Uganda v Lotukei Richard (CRIMINAL SESSION CASE NO. 0424 OF 2006) (CRIMINAL SESSION CASE NO. 0424 OF 2006) [2008] UGHC 21 (22 August 2008)

{\rtf1\ansi\ansicpg1252\uc1\deff0\stshfdbch0\stshfloch0\stshfhich0\stshfbi0\deflang2057\deflangfe2057{\fonttbl{\f0\froman\fcharset0\fprq2{\*\panose 02020603050405020304}Times New Roman;}{\f35\fswiss\fcharset0\fprq2{\*\panose 020b0604030504040204}Tahoma;} {\f38\fswiss\fcharset0\fprq2{\*\panose 020b0604030504040204}Verdana;}{\f39\froman\fcharset0\fprq2{\*\panose 02050604050505020204}Bookman Old Style;}{\f40\froman\fcharset238\fprq2 Times New Roman CE;}{\f41\froman\fcharset204\fprq2 Times New Roman Cyr;} {\f43\froman\fcharset161\fprq2 Times New Roman Greek;}{\f44\froman\fcharset162\fprq2 Times New Roman Tur;}{\f45\froman\fcharset177\fprq2 Times New Roman (Hebrew);}{\f46\froman\fcharset178\fprq2 Times New Roman (Arabic);} {\f47\froman\fcharset186\fprq2 Times New Roman Baltic;}{\f48\froman\fcharset163\fprq2 Times New Roman (Vietnamese);}{\f390\fswiss\fcharset238\fprq2 Tahoma CE;}{\f391\fswiss\fcharset204\fprq2 Tahoma Cyr;}{\f393\fswiss\fcharset161\fprq2 Tahoma Greek;} {\f394\fswiss\fcharset162\fprq2 Tahoma Tur;}{\f395\fswiss\fcharset177\fprq2 Tahoma (Hebrew);}{\f396\fswiss\fcharset178\fprq2 Tahoma (Arabic);}{\f397\fswiss\fcharset186\fprq2 Tahoma Baltic;}{\f398\fswiss\fcharset163\fprq2 Tahoma (Vietnamese);} {\f399\fswiss\fcharset222\fprq2 Tahoma (Thai);}{\f420\fswiss\fcharset238\fprq2 Verdana CE;}{\f421\fswiss\fcharset204\fprq2 Verdana Cyr;}{\f423\fswiss\fcharset161\fprq2 Verdana Greek;}{\f424\fswiss\fcharset162\fprq2 Verdana Tur;} {\f427\fswiss\fcharset186\fprq2 Verdana Baltic;}{\f428\fswiss\fcharset163\fprq2 Verdana (Vietnamese);}{\f430\froman\fcharset238\fprq2 Bookman Old Style CE;}{\f431\froman\fcharset204\fprq2 Bookman Old Style Cyr;} {\f433\froman\fcharset161\fprq2 Bookman Old Style Greek;}{\f434\froman\fcharset162\fprq2 Bookman Old Style Tur;}{\f437\froman\fcharset186\fprq2 Bookman Old Style Baltic;}}{\colortbl;\red0\green0\blue0;\red0\green0\blue255;\red0\green255\blue255; \red0\green255\blue0;\red255\green0\blue255;\red255\green0\blue0;\red255\green255\blue0;\red255\green255\blue255;\red0\green0\blue128;\red0\green128\blue128;\red0\green128\blue0;\red128\green0\blue128;\red128\green0\blue0;\red128\green128\blue0; \red128\green128\blue128;\red192\green192\blue192;}{\stylesheet{\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \snext0 Normal;}{ \s1\qc \li0\ri0\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel0\adjustright\rin0\lin0\itap0 \b\fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext0 heading 1;}{ \s2\ql \li0\ri0\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel1\adjustright\rin0\lin0\itap0 \b\fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext0 heading 2;}{\s3\qj \li0\ri0\sl360\slmult1 \keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel2\adjustright\rin0\lin0\itap0 \b\fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext0 heading 3;}{\*\cs10 \additive \ssemihidden Default Paragraph Font;}{\* \ts11\tsrowd\trftsWidthB3\trpaddl108\trpaddr108\trpaddfl3\trpaddft3\trpaddfb3\trpaddfr3\trcbpat1\trcfpat1\tscellwidthfts0\tsvertalt\tsbrdrt\tsbrdrl\tsbrdrb\tsbrdrr\tsbrdrdgl\tsbrdrdgr\tsbrdrh\tsbrdrv \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang1024\langfe1024\cgrid\langnp1024\langfenp1024 \snext11 \ssemihidden Normal Table;}{\s15\qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \b\fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext15 Title;}{\s16\qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \b\fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext16 Subtitle;}{\s17\ql \li0\ri0\widctlpar\tqc\tx4320\tqr\tx8640\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext17 footer;}{\*\cs18 \additive \sbasedon10 page number;}{\s19\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext19 Body Text;}{\*\cs20 \additive \b\f0\fs24 \sbasedon10 Font Style18;}{\* \cs21 \additive \f0\fs24 \sbasedon10 Font Style19;}{\s22\qj \li0\ri0\sl-414\slmult0\nowidctlpar\faauto\rin0\lin0\itap0 \f38\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 \sbasedon0 \snext22 Style10;}{\*\cs23 \additive \f0\fs26\cf1 \sbasedon10 Font Style53;}{\*\cs24 \additive \b\f39\fs20\expnd2\expndtw10\cf1 \sbasedon10 Font Style56;}{\s25\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f35\fs16\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 \sbasedon0 \snext25 \ssemihidden \styrsid15604646 Balloon Text;}}{\*\latentstyles\lsdstimax156\lsdlockeddef0}{\*\rsidtbl \rsid459248\rsid1336304\rsid1513890\rsid2754670\rsid2777828\rsid2887159\rsid3438129\rsid4932696\rsid6445701\rsid7367373\rsid7564768 \rsid7934413\rsid8855826\rsid10253051\rsid10297023\rsid10691665\rsid11291026\rsid12022978\rsid12138289\rsid12875761\rsid13071710\rsid13372694\rsid13712432\rsid14042835\rsid14567656\rsid14893774\rsid14903354\rsid14964381\rsid15299143\rsid15604646 \rsid16449927}{\*\generator Microsoft Word 11.0.5604;}{\info{\title THE REPUBLIC OF UGANDA}{\author USER}{\operator jchemeri}{\creatim\yr2009\mo1\dy8\hr10\min14}{\revtim\yr2009\mo1\dy8\hr10\min14}{\printim\yr2008\mo8\dy22\hr9\min5}{\version2}{\edmins1} {\nofpages13}{\nofwords3370}{\nofchars19211}{\*\company ***}{\nofcharsws22536}{\vern24689}}\widowctrl\ftnbj\aenddoc\revisions\noxlattoyen\expshrtn\noultrlspc\dntblnsbdb\nospaceforul\formshade\horzdoc\dgmargin\dghspace180\dgvspace180\dghorigin1800 \dgvorigin1440\dghshow1\dgvshow1\jexpand\viewkind1\viewscale100\pgbrdrhead\pgbrdrfoot\splytwnine\ftnlytwnine\htmautsp\nolnhtadjtbl\useltbaln\alntblind\lytcalctblwd\lyttblrtgr\lnbrkrule\nojkernpunct\rsidroot7367373 \fet0{\*\ftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid14903354 \chftnsep \par }}{\*\ftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid14903354 \chftnsepc \par }}{\*\aftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid14903354 \chftnsep \par }}{\*\aftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid14903354 \chftnsepc \par }}\sectd \linex0\endnhere\sectlinegrid360\sectdefaultcl\sftnbj {\footer \pard\plain \s17\ql \li0\ri0\widctlpar\tqc\tx4320\tqr\tx8640\pvpara\phmrg\posxr\posy0\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\field{\*\fldinst {\cs18\insrsid2754670 PAGE }}{\fldrslt {\cs18\lang1024\langfe1024\noproof\insrsid11291026 1}}}{\cs18\insrsid2754670 \par }\pard \s17\ql \li0\ri360\widctlpar\tqc\tx4320\tqr\tx8640\aspalpha\aspnum\faauto\adjustright\rin360\lin0\itap0 {\insrsid2754670 \par }}{\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang {\pntxta )}} {\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl8 \pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \s15\qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \b\fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs26\insrsid15299143 THE REPUBLIC OF UGANDA \par }\pard\plain \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs26\insrsid15299143 \par }\pard\plain \s16\qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \b\fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid15299143 IN THE HIGH COURT OF UGANDA AT JINJA \par }\pard\plain \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs26\insrsid15299143 \par CRIMINAL SESSION CASE NO. 04}{\b\fs26\insrsid14893774 24}{\b\fs26\insrsid15299143 OF 2006 \par }\pard \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 {\b\fs26\insrsid15299143 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 {\b\fs26\insrsid15299143 UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::}{\b\fs26\insrsid11291026 : PROSECUTOR}{ \b\fs26\insrsid15299143 \par \par }\pard\plain \s1\qc \li0\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel0\adjustright\rin0\lin0\itap0\pararsid7934413 \b\fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs26\insrsid15299143 VERSUS \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs26\insrsid15299143 \par }{\b\fs26\insrsid14893774 LOTUKEI RICHARD}{\b\fs26\insrsid15299143 :::::::::::::::::::::::::::::::::::::::::::::::::::::}{\b\fs26\insrsid11291026 : ACCUSED}{\b\fs26\insrsid15299143 \par }\pard \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 {\b\fs26\insrsid15299143 \par \par BEFORE: }{\b\fs26\ul\insrsid15299143 HON. LADY JUSTICE IRENE MULYAGONJA KAKOOZA}{\fs26\insrsid15299143 \par \par }\pard\plain \s2\qc \li0\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel1\adjustright\rin0\lin0\itap0\pararsid7934413 \b\fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs26\insrsid15299143 JUDGMENT \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs26\insrsid13712432\charrsid16154384 The accused }{\fs26\insrsid7564768 was}{ \fs26\insrsid13712432\charrsid16154384 indicted for murder contrary to sections 188 and 189 of the Penal Code Act.}{\fs26\insrsid7564768 It was stated in the indictment that on the 20}{\fs26\super\insrsid7564768\charrsid7564768 th}{ \fs26\insrsid7564768 day of May 2003 at Masese III village in Jinja Distirct, Lotukei Richard alias Lijja murdered Moru Maria. The accused pleaded not guilty to the indictment and the prosecution called 5 witnesses to prove its case. The accused gave sworn evidence in answer to the indictment. }{ \fs26\insrsid13712432\charrsid16154384 }{\fs26\insrsid13712432 \par \par }{\fs26\insrsid13712432\charrsid16154384 The }{\fs26\insrsid13712432 prosecution case was briefly that}{\fs26\insrsid13712432\charrsid16154384 on the 20/05/03, the deceased (}{\fs26\insrsid13712432 Maria }{\fs26\insrsid13712432\charrsid16154384 Moru) and her husband the accused had a fight at their home. }{\fs26\insrsid15604646\charrsid16154384 The}{\fs26\insrsid15604646 two}{\fs26\insrsid15604646\charrsid16154384 }{\fs26\insrsid13712432\charrsid16154384 had rented rooms/a room at the tenements of PW3 }{\fs26\insrsid13712432 Bruhane }{\fs26\insrsid13712432\charrsid16154384 Ejiet. Ejiet lived with, among others, Anna Asio }{\fs26\insrsid13712432 (PW4), }{\fs26\insrsid13712432\charrsid16154384 his sister. }{\fs26\insrsid13712432 PW3 and PW4}{\fs26\insrsid13712432\charrsid16154384 testified that }{\fs26\insrsid13712432 on the material day }{\fs26\insrsid13712432\charrsid16154384 there was a fight between }{\fs26\insrsid13712432 the }{ \fs26\insrsid13712432\charrsid16154384 accused and the deceased}{\fs26\insrsid13712432 .}{\fs26\insrsid13712432\charrsid16154384 PW3 saw }{\fs26\insrsid13712432 them fight }{\fs26\insrsid13712432\charrsid16154384 and proceeded to report to }{ \fs26\insrsid13712432 John Mweru (}{\fs26\insrsid13712432\charrsid16154384 PW1}{\fs26\insrsid13712432 ) the L}{\fs26\insrsid3438129 ocal }{\fs26\insrsid13712432 C}{\fs26\insrsid3438129 ouncil (LC) }{\fs26\insrsid13712432 1 }{\fs26\insrsid1336304 Chairman} {\fs26\insrsid13712432 of Masese III village.}{\fs26\insrsid13712432\charrsid16154384 PW4 testified that she heard the deceased cry out but }{\fs26\insrsid15604646 she }{\fs26\insrsid13712432\charrsid16154384 could not go out to see what was happening to her}{\fs26\insrsid15604646 because she was unwell}{\fs26\insrsid13712432\charrsid16154384 . However, she knew it was the deceased}{\fs26\insrsid7564768 \rquote s cry}{\fs26\insrsid13712432\charrsid16154384 because }{\fs26\insrsid15604646 the deceased}{\fs26\insrsid15604646\charrsid16154384 }{\fs26\insrsid13712432\charrsid16154384 and }{\fs26\insrsid15604646 the }{\fs26\insrsid13712432\charrsid16154384 accused were in the habit of fighting almost every}{ \fs26\insrsid2754670 }{\fs26\insrsid13712432\charrsid16154384 day. \par \par It was the evidence of PW1 that the fight was not reported to him, but PW3 asserted that he reported }{\fs26\insrsid15604646 though}{\fs26\insrsid15604646\charrsid16154384 }{\fs26\insrsid13712432\charrsid16154384 PW1 did not respond immediately. }{ \fs26\insrsid15604646 PW1}{\fs26\insrsid15604646\charrsid16154384 }{\fs26\insrsid13712432\charrsid16154384 came to the scene }{\fs26\insrsid15604646 of the crime }{\fs26\insrsid13712432\charrsid16154384 after the deceased had died. The evidence of PW1 was that the last time he saw the accused in Masese was on the evening of 20/05/03 as he was walking through the trading centre}{\fs26\insrsid15604646 . H}{\fs26\insrsid13712432\charrsid16154384 e did not see }{\fs26\insrsid15604646 again from that day}{\fs26\insrsid13712432\charrsid16154384 till he saw him }{\fs26\insrsid15604646 court when he was summoned to testify in this case}{\fs26\insrsid13712432\charrsid16154384 . }{ \fs26\insrsid15604646 PW1 testified that w}{\fs26\insrsid13712432\charrsid16154384 hen he got to the scene of the crime}{\fs26\insrsid15604646 ,}{\fs26\insrsid13712432\charrsid16154384 }{\fs26\insrsid15604646 where he}{ \fs26\insrsid15604646\charrsid16154384 }{\fs26\insrsid13712432\charrsid16154384 saw the body of the deceased}{\fs26\insrsid15604646 ,}{\fs26\insrsid13712432\charrsid16154384 he was }{\fs26\insrsid15604646 informed that there had been a }{ \fs26\insrsid13712432\charrsid16154384 fight between the }{\fs26\insrsid15604646 accused and the deceased and}{\fs26\insrsid13712432\charrsid16154384 that the accused disappeared after the fight. \par \par }{\fs26\insrsid15604646 Nambafu Bernard (}{\fs26\insrsid13712432\charrsid16154384 PW2}{\fs26\insrsid15604646 )}{\fs26\insrsid13712432\charrsid16154384 }{\fs26\insrsid15604646 was }{\fs26\insrsid13712432\charrsid16154384 the investigating officer }{ \fs26\insrsid15604646 for the case. He testified that }{\fs26\insrsid13712432\charrsid16154384 he went to the scene of the crime the following day \endash 21/05/03 and found the naked body of the deceased lying in the doorway of }{\fs26\insrsid15604646 a}{\fs26\insrsid15604646\charrsid16154384 }{\fs26\insrsid13712432\charrsid16154384 house}{\fs26\insrsid15604646 . PW1 }{\fs26\insrsid13712432\charrsid16154384 was }{\fs26\insrsid15604646 informed that accused and the deceased had }{ \fs26\insrsid13712432\charrsid16154384 shared }{\fs26\insrsid15604646 the house and lived as husband and wife}{\fs26\insrsid13712432\charrsid16154384 . }{\fs26\insrsid14042835 PW1 also testified about }{\fs26\insrsid13712432\charrsid16154384 the injuries of the deceased on the head and bruises on the face. He also }{\fs26\insrsid14042835 found}{\fs26\insrsid14042835\charrsid16154384 }{\fs26\insrsid13712432\charrsid16154384 2 sticks at the scene which he recovered and took back to the police station. He drew a sketch plan showing where he found the body lying in a pool of blood and the sticks, and a point in the compound where there was more blood}{\fs26\insrsid14042835 .}{ \fs26\insrsid13712432\charrsid16154384 \par \par The evidence of }{\fs26\insrsid14042835 Dr. Katende (}{\fs26\insrsid13712432\charrsid16154384 PW5}{\fs26\insrsid14042835 ) was that on the 21/05/03 he was requested to carry out }{\fs26\insrsid2754670 a}{\fs26\insrsid13712432\charrsid16154384 post mortem examination on}{\fs26\insrsid14042835 the body of the deceased. He testified that he }{\fs26\insrsid13712432\charrsid16154384 carried out a post mortem examination on 23/05/0 3. He found that the deceased had died of a head injury due to an assault. He did not name the weapons that were likely to have been used in the report but on cross-examination he stated that the deceased could have been hit with a back of a hoe, a ston e or an axe. He stated that he concluded that the death resulted from an assault because it was stated in the request for }{\fs26\insrsid14042835 p}{\fs26\insrsid14042835\charrsid16154384 ost }{\fs26\insrsid13712432\charrsid16154384 mortem}{ \fs26\insrsid14042835 examination}{\fs26\insrsid13712432\charrsid16154384 . \par \par The case for the defence was that the accused and the deceased had separated earlier because their child died and the deceased was no longer happy with the accused}{\fs26\insrsid14042835 . That the deceased left him }{ \fs26\insrsid13712432\charrsid16154384 and rented a house of her own. Accused also set up an alibi that at the time of the death he had left Masese and migrated to Naksongola where he was employed as a cattle keeper. }{\fs26\insrsid14567656 He claimed he only came to know about }{\fs26\insrsid14042835 the deceased\rquote s }{\fs26\insrsid14567656 death when he was arrested and told that he was being charged for killing her. He felt bad because he was accused of killing her.}{ \fs26\insrsid13712432\charrsid16154384 \par }{\fs26\insrsid15299143 \par The burden of proving the guilt of an accused person lies on the prosecution}{\fs26\insrsid14042835 all thorugh the trial}{\fs26\insrsid15299143 ; it never shifts onto the accused except in a few statutory cases. The prosecution is required to prove the indictment against the accused beyond reasonable doubt. Where any doubt exists, it should be resolved in favour of the accused }{ \b\fs26\insrsid15299143 (U v. Dic Ojok [1992-1993] HCB, 54). \par }{\fs26\insrsid15299143 \par }\pard\plain \s19\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid15299143 In cases of murder like this one, the prosecution is required to prove all the ingredients that constitute the offence beyond reasonable}{\insrsid14042835 doubt}{\insrsid15299143 . The prosecution therefore had to prove that Maria Mor u died, that her death was caused unlawfully and with malice aforethought, and that the accused directly caused her death or participated in causing it. \par \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs26\insrsid15299143 Regarding the first ingredient, the prosecution relied on the evidence of PW1, Mweru John, Bruhane Ejiet (PW3) and Anna Asio (PW4). Prosecution also produced a post mortem report (Exh. P3) }{\fs26\insrsid14042835 which stated the cause of death}{ \fs26\insrsid15299143 . The defence did not contest }{\fs26\insrsid14042835 that }{\fs26\insrsid15299143 death }{\fs26\insrsid2754670 occurred}{\fs26\insrsid15299143 . The first ingredient was therefore proved beyond reasonable doubt. \par \par As to whether the death was caused unlawfully, the }{\fs26\insrsid14042835 legal }{\fs26\insrsid15299143 presumption is that all homicides are unlawful except where death is caused by accident or in execution of a lawful sentence. (See Article 22, Constitution of Republic of Uganda and }{\b\fs26\insrsid15299143 U v. Gayira and another [1994-1995] HCB at 16.} {\fs26\insrsid15299143 ) PW3 and PW4 testified that the deceased was assaulted on the night that she died and }{\fs26\insrsid14042835 that }{\fs26\insrsid15299143 this resulted in her death. The post mortem report described the possible cause of death as head injury due to assault. Since assault is an offence, a nd the defence did not contest the fact that the deceased was assaulted, I find that the prosecution also proved the second ingredient of the indictment beyond reasonable doubt. \par \par With regard to malice aforethought,}{\fs26\insrsid14042835 s. 19}{\fs26\insrsid10253051 1}{\fs26\insrsid14042835 of the PCA provides that malice aforethought is established }{\fs26\insrsid10253051 when it is proved that there was an intention to cause death of a person, whether the death occurs or not. It may also be proved where there is knowledge that an act or omission causing death will probably cause death of some person }{ \fs26\insrsid2754670 whether}{\fs26\insrsid10253051 such person is actually killed or not}{\fs26\insrsid14964381 . It does not matter that the knowledge is accompanied by indifference, whether death is caused or not, or by a wish that death may not be caused. Malice }{\fs26\insrsid2754670 aforethought}{\fs26\insrsid14964381 is therefore a state of mind. It has been held that it can be inferred from the part of the body targeted, the weapon used and the behaviour of the }{\fs26\insrsid2754670 accused}{\fs26\insrsid14964381 before, during or after the death in issue. \par \par T}{\fs26\insrsid15299143 he evidence adduced by the prosecution was that }{\fs26\insrsid14964381 death in this case }{\fs26\insrsid15299143 could be inferred from t he nature of the injury that was sustained by the accused. The deceased was hit on the head. The evidence of }{\fs26\insrsid14964381 PW1, PW}{\fs26\insrsid13071710 3}{\fs26\insrsid14964381 and }{\fs26\insrsid15299143 PW5 showed that the deceased died of }{\fs26\insrsid13071710 an injury on the head. The post mortem report and evidence of PW5 showed that the deceased died of an open head injury}{\fs26\insrsid15299143 \endash }{\fs26\insrsid14964381 \'93}{ \fs26\insrsid15299143 an injury to the brain that led to the rest of the vital centres of the body stopping}{\fs26\insrsid14964381 \'94}{\fs26\insrsid15299143 . According to PW5 the likely weapon used to cause the injury was a hoe, stone or an axe. The defence did not contest that malice aforethought was proved. I therefore find that malice aforethought was proved beyond reasonable doubt. \par \par It must then be considered whether the accused caused the death of the deceased or participated in causing it. In order to prove this, the prosecution relied solely on the evidence of PW3 and PW4. PW3 testified that on the night in question, }{ \fs26\insrsid13071710 he }{\fs26\insrsid15299143 saw the accused and the deceased fight in the compound in front of the house in which they lived as his tenants. He explained that the accused was very violent towards the deceased. Seeing there was a }{ \fs26\insrsid13071710 fight}{\fs26\insrsid15299143 , PW3 went to the LC1, John Mweru to report. The chairman did not respond in time. When PW3 returned to the deceased\rquote s home, he found when the deceased was dead. The accused had already run away but PW3 looked at the body, which was lying in the sitting room, and it had a wound on the head. }{\fs26\insrsid13071710 \par \par }{\fs26\insrsid15299143 In cross-examination }{\fs26\insrsid13071710 PW3 }{\fs26\insrsid15299143 stated that when he returned and found the deceased dead he was informed by the }{\fs26\insrsid15604646 accused\rquote s }{\fs26\insrsid15299143 other neighbours that the accused had killed his wife. PW3 als o explained that there had been complaints that the accused was a violent man fond of fighting. PW3 observed the fight from a distance of about 100 metres and it was at 9.00 p.m. at night. He affirmed that by the time he left to go and report to the LC} {\fs26\insrsid13071710 1}{\fs26\insrsid15299143 Chairman, the accused and his wife were still fighting and they were near the entrance }{\fs26\insrsid13071710 to their }{\fs26\insrsid15299143 house. When he returned, the accused had disappeared and the body of the deceased was lying at the entrance of the house. \par \par }{\fs26\insrsid13071710 Mr. Wagira, c}{\fs26\insrsid15299143 ounsel for the accused submitted that the evidence of a single identifying witness should only be accepted with caution since there was no other evidence that corroborated it. He drew court \rquote s attention to the fact that PW3 had poor eyesight; he failed to identify the accused in court from the witness stand and had to move close to him to do so. \par \par }{\fs26\insrsid15299143 Court of Appeal in }{\b\fs26\insrsid15299143 U v. George Wilson Simbwa}{\fs26\insrsid15299143 (supra) re-stated the law on single identifying witnesses as follows: }{\fs26\highlight3\insrsid15299143 \par \par }\pard \qj \li540\ri720\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin540\itap0\pararsid7934413 {\i\fs26\insrsid15299143 \'93Briefly the law is that although identification of an accused per son can be proved by the testimony of a single witness this does not lessen the need for testing with the greatest care the evidence of such a witness regarding identification, especially when conditions favouring correct identification are difficult. Ci r cumstances to be taken into account include the presence and nature of light; the accused person is known to the witness before the incident or not; the time and the opportunity the witness had to see the accused; the distance between them. Where conditi o ns are unfavourable for correct identification, what is needed is other evidence pointing to guilt from which it can be reasonably concluded that the evidence of identification can safely be accepted as free from possibility of error. The true test is no t whether the evidence of such a witness is reliable. A witness may be reliable and yet there is still the risk of an honest mistake particularly in identification. The true test \'85 briefly is whether the evidence can be accepted as free from the possibility of error.\'94 \par }\pard \qj \li0\ri720\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin0\itap0\pararsid7934413 {\i\fs26\insrsid15299143 \par }\pard\plain \s19\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid15299143 The circumstances to be taken into account to determine whether a witness could have properly identified the accused include the presence and nature of light; the accused person is known to the witness before the incident or not; the time an d the opportunity the witness had to see the accused; the distance between them. \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\cs21\fs26\insrsid15299143 \par }{\cs21\fs26\insrsid15299143 In the instant case, PW3 gave the evidence that he saw the accused and his wife fighting. The accused and his wife had been his tenants for a period of one month. The circu mstances in which the witness identified the accused were clearly difficult. It was 9.00 p.m. at night. The witness did not tell court what source of light he used to identify the accused. However he was sure it was the accused and his wife fighting an d he went to report the matter to the LC1 Chairman as a responsible landlord. \par \par PW3 testified that when he saw the fight, the accused was very violent. That many people answered the alarms made by the deceased and watched the fight. The accused had in th e presence of PW3 and others gone to a bush nearby and got sticks with which he used to assault the deceased. The sticks were found next to the body of the deceased. PW1 testified that the sticks were about 1-\'bd inches in width and that when he saw them beside the body of the deceased they had blood on them. PW2 recovered the sticks and took them back with him to the police post though they were not produced in evidence. \par \par I find that the evidence of PW3 can be relied upon to put the accused at the scene of the crime. PW3 must have watched the fight for a considerable period of time and saw how the events unfolded up to the time that he left the scene of the crime to go an }{\cs21\fs26\insrsid3438129 d}{\cs21\fs26\insrsid15299143 make a report to the LC1 Chairman. He had known the accused as his tenant for a period of one month. The insufficiency of light notwithstanding, the length of time that PW3 }{ \cs21\fs26\insrsid10297023 and others }{\cs21\fs26\insrsid15299143 spent watching the fight appears to have been sufficient to enable him to identify the accused. \par \par In the event that there is doubt about the testimony of PW3 court must consider other evidence relating to the identification of the accused that night. PW4 testified that the accused and the deceased were tenants who lived in her brother PW3\rquote s house. She testified that on the night that the deceased died, sh e was ill and in her house nearby. She heard the deceased crying and concluded that she and the accused were fighting again. She informed court that the accused and the deceased were in the habit of fighting. They fought almost every night. The follow ing morning she woke up to the news that the deceased was dead and she saw the body in the house that had been rented by the accused. The accused had fled the area. She concluded that it was the accused that killed the deceased during the fight. \par \par Mr. Wagi ra Moses, counsel for the accused challenged the evidence of PW4. He contended that the evidence of PW4 could not be used to infer that the cry that the deceased made that night was because she was being assaulted. Further that PW4 could not tell with ce r tainty that the assault to the deceased was by the accused because in her testimony she never mentioned that the deceased was complaining about assault or that her husband was assaulting her. Mr. Niyonzima for the accused submitted in reply that the conc lusion that was made by }{\cs21\fs26\insrsid10297023 PW4}{\cs21\fs26\insrsid15299143 was justifiable and could be believed because of the past conduct of the accused towards the deceased. I find that the past conduct of a couple fighting almost everyday may lead to neighbours learning the general pattern of the fights and to identifying their voices during a fight. The evidence of PW4 was therefore credible, based on the past conduct of couple. \par \par Counsel for the accused challenged the fact that the fight between the accused and the deceased took place before many people. He wondered why these neighbours did not rescue the deceased because the accused was not armed. His contention was that it was inconceivable that a fatal fight could have gone on and not been stopped by neighbours. \par \par It is clear from the eviden ce adduced by the prosecution that after watching the fight for some time, PW3 left the scene and went to report the matter to the LC1 Chairman, PW1. However, PW1 did not respond in time, and PW3 returned to the scene alone; he found the deceased dead. The LC1 Chairman who denied that any report was made to him of the fight arrived at the scene of the crime after the deceased had been killed. \par \par The behaviour of the neighbours and the Chairman LC1 was not very strange. }{\cs21\fs26\insrsid10297023 PW4 testified that the accused and the deceased were in the habit of fighting.}{\cs21\fs26\insrsid15299143 }{\cs21\fs26\insrsid10297023 Incidents}{ \cs21\fs26\insrsid15299143 like the one that occurred in this case }{\cs21\fs26\insrsid10297023 are taken lightly by }{\cs21\fs26\insrsid15299143 neighbours}{\cs21\fs26\insrsid10297023 ; }{\cs21\fs26\insrsid15299143 even relatives often take fights between spouses lightly. }{\cs21\fs26\insrsid2754670 Authorities}{\cs21\fs26\insrsid15299143 like the LC and police }{\cs21\fs26\insrsid10297023 have the same attitudes about violence between spouses}{ \cs21\fs26\insrsid15299143 . In many instances, the authorities respond only when the assault has been extremely violent and the victim has been maimed or killed. The fact that the neighbours and authorities did not respond appropriately to the fight cannot theref ore be used to cast doubt on the prosecution evidence. \par \par Mr. Wagira also contended that doubt had been created in the evidence adduced by the prosecution because the sticks that were alleged to have been used by the accused to assault the deceased were not produced in evidence. The sticks were also not examined to establish whether the blood on them was that of the deceased. Further that the evidence given by PW5, Dr. Katende was that the injury that resulted in the death of the deceased was to the head a n d that the likely weapon that was used to inflict it was the back of a hoe, a stone or an axe. Mr. Wagira concluded that it could not be inferred from the evidence adduced by the prosecution that the death of the deceased was caused by the accused if he only used sticks to assault the deceased. \par \par }\pard\plain \s19\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\cs21\insrsid15299143 In reply, Mr. }{\cs21\insrsid10297023 Niyonzima }{ \cs21\insrsid15299143 submitted that since }{\cs21\insrsid10297023 PW5}{\cs21\insrsid15299143 ruled out the possibility of the sticks having caused the injury, there might have been another weapon used to cause it. PW2, the investigating officer who went to the scene of the crime and drew the sketch plan admitted that he did not enter the house because the body was at the entrance. Admittedly the investigations of the police in this matter left gaps in the evidence }{\cs21\insrsid10297023 produced by}{ \cs21\insrsid15299143 the prosecution. This is evident from the fact that the sticks though recovered from the scene of the crime were not tendered in evidence. However, }{\cs21\insrsid10297023 the lapse on the part of the police }{ \cs21\insrsid15299143 cannot be held against the prosecution and it cannot be used for the benefit of the accused. \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\cs23\fs26\cf1\highlight4\insrsid15299143 \par }{\cs23\fs26\cf1\insrsid15299143 In }{\cs23\b\fs26\cf1\insrsid15299143 Kooky Sherma & Another v. Uganda, SC Criminal Appeal No 44 of 2000}{\cs23\b\fs26\cf1\insrsid10297023 (unreported)}{\cs23\b\fs26\cf1\insrsid15299143 ,}{\cs23\fs26\cf1\insrsid15299143 the Supreme Court was faced with a similar situation when evidence was adduced that the deceased had died as a result of electric shocks that were administered by her husband bef ore her death. However, evidence had also been adduced that on the night in question, there was a power outage at the scene of the crime and surrounding areas. The defence contended that death by electric shocks was not feasible and preferred other evi dence that had been adduced that the deceased committed suicide because there were also traces of poison found in vital organs of her body. The court referred to the reasoning of the East African Court of Appeal }{ \cs24\fs26\expnd2\expndtw10\cf1\insrsid15299143\charrsid2754670 in}{\cs24\b\fs26\expnd2\expndtw10\cf1\insrsid15299143 S. Mungai }{\cs24\b\fs26\expnd2\expndtw10\cf1\insrsid10297023 v}{\cs24\b\fs26\expnd2\expndtw10\cf1\insrsid15299143 . Republic }{ \cs23\fs26\cf1\insrsid15299143 (1965) EA 782 at page 787 }{\cs23\fs26\cf1\insrsid10297023 where it was held}{\cs23\fs26\cf1\insrsid15299143 that there was no burden on the prosecution to prove the nature of the weapon used in inflicting the harm which caused death nor was there an obligation to prove how the instrument was obtained or applied in inflicting the harm. T he same reasoning can safely be applied }{\cs23\fs26\cf1\insrsid10297023 to }{\cs23\fs26\cf1\insrsid15299143 the instant case. \par \par The evidence adduced by the prosecution was also challenged because the sketch plan that was drawn by PW2 showed two spots with blood, one in the compound and another at the entrance where the b ody of the deceased was found lying in a pool of blood. The sketch did not show a trail of blood from the point in the compound to the place in the house where the deceased\rquote s body was found. Mr. Wagira for the accused proposed that this fact led to the inference that the accused could have been killed elsewhere and carried carefully to the house in order to implicate the accused of her murder. \par \par This court }{\cs23\fs26\cf1\insrsid10297023 has }{\cs23\fs26\cf1\insrsid15299143 already observed that there were gaps left in the investigation carried out by the police in this case. The fact that a trail of blood was not shown on the sketch plan could have been one such omission. It also one that the prosecution cannot be held liable for and it cannot be used in favour of the accused to acquit him. There is other evidence t h at there was a fight between the accused and the deceased on the night that the deceased died. Other circumstantial evidence led by the prosecution clearly showed that the deceased died after the fight. The evidence of PW3 is reliable on this. He left t he scene of the crime when the accused and deceased were still fighting. He returned when the deceased was dead in their house. There is not other plausible inference that can be drawn from this than that the deceased died due to injuries in the fight w ithout other independent evidence adduced by the defence. \par \par Further evidence that leads to inference of the guilt of the accused is that he ran away from Masese after the incident in which the deceased was killed. Although counsel for the accused submitted that no evidence had been led by the prosecution to prove that he accused was in Masese on the day that the deceased was killed, PW1 testified that he last saw him in Masese on the 20/05/}{\cs23\fs26\cf1\insrsid10297023 2003 }{ \cs23\fs26\cf1\insrsid15299143 when he was walking in Masese Trading Centre. PW1, PW3 and PW4 told court that they did not see him again after until they saw him in court when they came to testify about the death of the deceased. \par \par }{\cs23\fs26\cf1\insrsid15299143\charrsid10691665 The accused gave evidence on oath in his defence.}{\cs23\fs26\cf1\insrsid15299143 }{\fs26\insrsid12875761 He testified that he and}{\fs26\insrsid12875761\charrsid16154384 the accused had separated }{ \fs26\insrsid12875761 long before her death and each gone their separate ways.}{\fs26\insrsid10297023 This was contrary to the evidence of PW1, PW3 and PW4.}{\fs26\insrsid12875761 }{\fs26\insrsid10297023 He also stated that t}{\fs26\insrsid12875761 he separation}{\fs26\insrsid10297023 resulted from the death of their}{\fs26\insrsid12875761\charrsid16154384 child}{\fs26\insrsid10297023 ;}{\fs26\insrsid12875761\charrsid16154384 deceased was no longer happy with the accused so she went away and rented a house of her own.}{\fs26\insrsid10297023 This was contrary to the evidence of PW3 and PW4 who both asserted that when accused came to rent a house, he came with a wife \endash the deceased.}{\fs26\insrsid12875761\charrsid16154384 Accused also set up an }{\i\fs26\insrsid12875761\charrsid10297023 alibi}{\fs26\insrsid12875761\charrsid16154384 that at the time of the death he had left Masese and migrated to Nakso ngola where he was employed as a cattle keeper.}{\fs26\insrsid1513890 This was contrary to the evidence of PW1 who stated that he saw the accused in Masese trading centre on the day that he fought with the deceased. \par \par The accused also testified that }{\fs26\insrsid12875761\charrsid16154384 he did not know of the death of the deceased until he was arrested and charged }{\fs26\insrsid10691665 for}{\fs26\insrsid12875761\charrsid16154384 it. Accused could tell court when he left Walukuba to mo}{\fs26\insrsid10691665 ve}{\fs26\insrsid12875761\charrsid16154384 to Masese in 2002, but he was unable to tell court when he left Masese for Nakasongola which was at a later time}{ \fs26\insrsid1513890 because he was uneducated and illiterate. The failure to tell when he left Masese was therefore not sufficiently explained }{\fs26\insrsid13372694 in order }{\fs26\insrsid1513890 to convince court that }{\fs26\insrsid2754670 accused }{\fs26\insrsid1513890 actually left before death of the deceased for valid reasons.}{\fs26\insrsid12875761\charrsid16154384 \par }{\cs23\fs26\cf1\highlight2\insrsid15299143 \par }{\cs23\fs26\cf1\insrsid15299143\charrsid16449927 Under our criminal justice system, an accused can only be convicted on the basis of evidence adduced by the prosecution but not }{\cs23\fs26\cf1\insrsid7934413 because of the weakness of his defence}{ \cs23\fs26\cf1\insrsid15299143\charrsid16449927 . However}{\cs23\fs26\cf1\insrsid12138289\charrsid16449927 ,}{\cs23\fs26\cf1\insrsid15299143\charrsid16449927 in some cases it has been held that the accused\rquote s untruthfulness is a factor that can be taken into account }{\cs23\fs26\cf1\insrsid7934413 to strengthen}{\cs23\fs26\cf1\insrsid15299143\charrsid16449927 the inference of guilt}{\cs23\fs26\cf1\insrsid12138289\charrsid16449927 }{ \cs23\b\fs26\cf1\insrsid12138289\charrsid7934413 (Uganda v. Wasajja, [1975] HCB, 78}{\cs23\fs26\cf1\insrsid12138289\charrsid16449927 )}{\cs23\fs26\cf1\insrsid15299143\charrsid16449927 . I find that the evidence of the accused was unreliable}{ \cs23\fs26\cf1\insrsid12138289\charrsid16449927 and contained several lies}{\cs23\fs26\cf1\insrsid15299143\charrsid16449927 .}{\cs23\fs26\cf1\insrsid15299143 The accused was placed at the scene of the crime by the evidence adduced by the prosecution}{ \cs23\fs26\cf1\insrsid7934413 . There is not other }{\cs23\fs26\cf1\insrsid13372694 explanation}{\cs23\fs26\cf1\insrsid7934413 about the accused\rquote s death other than the fight that she had with him just before she died. I therefore have no doubt that the accused was responsible for the death of the deceased}{\cs23\fs26\cf1\insrsid15299143 . The fourth ingredient has therefore also been proved beyond reasonable doubt. \par }\pard\plain \s19\qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs26\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid15299143 \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7934413 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\cs21\fs26\insrsid15299143 The assessors gave a joint opinion and they advised that the accused should be convicted}{\cs21\fs26\insrsid7934413 of murder. }{\cs21\fs26\insrsid15299143 I am in agreement with them. }{\cs21\fs26\insrsid7934413 Since the prosecution proved all the four ingredients of murder, t}{\cs21\fs26\insrsid15299143 he accused is }{\cs21\fs26\insrsid7934413 hereby }{\cs21\fs26\insrsid15299143 convicted of murder as indicted. \par \par }{\cs21\b\fs26\insrsid15299143 \par Irene Mulyagonja Kakooza \par JUDGE \par 22/08/08 \par }{\cs21\fs26\insrsid15299143 }{\fs26\insrsid15299143 \par }}