Uganda v Masereka & 4 Others (Criminal Session Case 11 of 2024) [2024] UGHC 1100 (11 December 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CR-SC-11-2024**

**UGANDA====================================================PROSECUTION**

**VERSUS**

1. **MASEREKA ELIAS** 2. **KIKARA MOSES** 3. **MASEREKA RABSON** 4. **KULE YOKONIA** 5. **MUMBERE ALLAN BASIMIRE==================================ACCUSED**

**BEFORE: JUDGE DAVID S. L. MAKUMBI**

**JUDGMENT**

**REPRESENTATION:**

Senior State Attorney Godfrey Oundo for Prosecution

Counsel Serah Racheal for Accused on State Brief

**BACKGROUND:**

The indictment in this case is that of Murder contrary to Sections 171 and 172 of the Penal Code Act.

The Prosecution’s case is that the accused persons Masereka Elias, Kikara Moses, Masereka Rabson and Mumbere Rabson referred to as A1, A2, A3 and A4 respectively in the summary of the case, went to the home of the deceased Kabugho Daisy on 4th August 2020 under the pretext that they had a sick patient who needed the services of a village birth attendant. Upon the deceased opening her door the accused persons had attacked and strangled her to death and then stolen money and a pig and had then proceeded to lock her in her house.

On 9th August 2020, one Kyambya Amos, a grandson to the deceased discovered the deceased’s body lying on her bed when he had peeped through an opening in the deceased’s door. The Police was notified and when they arrived they forced the door open and found the body decomposing.

The body of the deceased was examined and the cause of death was determined to be strangulation by the neck and reported in Police Form 48B.

A4 a relative to the deceased was the first to be arrested and revealed that he had committed the offence with A1, A2 and A3 who were also subsequently arrested and all were accordingly charged.

The Accused persons pleaded not guilty to the indictment and were subjected to a full trial and at the close of the Prosecution case they opted to remain silent and not to produce witnesses in their own defence.

**ANALYSIS OF EVIDENCE:**

According to the time-honoured case of **Woolmington v DPP (1935) AC 462**, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

It is equally trite that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.

The determination of whether or not the burden and standard of proof have been discharged is based on the Supreme Court decision in **Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991** where it was held that,

*“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”*

For an accused person to be found guilty of the offence of Murder, the Prosecution must prove the following ingredients beyond reasonable doubt:

1. That the death of a human being occurred; 2. That the death was caused unlawfully; 3. That the death was caused with malice aforethought; and 4. That the accused participated in the crime.

Death may be proved by the production of a post-mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body (see **Kimweri v Republic [1968] EA 452**).

The Prosecution tendered in Police Form 48B as an Agreed Fact by which the post mortem report of Kabugho Daisy was received as Prosecution Exhibit 1 (PE 1). In the report the deceased was identified as Kabugho Daisy on 10th August 2020. Furthermore, PW2 Kyambya Amos, a grandson to the deceased, testified that the deceased died on 4th August 2020 and that he had discovered her dead in her house in Kithobira village in Kasese district.

PW4 Nguru Lazaro, a nephew to the deceased, testified that he attended the burial of the deceased. PW5 Baluku Gideon, a grandson to the deceased similarly testified that the deceased was buried on 10th August 2020.

The death of the deceased was not contested by the Defence.

In light of the foregoing evidence I find that the Prosecution has proved beyond reasonable doubt that Kabugho Daisy actually died.

Any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental, or it was authorized by law (see **Gusambizi s/o Wesonge v R [1948] 15 EACA 65**).

The postmortem report marked PE 1 indicated the cause of deathas cardio-pulmonary failure due to severe asphyxia, cause not established. The report further disclosed external injuries described as deep cut wounds on the body and broken teeth. PW2 testified that he had seen the body with injuries to the neck and leg tendons and injuries from a hammer.

PW6 Sgt Sooma Perez, a police officer, testified that he was one of the first officers at the scene and had broken into the house and found the body decomposing with a wound to the neck.

PW7, D/Cpl Bwambale Alfred, a police officer, testified that he was the Scene of Crime Officer and that he had observed a decomposing body with a wound around the breast.

The Defence did not contest the unlawful nature of the death.

Judging from the post mortem report and the testimony of those that saw the body at the scene, I find that the Prosecution has proved that the deceased’s manner of death was unlawful.

Malice aforethought is defined by Section 174 of the Penal Code Act as either an intention to cause the death of a person or knowledge that the act causing death will probably cause the death of some person. The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. Malice aforethought is a mental element that is difficult to prove by direct evidence. In the case of **Mumbere v Uganda – Supreme Court Criminal Appeal No 15 of 2014**, the Supreme Court held that,

*“The elements of malice aforethought are well set out under Section 191 of the Penal Code Act as follows:*

*‘****Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances—***

***(a) an intention to cause the death of any person, whether such 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.’***

*We also wish to note that this Court in****Nandudu Grace & Another v. Uganda, Criminal Appeal No.4 of 2009****reiterated the ratio in the earlier decision of this Court in****Francis Coke v. Uganda [1992-93] HCB 43****that the existence of malice aforethought is not a question of opinion but one of fact to be determined from the available evidence.*

*We also hasten to add that in determining whether the prosecution has proved malice aforethought, the Court has to examine the circumstances surrounding each case. These circumstances include:*

1. *the nature of the wounds inflicted;* 2. *the part of the body injured;* 3. *the type of weapon used;* 4. *the conduct of the accused person immediately before and after the injuries causing death were inflicted; and,* 5. *the manner in which the weapon was used-whether repeatedly or not.”*

The question of malice aforethought was also not contested by the Defence. Once again judging from the nature of injuries on the deceased’s body including deep cuts, there is no doubt that whoever killed the deceased did so with malice aforethought.

In considering whether the Accused persons participated in the commission of the offence, I note that there was no witness who testified to seeing the Accused persons at the crime scene and the actual participation in the death of the victim. All of the evidence against the Accused persons in terms of participation was therefore circumstantial. Circumstantial evidence must be incompatible with the innocence of the accused and incapable of any explanation upon any other hypotheses than of guilt. Furthermore, before the inference of guilt can be drawn there must be no other co-existing circumstances which would destroy the inference (see **Simon Musoke v R [1957] EA 715** and **Teper v R [1952] 2 All ER 477**).

Furthermore in the case of **Leonard Mpoma v R – Criminal Appeal No. 103 DSM-75 (1978) LR TN 58** it was held that in a charge of murder, the court should not convict the accused where the evidence is circumstantial and falls short of proving a charge.

As concerns the participation of the Accused persons PW2 testified that he had been the first to discover the body of the deceased and had also realized that the deceased’s pig was also missing. He had then testified that he learnt of the arrest of the Accused persons from the LC1 Chairman. It is apparent to me that PW2 had no direct knowledge of the participation of the Accused persons. However, in an effort to discredit PW2s testimony, Counsel for the Accused tendered in three police statements made by PW2 on the grounds that the PW2 had not been truthful. During submissions the Defence argued that there were contradictions apparent because PW2 had stated in his police statement tendered in evidence as DE 1B that Mumbere Allan (A5) had been arrested with a stolen pig. The Defence contended that this contradicted what PW3 said about the pig being found slaughtered behind A1s house. Defence further contended that this was contradictory to PW4s testimony that one of the Accused persons had been found selling the pig in Ihandiro Village.

I have considered the arguments of Defence Counsel concerning PW2 being untruthful and found that there was nothing in the police statements tendered in evidence as DE 1A, 1B and 1C to suggest that he had been untruthful. Furthermore, the contradiction between PW2s police statement and the testimony of PW3 cannot form a basis to challenge the truthfulness of PW2’s testimony. Court is primarily guided by the testimony of the witnesses in Court and the truthfulness or accuracy of such testimony can only be challenged on the basis of inconsistency and contradiction of their own police statements. The only time that a witness’ testimony can be challenged in terms of contradiction and inconsistency on the basis of evidence attributable to another witness is by way of another witness’ testimony before court or in light of physical evidence tendered in court. It is improper to suggest that a witness is untruthful or has contradicted themselves based upon the fact that what they stated in their police statement contradicted what another witness testified before court. It is not the police statement that constitutes the evidence of a witness but rather the testimony given on oath before court with the benefit of cross-examination. A police statement of one witness cannot therefore be used to impeach the reliability of another witness’ court testimony.

However, notwithstanding the above, Counsel for the Accused did rightly point out that there was inconsistency apparent between the testimonies of PW3 and PW4 when it came to the issue of the stolen pig. During examination in chief PW3 testified that A5 had informed him and others that he had eaten the pig with A1 and that furthermore when PW3 had proceeded to the home of A1 they found that the pig had been slaughtered behind A1s house. A1 had then informed PW3 and others that he had eaten the pig with Rabson (A3), Moses (A2), Kule (A4) and Mumbere (A5). Counsel for the Accused contended that the testimony of PW3 was inconsistent with the previous statement he had made to the police. According to the PW3s police statement tendered in evidence as DE 2 he had stated that A5 had informed him and others that the deceased victim’s pig stolen by A1 and another person called David Kibingo and that it was later sold in Ihandiro market. When queried about the inconsistency in his testimony and his own police statement PW3 maintained that he had informed police about the slaughter of the pig but his statement had not been read back to him.

The inconsistency about whether the stolen pig was slaughtered or sold is a material fact as it speaks to the actual events related to how the deceased met her end. As already observed above, PW2 testified that among the things he noted at the crime scene was the fact that the deceased’s pig was missing. The fate of the pig was therefore very relevant and material to establishing the events leading to the murder of the deceased.

PW4 Nguru Lazaro, a nephew to the deceased, testified that the Chairman LC1 for Ihandiro village had taken him to A5 who informed him that he and the rest of the Accused persons had stolen money and a pig from the deceased and had decided to kill her when they realized that she could identify them. Counsel for the Accused contested the truthfulness of PW4s testimony because, according to PW4s police statement received in evidence as DE 3, PW4 informed police that A5 only admitted to stealing the pig and blamed the killing on A1 and another unnamed person. Furthermore, according to PW4s police statement A5 declined to reveal what happened to the pig. During cross-examination Counsel for the Accused queried the inconsistency between the PW4s testimony in court and his police statement wherein he stated that A5 had admitted to only stealing the pig and that it was A1 and another who PW4 could not recall that killed the deceased. PW4 stated that the pig was taken to Ihandiro and also that the difference in his testimony and the police statement was on account of passage of time. On re-examination he maintained that it was A5 who told him about the plan to kill the deceased and was the one who sold the pig in Ihandiro.

From the above I note that PW3 and PW4s respective testimonies were contradictory to the extent that they had different testimonies with regard to what A5 had told them regarding what happened to the pig that went missing at the deceased’s home. By PW3s version, A5 informed them that he and the other Accused persons had slaughtered the pig at A1s house. PW4 specifically testified on cross-examination that the pig was never recovered as it had been sold. He had previously testified during examination in chief that it was A5 who had told him everything about the case.

It is also pertinent to note that whereas PW4 stated in examination in chief that A5 had told him that he and all the other Accused persons had decided to kill the deceased as they feared she would identify them, this detail was absent in his police statement where he only admitted to stealing the pig and distanced himself from the killing.

PW5 Baluku Gideon, a grandson to the deceased, testified that A1 had been behaving strangely and had spoken to a group of people in Kakikimbo Trading Centre two of whom PW5 named as Kule Ibrahim and Nehemiah Kinywandoto. PW5 stated that A1 had told these people about something rotten and having three wounds. He further testified that the body of the deceased was found decomposing with three wounds. He went on to testify that A5 had told him and others that A1 took the pig. He further testified that A5 had stated that Elias was founding taking a lot of alcohol and that was why he was suspected of taking a pig. PW5 went on to testify that he and others went to arrest A1 but found him already detained by neighbours and he was crying. PW5 had then asked him to tell the truth as A1 was facing the threat of being lynched upon which A1 had confessed and police had been called. PW5 further testified that A1 had identified Rabson, Kule, Moses and Mumbere. He had further mentioned two other persons being Kabugho Alice and Kibingo David who disappeared.

During cross-examination PW5 was queried about inconsistencies between his testimony in court and his police statement to the extent that he had told the police that it was A5 who had stolen the pig. PW5 stated that he had informed the police that A5 was the one who stated that A1 stole the pig and that his statement had not been read back to him. PW5 testified in cross-examination that A5 had confessed to stealing the pig before himself and the Defence Secretary but had also said that A1 had stolen the pig.

Despite PW5 stating in cross-examination that A5 confessed to stealing the pig but had also implicated A1, I found that once again there seemed to be inconsistency about the issue of the disappearance of the deceased’s pig. PW5 did not remember to implicate A5 in the theft of the pig until he was challenged in cross-examination about it. It is also very pertinent to note that according to PW5 A1 identified the rest of the Accused persons under fear of being lynched. This tends to suggest that whatever evidence that was received from A1 was secured under duress and without proper corroboration is automatically suspect.

PW6 Sgt Sooma Perez testified that A1 had been arrested by the community as a key suspect and that during interrogation he had admitted and named other accused persons in the matter. He further testified during cross-examination that he had not found any items belonging to any of the Accused persons at the scene. He also testified that the Chairman LC1 Kithobira had named the accused persons to police. However, the said LC1 Chairman was never produced in Court to testify as to how he came to identify the Accused persons in this matter.

PW7 D/Cpl Bwambale Alfred testified as the Scene of Crime Officer. He confirmed that he had prepared a sketch plan of the crime scene and also that he had witnessed a wound to the breast of the deceased. PW7 went on testify that A1 had admitted to stealing the pig and that they had killed the old woman out of fear. He had then named the rest of the Accused persons as being part of the crime. During cross-examination PW7 stated that A1 had not recorded a confession.

In my view the evidence of the police officers PW6 and PW7 left a lot to be desired. While a sketch map of the scene had been prepared it is clear that no effort was made to visually document the crime scene. Furthermore there was no physical evidence from the scene exhibited in court. This left a lot to be desired especially given the fact that the testimony of the witnesses varied in court with regard to significant details pertinent to the participation of each of the Accused persons in this matter. According to PW3 A5 had told him that he ate the pig with A1 and that when PW3 and others located A1 he had gone on to reveal the other persons involved in the crime. At this point the question in my mind is why A5 would only have named A1 in terms of eating the deceased’s pig if indeed they had eaten the pig with A2, A3 and A4? Why did it take A1 to reveal the other persons to PW3?

The aforementioned questions are even more relevant given that PW4 later testified during examination in chief that A5 had revealed that he and all the other Accused persons had stolen the deceased’s pig and killed the deceased fearing she would identify them. Why then would A5 reveal only A1s involvement to PW3 only to reveal the other Accused persons to PW4?

This leads me to PW5s testimony which focused primarily on A1 as the primary source of information implicating the other Accused persons. In his case as I have already observed he only remembered to refer to A5 stealing the pig during cross-examination.

With regard to inconsistencies and contradictions apparent in witness testimony the Supreme Court has held that,

*“It is not every inconsistency that will result in a witness testimony being rejected. It is only a grave inconsistency, unless satisfactorily explained, which will usually but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies will not usually have the effect unless the court thinks they point to deliberate untruthfulness.”* (see **Sarapio Tinkamalirwe v Uganda – Criminal Appeal No. 27 of 1989**).

In my view the contradictions apparent between the witness’ testimonies as to how the Accused persons came to be implicated in the crime as well the departure in some cases from what was stated to the police leaves me with reasonable doubt as to whether the Accused actually participated in the crime. This doubt is even more pronounced when I consider that there was no forensic evidence exhibited in court. Even the testimony of the police investigators in this matter left a lot to be desired as it is clear that for the most part they simply received the suspects from the community but did little by way of actual investigations to verify the participation of the suspects. For example, it would have been extremely useful to the case to have produced the LC Chairman who spearheaded the arrest of the suspects in order to establish the basis for his suspicion that the Accused persons were actually suspects in the matter.

Furthermore, in as much as the contradictions in testimony relate to circumstantial evidence, I am mindful of the requirement to give such evidence a narrow examination for fear of fabrication. The inconsistencies I have noted in the testimonies suggest to me that the Prosecution witnesses were trying to hold together a story based on their own personal biases in the matter and not the facts.

It has been held in the case of **Waibi v Uganda (1978) HCB 218** that,

*“Although circumstantial evidence is the best evidence, it is trite law that such evidence must be narrowly examined because evidence of this kind may be fabricated to cast suspicion on another. Consequently, before inferring guilt of an accused from circumstantial evidence, it is necessary to be sure that there are no other co-existing circumstances which would weaken or destroy that inference.”*

I am also extremely uncomfortable with the fact that by PW5s testimony A1 was clearly distressed under fear of being lynched when he revealed the participation of his co-accused to PW5. This to me suggests that the evidence of the participation of the Accused persons in this matter was obtained under duress.

I cannot therefore risk basing myself on such evidence alone to determine the participation of the Accused persons in the murder of the deceased. The evidence of participation being circumstantial in nature leaves a lot to be desired in terms of consistency to be safely relied upon for a conviction especially for an offence as grave as murder. Indeed as cited in the **Leonard Mpoma** decision above, Court cannot convict on a charge of murder where the evidence is circumstantial and falls short of proving a charge.

In the case of **Okethi Okale and Another v Republic (1965) EA 555,** it was held concerning the offence of murder the duty is upon the Prosecution to prove its case against the Accused beyond reasonable doubt. Where an Accused person is indicted for murder the Accused has no duty to prove their innocence and the prosecution is expected to prove beyond reasonable doubt that a human being was killed and that the killing was unlawful, occasioned with malice aforethought and that the Accused participated directly or indirectly in the killing.

I therefore find that the Prosecution has not proved beyond reasonable doubt that the Accused persons participated in the murder of Kabugho Daisy.

**ACQUITTAL:**

I was advised by the Assessor in this matter to convict the Accused persons as the Prosecution had proved all the ingredients including participation. However, I disagreed with the Assessor’s opinion to the extent that no consideration was given to the contradictions and inconsistencies that were raised by Counsel for the Accused despite my guidance given during summing up.

I also disagreed with the Assessor’s view that A1 had confessed his participation to PW5. The burden of proving that A1 participated in the murder was always upon the Prosecution and this was why it was crucial to establish whether PW5s testimony was consistent and truthful. It is only upon the confirmation that PW5s testimony was reliable that one could go ahead to determine whether it was sufficient to prove A1s participation.

It was also apparent that no consideration was given to the fact that PW5 testified that A1 was in a distressed state and under fear of being lynched when he spoke to him. Evidence secured under duress is always automatically suspect and ought to be subjected to intense scrutiny and where there is no other corroborating evidence it should be disregarded entirely.

In light of the analysis above I find that in as much as the Prosecution has failed to prove one of the essential ingredients necessary for the indictment of murder, I find the Accused persons Masereka Elias, Kikasa Moses, Masereka Rabson, Kule Yokonia and Mumbere Allan Basimire not guilty of the offence of murder contrary to Sections 171 and 172 of the Penal Code Act.

The Accused persons are accordingly acquitted and are free to go unless held on other lawful charges.

Right of Appeal explained.

**David S. L. Makumbi**

**JUDGE**

**11/12/24**