when they went out both Matsiko and the deceased fought. Later Masiko returned only to boast that he had killed the Chief the deceased. F. W.-5 was positive. That the accused remained in the house and never got out at all. On getting that information P. W.5, the accused, Mbabazi plus Masiko all got out and \* ran away. Latter P. W.5 plus Masiko and Mbabazi were arrested and charged with the murder of the deceased. Later herself together with Mbabazi had the murder charge withdrawn.

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According to the testimony of the sole prosecution witnesses P. V». <sup>5</sup> and the admitted evidence of P. W. <sup>1</sup> the evidence do show that the deceased is indeed and died as a result of violence having been committed against him as per the doctors postmortem examination but evidence was lacking to show that the deceased died at the hands of the the accused . P. W.5's testimony fully exonerated the accused that when Matsiko fought with the deceased outside the bar the accused never at any time went out to join in the fight.

In fact one of the ingredients of the offence that the accused caused the death of the deceased with malice aforethou ht has not been established.

In the premises I find that no prima facie case has been sufficiently made out to require the accused person to be put on his defence. S. <sup>71</sup> of the TIL. I find the accused not guilt of Murder contrary to section 183 of the Penal Code and I acquit him forwith and unless the accused is being held for another charge I order for his immediate release.

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30/11/90: Accused before court

Mr. Bireije Resident State Attorney present. Mr. Mugamba for the accused present. Assessors: Mr. Manyindo S. Mr. Kiiza present. Ruling is read & signed.

JUDGE

J0/11/90