Uganda v Naftali & 3 Others (Criminal Session Case 101 of 1994) [1994] UGHC 58 (22 September 1994)

Full Case Text

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT SESSION &gt; ..... HOLDEN AT MASINDI *•' ' . '-V-\* CRIMINAL SESSION CASE NO. TQ1/94 UGANDA:I:::::::::::::::::::;::::;:::::;::::::::PRCSECUTION VERSUS A1. NAFTALI BUHANGA 0 A2» KYAKUTEGEKIRE SIMON I: : : : : : : : : : : : : : : : : : : : : :AccvsEI)

AJ. FRANCIS KYALIGONZA Q ' A4. EDWARD SENKANJA .

BEFORE: THE HONOURABLE MR. JUSTICE,I. MUKANZA, JUDGMENT:

The four accused persons namely Naftali Buhaxga A1, Kyakutegekire Simon A2, Francis Kyaligonza A3, and Edward Ssenyonga A4 \*were jointly indicted with the offence of murder contrary to section 183 of the penal code act. The allegations "being that on or aboxt the 6th day of March 1993 between miles tex and eleven on the Masindi Port Road Masindi District the accused persons murdered one Teogras Kaija\* They denied the charge. In an endeavour to prove its case the prosecution called in court the evidence of about eight witnesses. The accused persons did also give unsworn statements and then closed their case.

The prosecutions case briefly was that Bahemuka Yeseri' PW1 was employed as a dispenser at Masindi Port. He knew the accused persons as members of the same village. A1 was the father of the rest of the accused persons.

On 6th March 1993 at around 7«00p>m» he left Masindi Port his place of work to his home at Kaduku. When he reached mile 10 on Masixdi Port Road he heard something being beaten in the bush. He thought an animal was,being beaten.- He abandoned his bicyle bjr the road side and branched to find out what was being beaten. From the bush to the road was a distance of about 10 metres. When he arrived at the spot

where he heard the beating he saw a man 'lying down and at the sametime he saw A1, A2 and A4 standing around, When those people saw him they were shocked and they stopped the beating\* ;W\*'- The three accused persons were armed with sticks as big as his arm. A1 who was armed with a stick chased him some three hundred metres away from the scene and warned him not to reveal what he had seen and that should the witness let out the incident to the public he would kill him.

PW1' s■evidence ~furtherjshowed that the man lying down was not making any alarm or noise. He looked dead\* He was. not given time to look at the man. He could not tell whether" Ke''had sustained any injuries or not. He never recognised him.

That he ran away with his bicycle. He went home using another route. He told his wife what had happened. \*'our days after the incident the witness together with very many people went to collect the body from the bush. That was the -very spot where he had seen A1, A2 and A4 at the bush. The man then found at the bush was Teogras Kaija.

On being cross examined by the counsel representing the accused person PW1 replied that because of the warning by A1 he kept quiet. He never reported the matter anywhere and even whethe he attended/burial he never revealed the matter to anyone viz to the police and the RCi of his area. He saw the accused on 6th October 1993 and revealed the information on 13th instant. That the man had his hands tied behind and was lying facing the ground. v

The evidence of PW2 Dr. Ignatious Stuart Aminu was to the effect that sometime in March 1993 around the middle he was at Kiryandongo Hospital. On 14-th March 1993 he carried out a post mortem examination on the body of one Teograss Kaija. The body was found lying in the forest near amurram road around Kaduku village. Its legs were tied with sisal rope near the

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uncle joints both arms wer4 also tied twice into two positions, one went to the wrist and some were near the elbow. Both arms were tied behind the back. The mouth was tied with trousers of the deceased. There was a dark long trouser and a darkened previously stripped shirt consisting of red white yellow and blue colours which had faced away. The blood had made the clothes turn black. The flesh was eaten up apparently by wild pigs and only bones were remaining.

The cause of death'was not easily established but the fact that the mouth was tied with a cloth and both arms and legs were tied with ropes and arms were tied backwards that indicated that violence was used on Teograss Kaija; His evidence further showed that there was ablood stained wooden club lying nearby. The doctor concluded that Teograss met his death through violence and the body was identified to him by Ndozereho.

The third witness called by the prosecution was Markola Walyero PW3- He testified that he knew A1, A2, A3 by face but he did not know A4. He knew the deceased. The latter gave him some money to purchase cows for ploughing. He bought 3 cows for him and kept the same for ploughing. Both of them used the cows for ploughing.

On 15th March 1993 when A3 called on him A3 ' told him that Kaija the deceased had sent him . A3 to collect the cows. He . refused to deliver the animals to him. A3 went away. After two days A3 returned to him with another brother not one of the accused persons (A2 and A4). A3 said Kaija had sent them to collect cows. They were demanding for all the animals. A3 reported to him that Kaija was sick. He refused to hand over the animals. He investigated the information that Kaija was sick. He received information that Kaija was not at home. They started looking for him. The body of the deceased was later brought to his home for burial. ... A.

On the following morning he reported the incident to the R. Cs of the area. He reported that he suspected A3 to have known why his friend Kaija had "been killed. A3 was interviewed hy the R. Cs and that was eventually arrested, The other brothers wanted to find out how A3 got arrested, A1 was also there. They contacted theR.'C.s, That was the moment when A1 and his sons got arrested but the ILC.s had urged him to leave the natter.

Before the incident the deceased had never sent the accused persons to collect the animals. He never had any dealing with A3 and his brothers regarding Kaija's animals. He had not heard of any news that Kaija had died before those boys went to bin.

In cross examination PW3 contradicted himself. He testified that he had known A3 before because Kaija brought him (A3) to the witness with a view to teach him how to plough with the ai d of cows. He taught him for only one week and when he came to collect the animals it was during ploughing period.

PW4 Kisembo Oliver wi-fe of the deceased had this to say that she had known the accused persons for 13 years. A1 is the maternal uncle of the Teograss Kaija. A1 and the deceased were not on good terns. The two used not to greet each other.

When one Gawera a' brother to A1 passed away, the latter blamed the deceased to be • responsible for .his death and said that it was only the deceased remaining. Some times her husband was poisoned by A15 Kaija did not pass away he was given some medicine and he recovered. Sometime later two of • his children died. He attended the burial, A1 and the deceased were urged by the public to reconcile. Thfey complied.

They were peaceful for sone tine. Later A1 lost a child\* ' The witness with the deceased went to attend burial. There A1 produced a spear. He wanted to spear the accused. A1 chased him away. The deceased was accused of having caused the death of A1's child, on seeing her husband chased away she also left.

Brom that moment the grudge developed. The deceased was poisoned for. a second time when tairing medicine. It was a woman

who did that. The deceased was still given some medicine and he recovered.

Thereafter A3 started working for the deceased using the plough with the cattle. But there vzas still another incident when A1 lost a daughter in February 1993 still her husband was suspected. A1 threatened that whoever had killed his A1\*s) daughter was not going to **live \*** longer.

Her husband was a cultivator and vzas also a businessman on small scale. On 5th March, 1993 left for Miniengo, He ivas taking maize flour for for sale. Ke was su posed to return on the following day. He never made it. He was putting on a light green trousers and a red striped shirt and was riding a bicycle.

Later A3 came to the home where the animals were kept. He wanted to collect the animals, Juma Ssali alias Makoha refused to deliver the animals in the absence of the deceased. When the deceased could not return home they started looking for him and matters were reported to the authorities.

The fifth witness PW5 to testify for the prosecution was Grace Atugonza. Her testimony was to the effect that she was married to A1's son called Byenkya, Al was his father-in-law whereas A2, A3 and A4 were her brothers in law and A1 was staying together with the accused persons.

In February 1993 while she was together with "Byenkypin their-' house A1 called for him, Byenkya complied but did not come back soon. He stayed there for a long time. She went there in order to find out what had happened. She found A1 together v/ith his sons A2y A37 A4 and Byenky-at A1 instructing accused generally to go and kill Kaija. Those people were talking of killing the deceased when she heard that she got frightened and went back home. **Then** Byankya started quarrelling with him.

On the following day she told Bynkya ' that she\*, was going. to , VISIT her mother. Since then she had never returned and **Byejakya** had never followed her and since then gyenkya escaped.

Later she heard that Kaija had died. She never reported anywhere

The evidence of Balikagira William PV76 was that he was the Vice Chairman IL C. III. On 13th I.larch 1593 he went in the bush to collect poles for his house. The time was between 1.00 p.m. and 2.00 p.m. while there he come across a dead body. He abandoned whatever he vzas doing and went and reported the matter to the R. C. I who gathered people and they all proceeded to the scene. One Ndozereho identified the body as that of Teograss Kaija. The body had been tied with ropes and it was lying on its face. The body was decomposed.

The evidence of PW6 Ndozereho William was to the effect that the deceased was Ms brother and took part in looking for him together with others on learning that he vzas missing. Later he identified the body to the Doctor who carried out the post mortem.

PW8, Epoter Ocapiri was the chairman 17C. I Kaduku on receiving a report that a dead body had been found in the bush he mobilised the public. They went there they reported the natter to the police and the doctor who carried out an autopsy.

In his unsworn statement A1 as DV/1 stated that A2,A3 and A4 were all his children. Ke knew one called Kaija, on 6th ZGarch, 1993? he was at his home where he had been sick for a week. While there Joyce her sister went to him and asked him to borrow a bicycle to go and look for the deceased who had not returned. She told Joyce the bicycle was not in good mechanical condition. She left for Jackson\*s. home and never saw her again.

In April he learnt that his son had been talcon away/the R. C.s. on the following morning \* R. C. I. chairman and secretary for defence went for him? They did not tell him why they were arresting hiu. On the way they were put on vehicle and were driven to Kiryandongo where he found his sons. They were later referred to JSasd.ndi Police Station.

•. . rHe knew one G-awera. He was admitted in Masindi Hospital and used to take food to those people attending him.. he died at home. .........../\*7 ,

That at one time she lost two children two girls. One was aged 27 and was a teacher. He did not suspect anyone to have bewitched them. He denied chasing Kaija with a spear and also denied poisoning him. He dismissed the evidence of Eyaligonza Grace PW5 as lies. That he had never together with his sons threatened to kill one Kaija and also denied the allegation of Yeson Bahemuka that he found Ilin together with his sons in the bush, and the body of the deceased lying down as lies. He should have reported him to the authorities.

A2 as DV/2 was a pitsawyer. He knew all the accused persons. He stopped woridLng as a pitsawyer because he was arrested. He knew Kaija and learned of his death on 11/3/93- He attended the funeral and remained there till the body was brought. After a month he attended a meeting at Kaija's place. He found there A3, got>R,C. I. committee members7 brother to the deceased. The R. C.s tied wanted to know who had killed the deceased. A3 and Got were^with ropes. He was told to go and collect his brother1^ clothes. They were later arrested and finally taken to Kasindi Police Station.

A3 as WJ stated that he knew the accused persons and one Kaija. He used to plough for Kaija together with the latter's son called Robert, The last time he saw Kaija the latter told him to go and collect the cows from Juma Ssali but the latter refused to deliver the animals to him. He went and reported to Kaija's wife. He had collected the animals from Juma Sali on very many occasions. When he went to collect the animals he had not received the information that Kaija was missing. Later the body of Kaija was found in the bush and he went there together with very many other people.

The body was taken for burial later on a Saturday 9th April, 1993 R. C.s chairman one Katovu went to arrest him. They urged him to go to a meeting. They went to Kaija's There the authorities wanted to find out who had caused the death of Kaija. He together with his brother Goti and A2 were arrested tuken

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to ITigumba Police Post, Later they were transferred to Kiryandongo Police lost and fj.na.ly to SSasindi Police Station,

In liis evidence A4 as BW4 stated that he owns a bar where he used to sell Tonto, While at Balikwa's place he received infon.\*ation that Kaija's body had been found in the bush. His evidence as to what was at the scene is sijnilar to that of the prosecution witnesses and the accused persons.

On 30/4/53 the police together with the R, C,s went and ' arrested him. lie denied discussing with the rest of the accused persons to kill Kaija.

Having summarised the case for both the prosecution and the " defence I now proceed to evaluate the evidence. However before I did this I directed the gentlemen Assessors as I directed Byself then that in criminal cases the prosecution has the burden to prove the guilt of the accused persons beyozid reasonable doubt. This burden does not shift except in a few exceptions the instant case not being one of those exceptions see Wpp.lhjiingt.o^. vs .... BHg 1935 AC at P 462 sec also Ifatcsasira Eliza and another vs. Uganda, J5.78J1CB\_P.\_. Also still on tliis burden of proof in criminal cases it is the constitutional duty of the prosecution to prove the guilt of the accused person beyond any reasonable doubt and the burden does not shift to the accused person except where the law expressly provided so. See article 15 (2) (a) of the 1567 c oils tituti on,

With that burden of proof .resting on the prosecution the latter has got to adduce evidence to prove the foS-lowing ingredients of tills charge of murder first the prosecution has to prove that Kaija Teograss io dead secondly it must be shown that tne killing was unlawfall. Third it must be proved that the killing was with malice aforethought and finally j t has to bo established that it was the accused persons who participated in the killing that they caused the death of the deceased. As regards the first ingredient whether the accused is dead. The evidence over this ingredient is over whelming. Thera was the evidence of PW7 who identified the body to the Doctor PW2 who carried out the Post mortem examination although the cause of death vzas not established the fact remained that Kaija was found dead in the bush, There was in addition the evidence of PW4 the wife of the deceased who testified to the effect that her husband was dead. Besides her testimony there vza.s the evidence of PY/6 who had gone to.collect poles in the bush and found Kaija's body there. Even the IhC. I, of the area PW8 saw the body of the deceased. And to crown it all the accused stated positively in court her that feograss Kaija w^s dead. In the end tho prosecution has proved tlic.t Kaija was no longer alive.

As to whether the killing was unlawful it is trite law that homicide unless accidental is always unlawful except when committed in circumstances making it excusable sue RVS Bussmbizi Wesonga 1948 15 EACA P 65>

As testified to by the prosecution witnesses the body of. the deceased was found in the bush. It hud its hands tied behind the back. The legs wore also tied and tho mouth was gagged with some clothes. So that he could not escape or make an alarm, The deceased passed away under those circumstances. Definetely the attack on the- deceased was not accidental and was not committed in circumstances making it exocusable. The killing was therefore unlawful.

The third ingredient would have been what was the cause of death and whether there- was malice aforethought as stipulated under S, 186 of the Penal Code Act,

To begin with the cause of death was not established. The doctor PW2 who carried out the post mortem examina/bion testified that the cause of death, could not easily bo established but was of the view that since tho month wus tied with clothes and both

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arms and legs /zero tied with ropes\* bhat indicated that violence was used, . Phcrc is however a proposition of law to the effect that death and the cause of it could be established otherwise then by medical evidence, That is not necessarily fatal if there is other reliable ae.cl satisfactory evidence to prove then see Republic vs, Cheeye and another 1573 BA P, 500 Komveri v, Republic 1968 EA p. 452 JMgnda.

What could. \*bo deduced from the prosecution evidence more so from the observation of PW2 is that the deceased died as a result of violence.

As to vzhethor the killing was with malice aforethought\* the general principle of the law is that malice aforethought flows very readily from. the nature of the injuries inflicted on the victim. The type of weapon used and the vulnerable part of the bod • on which it is uod- However this is not always conclusive evidence since each, case has to be decided on its own fact see R. VS. 12A5..i2.. EA\_oi>f-P« vs. Sharmal Sugh S/o. Prit Suigh 1962 BA P. 13 San Lutaya vs. Uganda C'r.. APP 1'10. 10/86 SOU. Bukenya and others vs. Uganda 1972 EA P,549 Sesawo vs. Uganda 1979 HOB P. 112 nkadclio s/o Lomuli vs, P. 1959 EA 168.

In the instant case the nature of injuries inflicted on the victim is not known\* The body was decomposed and injuries could not bo recognised. Also the type of weapon used and which part of the' body was injured was also not established. But the fact that the body was found in the forest" with both legs and hands tied and the mouth, gagged with trousers and shirt that was evi.do.nce of malice aforethought. VThoe ever did that did not want the deceased to make an alarm when being assaulted so that he could . be rescued and equally whoever tied the deceased[\\*](#page-9-0) 1 s foot did not want him to run away when he was being battered to death. I say that ho was bettered to death because PV/2 who had gone to carry out the post mortem examination on the' body found at the scene a club stained ; with blood. So in'conclusion whoever killed the deceased had the requisite ralico ^fe-^thought as

stipulated undur 3. 186 of the Penal Code Act.

This now brings mo to the last ingredient of this case whether it was the accused person who murdered Teograss Kaija. To begin with the evidence over this matter is circumstantial and a hit direct. I will endeavour to illustrate on this, PW1 Bahemuka Yeseri in Ills testimony testified that on bis way home from Masindi Port heard the beating from the bush. Ke branched and saw A1 together vzith his 2 sons A2 and A4 standing infront., of a man lyi-ng down who looked dead. A1 and his sons were shocked immediately they saw him. They stopped the beatin,.,. In fact P¥/1's evidence show that he did not see the accused person^. assault/beat the deceased. PW1 was chased away by A1 who threatened to kill him if he revealed what he had seen. This happened on 5th March and according to him when he met the accused in the bush Kaija had been missing for .4 days. The body was then discovered on 13th March, 1953 by PW6 who reported to PW7 and . together with people/organised proceeded to the scene / t PW1. The latter testified that he did not report the matter to the authorities because of the threat by A1 to kill him It is inconceivable that PW1 in his station in life a whole dresser could .not report such an important incident -^ny where-. A1 was an ordinary man on the village with no authority at all I see no reason why he kept quiet for a whole wook and only chose to devulge the information when the body was discovered in the\* forest. I am of the view that were thereisome half truths told to the court by PV¥1, A1, A2 and A4 denied the allegation and put an alibit as a defence to the charge that they were else where on that day- The burden was on the prosecution to destroy the alibi by placing the accused person at the scene of crime. See Sel.itoleko vs. Uganda 1967 EA 531. Did the prosecution discharge that burden.

The other evidence against the accused persons cane from Kisembo Oliver PW4 and Grace Atugonza I:W5. PV/4 testified that A1 threatened to kill the deceased because he accused him of

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having been responsible for the death of his children and even at one occasion, threatened to spear liim, A1 denied all these accusations and st?-ted that one Gav-era died of natural death. Gawera was hospitalised in ITasindi hospital\* whereas his two children were not bewitched by any one. I watched the 2 witnesses in the Hock PW4 was doing everything possible to incrinate this oldiaan but I seemed to'believe PW1 over these allegation. It is true some attempt was made\* to reconcile the two but none of 'those people involved in the exercise was called by the prosecution. . The ether piece of evidence against the accused persons came from PV75 Atugonza Grace. This lady testified that she was married to Byankya s.n of A1. They were living near each other. One day A1 ca? led fur Byenkya. The latter delayed there very much. PW5 was concerned about the delay, She went to find cut what had gone wrong only to hoar A1 instructing his sons A2, A3> A4 and Byankya to g? and kill the deceased. She talked to Byenkya after\* the latter had returned from the meeting only to be slapped by the husband, She left for her mother's place and since then she separated with the said Bye.nkya.

PW5 did not report this incident to any of the authorities plus her mother despite the fact that she was no longer living with Byenkya. what was this fear for ?? I soon to agree with the for submissions of the learned cow.?.sei appearing/the accused person that J?W5 wanted to put Byenkya and A1 in trouble because of the lost love.

It would appear BW4 fabrics.ted the stories. They were after~ thoughts.

Moreover the evidence for prior threat or of announcement to kill is always admissible evidence against a person accused of murder but all probative value varies greatly and may be very small even almost to nothing. . regard must be had to .the manner in which a threat is uttered! viveth^r it is spoken bitterly or

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impulsively in sudden anger or jokingly and the reason for the threat if given and the length of time between the threat and the killing are also material, being' admissible as being evidence tending to connect the accused person with the offence charged see Waibi and another vs. Uganda 1968 EA P. 278.

. In the instant case it was not shown in the testimony of TW5 whether the threat to .kill was spoken bitterly or iiapusivoly by A1 in sudden snger or jokingly and the reason for the threat was not shown by PW5 and even the length of time between the threat czd the killing was not shown. . She testified that it was in ' February 1993 when A1 made the threat and the deceased passed away on 6th liarch 1993\* The period appear to be a. long one.

The evidence to connect A3 with the commission of the offence came from PW3- The latter testified that before the incident Kaija had never sent A3 to collect the .animals from P?Z3 and that he .had never had any dealing with him. lie reported A3 to the authorities because he suspected him. to have had a hand in the killing of tee deceased beause of demanding the animals when i" fact Kaija was no longer living. When cross examined (A?) PW3 conceded that he had known tee accused ^efore because Kaija had brought A3 with a view to teach him. how to plough. -lis evidence in cross examination seen to be consistent with the evidence of Kisembo PW4 who testified that she knew A3 and used to week for Kaija when ploughing while using the animals.

The evidence of P?Z3 was full of contradictions and incosistenccs and could not be relied on.

As I stated earlier the evidence relied on by the prosecution was mostly circumstantial siz.ee there was no eye witness to the assault of the deceased\* In order to justify a conviction on circumstantial evidence the inference of guilt., the inculpatoryfact must be incompatible with the innocence of the accused person and incapable of explanation upon any reasonable hypothesis than that of guilt. The burden of provin(J^±R.ci to justify the ... ./14..

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the drawing *of* the inference of guilt from the facts to the exclusion of any other reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused persons see Simon Vs. 1358 j?. 715 Taper V. 1952 EA 486, This burden unfortunately was not discharged by the prosecution,

Moreover where a number of persons jointly beat another person causing his death and it is not possible to establish which blow actually caused the death none of the persons taking part in beating may be convicted of murder unless it is proved they had the coilion intention to kill as stipulated under 3,22 of the Penal Code, Mo evidence direct or circumstantial has been adduced to prove the accused had toe requisite common intention to 2d.ll.

Be that as it may> in the case of Sentongo vs. Sebugwawo 1975 HCB 200 it was held that where a deceased is beaten with sticks as appeared to be in the instant case and the sticks are not produced in evidence careful description of the sticks is necessary if only to assist the court to determine whether the instrument used in the murder was intrinsically lethal weapon or not. Similar view was held in the case of Komiswa vs. Uganda 1979 HCB no description of sticlzs used in killing the deceased was given^tlJe prosecution witness, It is not known whether they were lethal or not.

Brom what has been explained above it is the considered opinion of this court that the prosecution has failed to prove beyond reasonable doubt that the accused died at the hands of the accused. The police never even made any effort to collect some of what I would term *as* essential exhibits at the scene. The trousers and shirt which according to PW2 was found gagged in the deceased1 s mouth. The club which vzas found at the scene stained with blood and even the ropes used in tying the deceased. This could have gene a long way in bringing in picture how the scene looked like and the circumstances under which the accused met his death.

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In the end the accused are acquitted of the charge and unless they are being held for any other offence I order for their immediate release\* I did not agree with the gentlemen assessors opinion to convict the accused as charged because they did not up consider my simmiingf notes more so as regarded the burden of proof and also the gentlemen assessors never considered the defence case.

JJTJ) G 22/9/1994 ' i- fN - ' v 2 &gt; I. M0I5AiIZA,/\

22/9/94 ASSESSORS All four accused persons present. Mr. Kabali for the state present. Mr. Isingona on state brief for the four accused persons present. Mr. Geoffrey Ogentho present

and Mr. Obala Claris present.

COURT: Judgment is read and signed in. the open court.

22/9/1994.