Uganda v Byamukama and Others (Criminal Session Case 15 of 2002) [2003] UGHC 113 (14 January 2003)

Full Case Text

La '|W'i

## THE REPUBLIC OF UGANDA

IN THE HIGH CCU: T OF UGANDA AT LQILTAL. liLQILJ£5L^ UGANDA PROSECUTOR VERSUS '

1 . BYAFUKaFA FEDER]KO

2. NDYaNAX JaKES .... ACCUSED

3. 3ARYAH3IFA JOHN

BEFORE: THE HONOURA' LB. V,.. X-." ZEHURjKJZE

## JUDGEMENT

Byamukaraa Federiko, Ndyanabo James and daryahebwa John are jointly indicted with Murder Contrary to Sections 133 and. 134 of the Penal Code Act-It is alleged that the accused persons and others still at large on or about 14/3/2001 at Oburama village, Bwizi Sub-County, in ^amwenge District murdered Rwanz^a. George, The accused having denied the charge the case went on full hearing.

The Prosecution called 7 witnesses and briefly their case is as follows. Bidobozi Stephen (PVT2) is the son of the deceased. He testified to the effect that around 10.00p.m. during the night of 14/3/2001 he went out to see why the dogs were barking. He went ba cl: into the house as he failed to find out why they were barking. His father, the deceased, decided bo go out and find out himself. This witness and others hoard their father crying out and came back Being chased By some people. When he was about to enter the house he was whisked away by the attackers. Then he (PW2) flashed the torch he had and tried to follow the attackers as they led away his father. He was able to see the accused and other people. He gave up when his father said that alreadjr finished and advised not to styy around. them they need not follow him because he was

The whole family fled and when they came back in the morning. they the dead body on the lower side of the homestead. A panga and Rugahire were statement to Police in which the accused and other people. impli cated he recovered. He made a found (tyre sandals)

Rwabutontori Godfrey (PVI3) is also a son of th. deceased who was also

because police as who the attackers were. at homa in the night of 14/V2OO1. He gives almost similar account as PW2 claimed to have seen the attackers-with. the aid of the torch which PW2 had. He attackers had led his father but gave tried to follow the direction where the deceased said that they should go back up when he heard a bang and the he was already finished. xhey made an alarm but no body came. He then'went and hid among the cows from where he saw the attackers passing oy after they had killed his father. When he saw the attackers checking in their house he knew there was more trouble so ho moved from 'the cows and hid in the bush till morning. Later he told his wuncle one Rwabuganda (PW5) and

- 2 -

Kellen Katefun^a (PW4) is the widow of the deceased who was also present at the time of the attack. She said she saw her husband being pulled away as their lamp was still on. Vhen the deceased was taken she knew there was trouble. She went into hiding with the children and left PW2 and PV'J behind. She came back the following day only to find her husband dead. She was able to see £1 aiBdng the attackers.

**\*4**

• \* a' •

Like PV/2 and PWJ, the witness said that the deceased had a land case with Rwendeire the father of A1 and at this time he was in prison together *I* Mugisha, Kasina, A2 and. A3. He is the one who identified the body of the deceased to the doctor Twebazo Frederick (PWj) who carried out the post with one Bakehwa for a criminal case arising from the land case. Rwabuganda (PW5; is the brother of the deceased. 0n 15/3/2001 he received a report from PW3 that his brother was killed. He told him that they had recognised A1 , mortem examination. He found the body blood stained with multiple cut and stab wounds. The cause of death was hypovolaemic shock (this means he lost a lot of blood). The report was received and marked exhibit P. I.

> He re-arrested the accused who had been mentioned the names of A2 and A3 although A2 was with the Chairman. arrested by a homeguard. PW7 is Katabazi kahwera Gabriel, Chairman L. C. I of the area. On receiving the report on 15/3/2001 at around 9\*00a.m. went to the scene of Murder. He testified that PW2 told him that A1 No. 25711 CPL. Kyokwijuka (PW6) is a w^s among the attackers but never Policeman who visited the scene.

> > **/3**

A? never c^me to the scene at the deceased's home. Later in the d-y the family of the deceased almost killed A1 whereupon PW7 caused a letter to be written forwarding A1 to L. C. II. The letter is on record as exhibit P,5#

*-5* -

In his defence A1 stated that he learnt of the death of Rwanzaaa. at around 10.00a.m. and he went to the deceased's hone where he found PV7, the Chairman and A2-and other people and they told him that they had not got any information regarding the identity of the attackers. «at around 5p.rc\* the family of the deceased called PW7 aside and discussed things, ^hereafter he was tied, up on the ground that since his father had a case with the father of the deceased, then he was the one who had killed Rwauzana. The Chairman who had left the scene was called back and stopped- people from beating him and he was forwarded to the parish and to Police. on 15/5/2C-1

A2 .testified that he spent the night of 14/3/2001 at his hone. At around 9.0Ca.m. of 15/3/2001 while he was in his gardens working, PV17 the Chairman called him and told him that Rw. nzara had been killed. He stopped the people that killed the deceased. on suspicion that he vias one of working and went with the Chairman and Secretary General L. C. I to the deceased's home. He was arrested, on 16/J/2CO1

In cross-examination by Asiimwe, the State Attorney, he said when he mentioned as one of the attackers with lluguta and Julius. **t)** talked to the family of the deceased they told him that no body had been identified and that the Chairman (PVJ7; was lying when he said A1 was

A3 testified that on 14/3/2001 he who told him that his brother in law, a1 , had 1'cen arrested, he feared and he went back home. He was arrested the following day. In cross-examination 15/3/2001 at 2.p.m. he learnt from his wife that Rwanzffca- was dead. At around 5.00p.m. when ho was on the way to the deceased's home he met people was at home the whole night. On ■wore saying that the relatives of people who were in custody were suspected to be the killers. Has father in law was in prison and that isr«why he feared. by the learned State Attorney he explained that he feared because people

The burden of proving the guilt of the accused person rests on the

Prosecution throughout the trial and never shifts to the defence: Woolington V. D. P. P. 1935 AC 462 and Section V. Umanda 1967 EA 531. Thus an accused person, during a trial as this one, bears no duty to prove his or her innocence. He or she cannot be convicted owing to the weakness or even absence of his or her defence. A conviction is based on the strength of the Prosecution cas. The accused's guilt has to be proved beyond any reasonable doubt.

$\mathbf{l}_n$ this case of Eurder the Prosecution has to prove the following ingredients of the offence if a conviction is to be secured.

1. Death of the deceased.

2. Unlawful act or omirrion causing the Ceach of the deceased.

3. Malice aforethought.

4. Participation of the accused.

On the death of Rwanzana George, the evidence of all the Prosecution witnesses clearly proves that he is dead. Even the accused in their defence do not contest this fact. They admit that Rwanzena was killed: The post mortem report confirms the obvious. I am satisfied that the first ingredient of the offence as tabulated above has been proved leyond reasonable doubt.

As to whether the death was the result of an unlawful act once again the evidence of all the witnesses proves that fact. IW2, PW3 and PW4 vividly narrated how the deceased mot his douth. The Post Portem by PMI discloses that he died of loss of blood from the cut and stab wounds. The death was neither accidental nor authorised by law. It was by unlowful act -See Gusambizi S/O Wesonan V. R. (1943) 15 EACh 65.

On the issue of malice aforethought Court has to consider the surrounding circumstances to determine whether the evidence on record established this essential ingredient. In this regard the Court will considor the nature of injuries, the weapon used, the part of the body on which it is used and sometimes the conduct of the accused person before or after the commission of the offence. See Tubere S/O Ochen V. R. (1945) 12 EACA 63. The evidence of the Prosecution witness especially PW2, PW3 and PW4 does disclose that the attackers were bent on taking the life of the deceased. This is fortified by the evidence of PWI who found a stab wound on the right lateral aspect of

$...5$

scapula area and the front part of the chest and tw° cut wounds on the left shoulder. the neck, iho wound was extending into the media stinuro (part of the chest cavity where you find the heart and it is where the oesephogus, the gullet and the trachea pass to the stomach and lungs), There was stab wound in the left

**- 5 -**

**I**

**7**

There were serious wounds on the vulnerable parts of the body- I am satisfied that who ever inflicted these wounds intended to cause death or had knowledge that these acts would probably cause death. I find that this ingredient of the offence has also boon proved beyond reasonable doubt.

The only issue for contention is whether it is the accused persons who killed the deceased. The prosecution presented the aviconce of PW2, PWJ and PW4 in order to prove this essential ingredient of the offence.

PV2 testified to the effect that at out to find out why the dogs were barking, but could not establish the cause. As he cane back to the house his father the doco. sec' decided to go out. This witness&gt; PVJJ and PVI4 kept in the house watching. Then they heard the deceased crying out and came running to the house. This witness and PWJ went out with a torch. Ke saw his father being followed by somebody, Vhen his father tried to enter the house, the one following him pushed his father off and drove him •^aryaychwa (Aj). He also saw one- Kansimc, kugisha and Justus. He saw them by flashing the torch at the group. Ke followed then as they dr'vo away the deceased until he heard him saying that ho was already finished and that they (the family) should not stay around. All this time he was with PUJ\* Then they went into hiding. The following day whan he camo back to the scene he saw Rugahire (tyre sandals) which belonged to the said Justus. bThen he made statement to police he claims to have mentioned the three accused as those among the attackers. around 10. OOp.m. he went down the compound. PW2 flashed at the attacker ?'nd saw that it was A1. He saw other people in the compound namely Kashijwa alias Ndyunabo (a2; and persons

wi tness at the group. Ho knew all the accused before as In cross-examination, by Mr. Nyamutale Counsel for the accused, the insisted that he saw all the accused, Kansiime and Muguta because he had a torch he flashed

. .../6

villagemates. In re-examination by Hr. nsiiiwe, the State attorney, PV2 sajd

that that A1 was one of the attackers. on the. follovinr morninr i.e. *15/3/2OOI* he told his uncle P>?5,

PWJ more or less repeated what PV2 had told Court. He testified that he the attackers because of the torch light which PJ2 had. He saw A1, saw they pulled away his father. Then ho saw A2. He also back because ho was already finished, as they ran back P'J3 hid amongst the cows in the Kraal. Again he was a?-le to see all the accused persons and Julius and kansime. When these people entered, their house he sensed danger. e moved fr^m the Irani and hi- himself in the bush. The following morning he told his uncle PW5 that the accused were among the attackers. His uncle went to report to Police. PW3 mentioned the accused as among the attackers when he made statement to Police. Ro also knew all the attackers as they were villagenates. hugisha and Kansime as followed the attackers until he heard a bang and his father told them to go

P«.?4 on hearing the car-motion camo to the sitting r'oni and was able to tado ba which was in the sitting room. She saw him pulling away the deceased. see a1 by means of a

On the the night of 14/3/2001 they wore in their respective homes and they know of the incident the following day. They reason that they are merely suspected f the deceased called Ka'-alega. This resulted in an assault case which led the said Rwendeire and one -•-hkebwa to be put in prison and they in prison at the time of the murder of I.'wanzara. It appears the family of nd a2 are very close, while A3 is brother in law of ^1. The said land dispute, the fact that the father of and-another were nt the material time in prison and the relationships of the accused persons ;-re not disputed. other hand all the accused in their defence said that during because the father of rd, one Hwandeire had a land dispute with the father were still **A1 r**

The evidence of the above throe prosecution witnesses is based on the identification of the accused persons. The law is that there is need for care even where there are twn or more witnesses so long as the evidence relied on is of identification. The judge should warn himself and the

i !

- 6 - reliance that there is a possibility that a mistaken witness can be a convincing one, that even a number of such witnesses cun all hemn.stakon. The judge should then examine closely the circumstances the identification came to be made, particularly the length of tine, the distance, the light, the familiarity of the witnesses with the'accused. See ^ikbwa.\_. Cr, ^ppGaJ..lh.,\_J.7Z^ on the correct identification nr identifications. The reason for the special caution is asoGsSs rs of the special need for caution before convicting accused in IfahuLo. A-OtheTg V> Uganda 1 979 H. CB. 77.and Uganda^V^^George William

1 did warn the assessor and do also warn nysolf of the danger involved in circumstances like the present one where the attack took place at 10.00p.n. at night. In the instant case all the idefitifying witnesses were awake as a result of harking by the two dogs. 1-W2 had a torch which enabled hi who the attackers were. When the deceased cried cut on seeing the attackers and tried tc» flee from then back into the house the two witnesses got alerted and tried to co'-e out to see what was happening and at the .same time PT.f4 cane fre-r. the bed room into the sitting room. There was a tadoha in the sitting room. r-i end his brother PU5 to see

Their house did not have a door asi it is said it had always to he open so that they could easily see the cows. When the deceased wrs pulled away as ho was trying to enter the house PW4 was able to see only -a! by means of a tado ba in the sitting room whoso light reached the entrance. PW2 and PV/J were able to see the person who pulled away the deceased, asah? was about to enter the house, as A1, by means of light from a torch in ssession of Pw2. PV2 and PVJ followed the attackers for some distances as were flashing the torch against the attackers. PUJ testified that he hid the co';s and. could, see the attackers as they went to their house accused persons pn the attackers led away their father until he told them to give up. They himself among after killing the deceased. He said he wr.s able tn identify the and. others as there was sore moonlight.

**I**

■ii

**ii**

**il**

The operation appears to have taken a bit of time right from the deceased vras driven away, killed and up te the time th? attackers cane back to the

- 7 -

of the family had fled into decease^ hcw-e only to find all other members 's attackers ark! PW2 and PV? who were fol lowing hiding. The distance between the in the same compound. They them could not have been ton long since all were should just leave the place. only gave up when the deceased told then that he was finished and that they

- 8 -

*r*

all the identifying witnesses knew the accused persons before as they were villagerstes, 1 do find that all the above factors favoured correct identification. \*<L1 the identifying witnesses were consistent ns to the attackers whom they identified. PV4 genuinely identified a1 nd she never e! claimed to have seen any other person as she never tried tn follow the attackers. PW2 and. P?JJ wore consistent in their identity of the attackers. They also informed the police nf the same leading to the arrest of the accused aad others who we\* e later released fur reasons best known to the police investigators.

According to the evidence of P'/7 who went to the scene at 9.00a.m., PW2 told hir that xi1 was among the attackers. Pu? h- d cone with A2 but he said that PW2 never mentinned the name of ;12. I do believe that P'»?2 feared or lacked courage to confront *1.2* as one of the- attackers. He was the Secretary to the Chairman (Ph?) thus both members of the executive of L. C.l of the area. He could easily have jeerpudised the traumatised by the events of the previous night. It needed more courage to pin such a man in the company of his Chairman. 3 believe P'J2 Pr the tire being thought if prudent to mention /i1, although also a memK.-r of the b. C. I executive, since he w^.s not in the immediate presence of the Chairman. A2 in cr' ss-examiuation denied PV2 and H'i? a1 s one of the ei stackers. He wont on to •■•nod A1, Julius and Hugishl as among the attuckers. I do not sue why the Chairman (PW?) should have told lies to court as to what the ru-T' ers of the du *ceasa*c' \* s family told him. 1 do believe that it is "2 who lied t< Courtt case - IV2 was in any ease already over tolling P1;/? that they hud scon say that the Chairman lied when he said that Kad^bozi (PW2; am\* Hwabutontori (PWJ; rienti

a1 t^ld lies to court when he saic th/.t at around 5.p.m. the family of tile deceased called the- Chairman aside nr c?scussed things and thereafter

**9**

P -'5 tied his hands He g'cs ah- ad t-> say that when they tied him Thi s was tn give the impression that the Chairman left him at the mercy of the family, of the deceased. t- n tree the Chairman had gene. f-lleginr thr.t he was the r>ne whe h-ci .hiIler1 the deceased.

- 9 -

1 de believe PH? when vid court that at deceased and when he went back to the scene ho found it was a1 who had been tied to a tree ana was being beaten. He rescued him and forwarded him t< accompanying letter (exhibit B.5). around 4.00p.m. he s^w people running saying that another person was to bo killed near the body of the L. C. II with an

J have also considered rhe defence by Ho said he knew of the incident at 2.00p.m. through his wife and he tried to go to the scene but changed his mind, because he learnt that since ^1 had been arrested he would also be . arrested because all relatives of those in person were being suspected. It should be noted that it was only a1 who was arrested on 15/3/2001 and no other relative of those in person i.c. Rwendeire aid 4ikebwa had been arrested. I believe the arrest of a1 alerted him that the attackers had been identified. He rightly feared.

According tn the evidence of all the a ecu -od person they say that they are merely suspected because the father oi A1 and ano th- t were in prison on account of the case between the father of the deceased and father of A1 . The accused persons and particularly a2 came cut with the story that the deceased using Game Rangers had burnt some hones of people who had settled existed the family of the deceased Would have been aware and if it were a matter of pi cling on suspected enemies as the attackers they would, as well have picked on tnc-r. possibility of other people having committed th; crime, jf such enmity at a place called liwcbishahi. ] believe this was intended tn create the

As already stated all accused persons said they were in their homes, vhele night of 14/3/2001. Thus a defence &lt;'i alibi was r< ised. It is the trite law that by setting up an alibi, an accused person does not ibhereby to raise v.doubt in the and plfice the accused persons nt the scene of the crime *-* See Ntale V. U^an^a assume prosecution case. It is still the duty of the prosecution to disprove it the burden of proving its truth so as

**I**

**,i**

**I I**

/10

## 1963 Ei. 365, Ssekitolcko V, Uganda 1962-^t.^J.

the participation of the accused persons. They 'vure hcnc-st and their evidence was not ''vised on mere suspicion. Their evidence placed the accused person, at the scene of the crime, I an there was no mistaken identity. Herein above 1 have ulreury considered the ov:< once as a whole reg<<rrin/r in agreement with th«. gentleman assessor that

Consequently I find all the accused persons guilty of Harder Contrary to Sections 1 <33 and 134 of the Penal Code Act and 1 convict them accordingly.

Sgd. ( V. T. ZEHBR-A'ZE)

JUDGE 14/1/2003.

14/1/200J: All accused persons in Court. **O**

hr. Nyar?utale for the accused. Mr. Asiimwe for the . State. Kahigi - assessor in Court. hihumura - interpreting.

Court: Judgement delivered in open Court in the presence of the accused and both Counsel.

'. KE) **x/ <0** Sgd. ( V. T. ZEB

JUDGE

14/1/2003.

Court: Sentence

Upon conviction of Murder there Thej ef\* re and all of is only the t-.; nentcry death sentence. 1 sentence you Byarukaw Foderiko, rtdyanako Jai.c-s .-.nd Baryahobwa Jc.hn you shall suffer doth in the manner authorised by law.

J-^dge **\y .** Sgd. ( V. T.

14/1/2003.

..../11

Court: Right of Appeal explained.

**F** Sgd. ( V. T. ZEHUNK2ZE)

JUDGE

14/1/2003.