Uganda v Nahabwe alias Murema and 6 Others (HCT-01-CR-SC 4 of 2010) [2012] UGHC 413 (17 February 2012)

## THE REPUBLIC OF UGANDA

TN THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL SESSTON CASE NO. HCT-O1-CR-SC-OO4 I zOtO

UGANDA : r : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :PROSECUTOR

## VERSUS

- I. NAHABWE LIVINGSTONE ALIAS MUREMA - 2 TAMWESIGIRE PENINNAH - 3 ORISHABA LOVE

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- 4 NIIWAMANYA GRACE - D BYAMUGISHA SILVERIO - 6 TURYOMURUGYENDO IVILLY - 7 MUHUMUZA BEN

## BEFORE: HON. JUSTICE BYABAKAMA MUGENYI

## JUDGMENT

The seven accused persons named above are jointly indicted with two counts of murder c/ss 188 and 189 of the Penal Code Act. It is alleged that on the 10th day of April 2OO9, at Kamusenene village in the Kamwenge District, they murdered Beshobeho Amos in Count I and Kashaija Francis in Count II. They all pleaded guilty, hence this trial.

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ACCUSED

Briefly, the prosecution case is that the first deceased, Beshobeho Amos, had domestic misunderstandings with his wife, Tamwesigire Peninnah (A2), his children Orishaba Love (A3), Nuwamanya Grace (A4), and Muhumuza Ben (A7). He had a land dispute with his nephews, Nahabwe Livingstone (A1) and T\rryomururyendo Willy (A6). He also had land conflicts with Kashaija Mephas, a neighbor. The second deceased, Kashaija Francis, was a friend to the first deceased. Numerous attempts to resolve the said conflicts were made with little or no success. On the night of lOlal2Oo9 the deceased persons were killed by unknown persons in the house of Beshobeho Amos, the Iirst deceased. An alarm was raised and the local residents gathered. Many accused persons were arrested the following day. Nahabwe Livingstone (A1) confessed to the crime in his charge and caution statement and also implicated his coaccused.

The accused persons elected to make their respective defences under oath save for Tamwesigire Peninnah (A2) who made an unsworn statement. In a nutshell, each accused denied participation.

The burden of proof in a criminal case rests on the prosecution throughout and this does not shift to the accused. The ingredients of the offence of murder are:

1. Death.

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2. Unlawful act/omission.

3. Participation of accused.

4. Malice aforethought.

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I propose to deal with the lst,2nd and 4th ingredients altogether since the defence did not dispute them.

There is overwhelming evidence both deceased persons are dead. Their bodies were discovered in the house of the 1"t deceased, Beshubeho Amos. Post mortem examination on the two bodies was conducted at the scene by Mbabazi Denis (PW2), a Clinical Officer, Rwamwanja Health Centre III.

The body of Beshubeho Amos had bruises and a long circumferential mark around the neck. The cause of death was strangulation which led to the blockage of the trachea that resulted in cut off of blood supply to the brain, hence death.

In his opinion, the circumferential mark around the neck could have been caused by a rope.

The body of Kashaija Francis had a cut wound and bruise on the face as well as a circumferential mark around the neck. The trachea was broken. The cause of death was strangulation leading to cut off of air supply to the brain. Both bodies were in the same room. The examination was carried out on lll4l2OO9.

From the medical evidence and the evidence of other witnesses who viewed the bodies, it is clearly evident both deceased are dead and their death was caused by an unlawful act. The neck being <sup>a</sup>

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sensitive part of the body, there is no doubt in my mind whoever strangled the deceased persons had the requisite malice aforethought. The first, second and fourth ingredients are therefore proved.

The contentious ingredient is that of participation. The evidence adduced by the prosecution is wholly circumstantial. The law is that circumstantial evidence must always be narrowly examined. It is necessary before drawing an inference of guilt from circumstantial evidence to be sure that there are no other coexisting circumstances which would weaken or destroy the inference. See ?EPER VS R [7952] AC 48O, S. IMON IfiUSOKE yS R [19581 E. A. 775 and TINDIGWIHURA MBAIIE vS UGANDA Crlmlndl Appeal No. 9/87 (SC).

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Generally, in a criminal case, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the accused. See MURETBA JANET & 2 ORS yS UGANDA CR. APP. NO. 73/2OO3 rSCr.

In R V KIPI<ERING ARAP I(OSI(E A.ilD AJVOR [19491 76 EACA I35, it was stated that in order to justify the inference of guilt on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

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In the instant case, the case of the circumstantial evidence are the well-known conflicts/misunderstandings that Beshubeho Amos (1"r deceased) had with various people, namely:

- 1- His wife, Tamwesigire Peninnah (A2), her children (A3, Aa and A7l. - 2- His nephews, Nahabwe (A1) and Ttrryomururyendo Willy (A5).

3- His neighbor Kashaija Mephas (not in court).

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I will now examine these instances in detail and the evidence thereof. They are largely borne out of the evidence of TWinomujuni Patrick (PW4), Kataraiha Stephen (PWs), Byamugisha James (pW7) and Jackson Kiceceka (PW8).

TWinomujuni Patrick (PW4) told court the deceased, Beshubeho Amos, was his father-in-law. Earlier on, the said deceased had informed him his wife, Tamwesigire Peninnah (A2) together with other family members were plotting with Kashaija Mephas to kill him deceased. That he did not tell him the reason they wanted to kill him. On26l3l20O9, Orishaba Love (A3) Iled her father,s home (Beshubeho's) ald came to PW4's home. She told him she had left their home following misunderstandings with her deceased father. On 28/312009, PW4 escorted 43 back to her father's home. An impromptu meeting was held to sort out the matter between the two. [t was attended by the witness (PW4), Orishaba (A3), T\rryomubagenyi, Kakwenzire, Beshubeho (1", deceased) and Kashaija Francis (2"d deceased).

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It transpired in the meeting that the l"t deceased had admonished his daughter (A3) for not looking after the cattle well which prompted A3 to abandon the home. He was asked to forgive her as she was still young.

The above episode was confirmed by Orishaba Love (A3) in her testimony to court. She however stated it was her father who chased her away for not grazing the cattle properly. The matter was resolved in the said meeting and she had no problem with her father after that.

Twinomujuni (PW4) informed court further, that during the meeting, Kashaija Francis (2nd deceased) informed the 1"t deceased that his family had offered him Shs. 50,000= to kill Beshubeho but he declined because Beshubeho was his friend. That he (2na deceased) advised Beshubeho to be careful. PW4 also touched on the conflict between Nahabwe (A1) and T\rryomururyendo (4,6) and their uncle Beshubeho, whereby the two accused wanted an access road through their uncle's farm which he had declined.

The other witness was Kataraiha Stephen (PWs), the Chairman L. C. I of the area. He testilied that Beshubeho Amos had a conflict with Kashaija Mephas resulting in a court case which raged on for <sup>4</sup> years. One time the two even had a fight at the Trading Centre. At the time of Beshubeho's death the matter was sorted out and the two had become friends.

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Kataraiha (PW5) also testified on the domestic misunderstandings in Beshubeho's family that resulted in his wife (A2) abandoning their home. At the time of his Beshubeho's) death she was living with her daughter, Nuwamanya Grace (A4). Efforts were made by one Eriasi Muhangi, a Police officer, to reconcile the couple to no avail.

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PW5 also told court that on the 20/4/2009 at about midnight, Nyakato, one of Beshubeho's children, came to his home crying that their home was invaded by many people she did not recognize who entered her father's bedroom. He proceeded to the scene and found the two bodies inside the house. All the accused were present and wailing.

Byamugisha James (PW7) testified that Beshubeho had a land dispute with Kashaija Mephas. This was followed by a case of assault and the case was still pending at the time of his death. There were also misunderstandings with his wife (A2) and the children. That A'2 wanted the property to be shared out. <sup>A</sup> Community Liaison Officer presided over the matter and it was resolved in favour of the deceased Beshebeho.

PW7 went on to say, a few days later Nahabwe (A1) and T\.rryomururyendo (A7) uprooted the fencing poles on Beshubeho's land with the aim of creating a way. He and other residents gathered at the scene in a bid to resolve the matter. Beshubeho and Peninnah (A2) were also present. Beshubeho tried to show his two nephews where they could make their road but there was no

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agreement. He stated further, A2 and A7 said they were no longer going to report any'uvhere and they knew what they were supposed to do. This was two weeks before Beshubeho was killed.

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Kiceceka Jackson (PW8) told court that one time the deceased, Beshubeho told him about a dispute he had with Kashaija Mephas and that the latter wanted to kill him. He (PW8) and others tried to reconcile them with little success. After two weeks Mephas Kashaija and two other people assaulted the deceased, Beshubeho.

PWS further told court that a month later Beshubeho invited him to his home to settle a dispute in his family. Beshubeho told him his family had teamed up with Kashaija Mephas to kill him. He spent the night at the said home and tried to reconcile the deceased with his wife (A2) and daughter (A4). He counseled them and left.

Thereafter, on another day, PW8 came across A2 and A4 at Bishozi market where they told him they were going to kill Beshubeho. He advised them against such act and went away.

PWS further told court the deceased came to his home again and told him Nahabwe (Al) and T\rryomururyendo (A6) uprooted his fencing poles. That attempts to resolve the matter had failed. He went on to say the following day, Muhumuzas Ben (A7) came and told him if he does not assist his (PW8) friend Beshubeho, they were going to kill them.

PWS also testified that on <sup>7</sup>I <sup>4</sup>/2OO9, a T\resday, he met Beshubeho at Nkonwa market and he told PW8 that he was going to die,

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because Peninah (A2), Nuwamanya (A4), and Katabazi's children (A1 and A6) had teamed up with Mephas Kashaija to kill him. On Friday lll4l2oo9 he (PW8) received information Beshubeho was killed.

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In his sworn defence, Nahabwe (A1) denied being at loggerheads with his deceased uncle (Beshubeho). He also refuted the assertion that he and A7 wanted to create a way through their uncle's land.

Tamwesigire Peninah (A2) gave an unsworn statement. She admitted she had left her husband's home and was staying with Nuwamanya (Aa) at the time of his death. She attributed her separation to the deceased, Beshubeho's stubborn refusal to disengage from conflicts with other people including Kashaija Mephas. She refuted Kiceceka's evidence that she made utterances threatening to kill her husband. That he (husband) had told her if she insisted he reconciles with Kashaija Mephas she should leave his home,

Orishaba Love (A3) also confirmed the conflicts her father had with Mephas Kashaija. The others were Katazi and his children (A1) and A6), as well as Byamukama the elder brother to Beshubeho and Katabazi. The differences with Katabazi forced him to shift to Mubende but his sons (A1 and A'6) remained behind conflicting with Beshubeho. Orishaba (A3) also mentioned that her father and mother (A2) had differences but she did not know the cause.

> 9 01 Nuwamanya Grace (A4) testified on oath and stated she was on good terms with her deceased father, Beshubeho. When her marriage failed she returned to her father's home but he told her she could not stay at his home. She bought a piece of land and her father added her another piece. She erected a temporary shelter where she lived till her arrest. Before the arrest her mother (A2) came and lived with her after separating from her father. She too talked of the conflict her father had with Mephas Kashaija over land.

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Byamugisha Silverio (A5) told court he is not related to any of his co-accused or the deceased persons. He did not have any conflict with either of the deceased.

T\rryomuruS,endo Willy (46) told court the deceased, Beshubeho was his uncle. That the deceased at one time blocked the path leading to the well but the matter was resolved by the local authorities. He had no problem with him at the time of his death.

Muhumuza Ben (A7) for his part denied having misunderstandings with his father, saying he was the one paying for his education. He refuted the evidence of Kiceceka (PW8) that he made utterances threatening to kill his father.

From the evidence of both sides, it is clearly evident Beshubeho had conflicts or misunderstandings with various people including some of the accused persons. While motive is irrelevant it becomes <sup>a</sup> relevant fact in determining intention. See UGAJVDA V BARIKUNDA

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s/o RWEBANDA [1985] HCB 72 AND TINr{AbTALTRWE & AJVOR y-UGANDA [1988-90] HCB 5. The question for my consideration is; whether any of the persons stated to have had a grudge with Beshubeho were, singularly or jointly, responsible for his death and that of his friend, Kashaija Francis.

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I will begin by examining the evidence of alleged prior threats to kill Beshubeho. This is borne out of the evidence of Kiceceka Jackson (PW8) who implicated Tamwesigire (A2), Nuwamanya (A4) and Muhumuza Ben (A7). I have already highlighted the instances of the said threats and when they were allegedly made by the said accused persons to PWS. This is what he said about A2 and A4 in his evidence-in-chief.

KLater I came ccross Penino,h qnd Nuuqmanga dt Bishozi mqlket and theg told me theg houe falled to und.erstand Beshubeho and theg onlg thing theg were going to do is kill hin. I told thern lnstead oJ killing htm theg should abide bg the outcome of the efJorts of the Pollce oflicer lrom Kamuenge. I counseled them and utettt autag."

As regards Muhumuza (A7) this is what PW8 stated;

u......... the followtng dag Ben Muhumuza cdme dnd. told. me if I don't assist ng friend, Beshubeho theg were going to kill htm. I aduised him thqt since he ls a student he should not get entangled in the differences between his

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## father and. mother. I hope uho:t I dm squins is beinq recorded. (the underllning ls mg own ernphasis).

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The last underlined sentence is, in my opinion, a pregnant one. It appears to suggest PWS was out to achieve a certain mission, what he did not want to leave anything to chance. During his testimony I observed that PW8 gave his evidence in a forceful manner and appeared to be laboring hard to convince the court. In my view, his evidence ought to be treated with caution.

Firstly, I find it quite odd that the said accused persons went proclaiming to him that they were going to kill the deceased, and they appeared to be pleading with him to talk to him before. Secondly, Kiceceka (PWS) did not report to any authority about these serious threats to Beshubeho's life, yet the accused persons allegedly made the utterances to him (PW8).

In cross-examination he stated he did not report to Police because he was not the target.

In his testimony, PW8 projected himself as a person who was very close to Beshubeho and cared for his well being, to the extent he spent a night at Beshubeho's home trying to reconcile him with his wife (A2) and daughter (A4). Furthermore, Beshubeho told him, on more than one occasion, that his family had ganged up with Kashaija Mephas to kill him. That the last time he met him was on <sup>7</sup>l4l2OO9 at Nkonwa market, whereby Beshubeho told him he was going to die, saying Peninah (A2), Nuwamanya Grace (A4), and

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Katabazi's children (Al and 46) had teamed up with Kashaija Mephas to kill him. PW8 went on to say, Beshubeho requested that the moumers should sing Hymn 114 at his funeral. Beshubeho died three days after. Again PW8 did not bring the matter to the attention of any authority, despite the grave fears of his friend.

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Another factor that casts doubt on the credibility of Kiceceka,s evidence is the contradiction regarding where he met peninah (A2) and Nuwamanya (A4) when they reportedly made the threats against Beshubeho. In his evidence-in-chief, PWS stated he met the two accused at Bishozi market But in cross-exafilination he stated, after it was put to him, that the nearest market from Kamusenere village is Nkonwa and added that is where he met the accused. According to Tamwesigire Peninah (A2) Bishozi market is very far from their home in Kamusenere and to get there one has to pay transport charges of Shs. 6,000=. She denied ever stepping in the said market, stating the nearest market is at Nkonwa. Nuwamanya Grace (A4) also stated as her mother (A2) above. She went on to say she could not have spent the night at her father,s home as stated by PW8 since she had her own house and kibanja.

In my view, Kiceceka (PW8) was not an entirely truthful witness. Bishozi and Nkonwa being so far apart, he could not have merely slipped by mentioning one place instead of the other. I also wonder why it was him alone that A2, A4 and A7 chose to express their intentions to kill Beshubeho. I disbelieve his evidence regarding the

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utterances attributed to Tamwesigire (A2), Nuwamanya (A4) and Muhumuza (A7).

The other evidence concerns Beshubeho's expressed fears to Mwinomujuni (PW4) and Kiceceke (pWS) that his family and Katabazi's children had ganged up to kill him. The issue is whether this evidence is admissible. This situation is similar to the scenario in ISAIVGA LAZARO & 2 ORS VS UGANDA CRIMINAL AppEAL NO. 19/99 where the deceased's wife, Nabirye, gave inter alia the following bvidence at the trial:

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"There hq.d been a dispute between mg late husbqnd q,nd the father oJ the qccused uho used. to come to our home qnd. insult mg husband otrcr the same land. wheneuer he utas dntnk. At one time mg husband told. rnel ,,these people utant to kill me because I am the onlg son of mg father and, if I d.ie automaticaflg theg will take the land,, he was referring to the three accused persons.r,

In considering the above evidence, the supreme court stated that, what Nabirye said in the second part of her evidence that her late husband told her about the people who wanted to kill him was inadmissible hearsay and ought not to have been relied on against the two appellants.

In the instant case, I should add that what Bashubeho told pw4 and PW8 did not amount to a dying declaration, for it was not made

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in expectation of death, on account of any injury inflicted or threat to his life by the mentioned individuals.

The next question for my consideration is whether all the persons who had grudges with Beshubeho, can be said to have shared a common intention and participated in intentionally killing him.

It is trite law that in order to prove common intention it is not necessary to prove a prior agreement between the assailants. It is sufficient if their intention can be inferred from the actions. See DAFASI MAGAI & ORS VS UGANDA [1965] EA 667 AND DRACAKU AFIA VS R [1963] E. A. 363. Common intention may be inferred from the presence of the accused, his action and his omission to disassociate himself from the attack. See $R$ $VS$ TABULAYENKA & ANOR [1943] 10 EACA 651. It can develop in the course of events though it might not have been present from the start. See WANJIRO WAMIRO VS R [1955] 22 EACA 521 AT 523.

In the present case, the evidence that seeks to place the accused persons at the scene of crime is contained in the confession statement of Nahabwe Livingstone (A1), made under charge and caution. It was received in evidence (Exhibit PE 10) following a trial-within-a-trial.

The said statement mentioned Nahabwe (A1), Peninah (A2), Orishaba (A3), Nuwamanya (A4), Byamugisha Silver, Muhumuza (A7), Kashaija Francis (2<sup>nd</sup> deceased) and Beshubeho's herdsman as having participated in killing Beshubeho. The statement also states

Kashaija Francis was injured on the face in the course of the killing, and that his death was ordered by peninah (A2) so as to prevent him from leading to their arrest on account of his injury.

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It further reveals the plot was hatched by peninah (A2), who wanted her husband eliminated, so that she and her children regain the family property. It also shows all the implicated persons were present at the scene and that it was Kashaija Francis (2"d deceased) who grabbed the deceased, Beshubeho while Nahabwe (A1) and the herdsman strangled him with a rope.

Al however gave confliction versions regarding the said statement (Exhibit PElo). In his testimony at the trial-within-a-trial he stated he was not asked any question while at Kamwenge police Station and that he did not make any statement, for he was unconscious. He denied making a statement before D/Ip Turyatunga (pW9). He went on to say he was merely given some papers by a certain fat man requiring him to sign which he did.

In his defence testimony in the main trial, 41 stated as follows:

uI wo,s taken to an offt,ce thqt hqd q.bout slx pollce offt.cers q.rrned. urlth guns. I was qsked questions concertrlng the deqth of mg uncle qnd Kqshalja Francls. Theg wrote doun who;t I totd them. I do not rememiber the person before uhom I ansuered these quesdons The pollce offfcer who recorded what I satd q,sked. me to slgn whlch I dld.,'

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A1 went on to say he admitted before the police that he was part of the group that killed his uncle and Kashaija Francis because of the beating he received in the village and threats by the police, but he did not participate in the kitlings. He further stated those other names were forced on him.

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It is trite that a trial court should accept any confession which has been retracted or repudiated or both retracted and repudiated with caution, and must before founding a conviction on such <sup>a</sup> confession be fully satisfied in all the circumstances and the case that the confession is true. But corroboration is not necessary in law and the court may act on a confession alone if it is fulry satislied after considering all the material points and surrounding circumstances that the confession cannot but be true. See TrrwAlwol vs UGANDA t196T E. A. 84 and ABEIT ALDY & ei\roR vs UeANDA CRITWTNAL AppEAL NOL 26/gs (s,c).

In the instant case, Byamugisha James (pw7) told court that on the l3thl4l2009, while at the home of Beshubeho awaiting burial, he and others tracked A1 to the forest and arrested him after receiving information he was hiding in the forest. when asked why he was in hiding yet his uncle was dead, A1 told them he and others killed Beshubeho. The others he is said to mentioned were Kashaiia Mephas, Kuramasi, T\.rribagenyi, peninah (A2), Muhumuza Bed (A7), Byamugisha Silver, Turyomurugendo Willy (46), Orishaba Love (A3), Nuwamanya Grace (A4), Byamugisha Silverino (A5) and Abaho who was Beshubeho's herdsman.

PW7 went on to say, A1 also revealed to them Kashaija Francis (2"a deceased) was brought in to make Beshubeho open for them (the group) because Beshubeho would not have opened for them. That during the scuffle with the deceased, Beshubeho, Kashaija Francis got injured and it was decided he too be killed as he was likely to cause their arrest. Pw7 stated A1 revealed aI this as they escorted him to the place for burial. By this time the police had not arrived. It was not suggested to the witness during cross-examination that Al was assaulted at all.

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It is to be observed, a similar version is reflected in the charge and caution statement save for a few names of the group said to have participated in the killings.

There is evidence on record that corroborates the said statement in the following areas:

- 1. In the English version of the charge and caution statement it is stated that both deceased were strangled with a rope. The post mortem reports (PE8 and pE9) show the bodies had <sup>a</sup> circumferential bruise on the necks. The cause of death was strangulation of the neck. - 2. The statement says Kashaija Francis had serious injuries on the face which prompted the others to kill him as well. The post mortem report (PE9) shows the body had a cut wound on the face.

\ 3. In the statement it is stated A1 sustained an injury on the face as they struggled \Mith the deceased Beshubeho. TWinomujuni Patrick (PWa) told court A1 had an injury on the right eye when he was arrested. D/IP Turyatunga (pW9) stated during his testimony in the trial-within-a-trial, that the accused had a swelling on his right eye.

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- 4. The statement says when Peninah (A2) and others were arrested, A1 hid in the bush for fear of arrest and that is where he was arrested from. Indeed Byamugisha James (pW7) told court the Police first arrested peninah and others, whereupon A1 disappeared till he was arrested. from the bush. - 5. Al's lie that he was beaten and sustained a broken leg and rib is not supported by medical evidence (pF 24] marked Exhibit PE6. It was also not put to D/Ip Turyatunga (pW9) who recorded the statement. - 6. Al's contradicting versions on how the statement came into existence. At the trial-within-a trial he said he did not mention anything to the Police yet in the main trial he said he did, and he signed what was recorded from him.

The above aspects of evidence do, in my view, provide sufficient corroboration of the said confession statement. I have no reason to doubt A1 made the same. It is quite detailed and contains matters that were within his knowledge. It could not have been <sup>a</sup> fabrication by the Police or any other individual. In the said

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statement A1 clearly describes the role he played at the scene and implicates himself in the commission of the crime. It can be used to prove the guilt of its maker conclusively. See lIO. RA. 78064 CPL WASSIYA & A]VOR VS UGANDA CRIMINAL APPEAL NO. 4A AND 49 0? 7999.

It is trite law that in a case where two or more accused persons are jointly tried for the same offence, a confession by one implicating another cannot be used as a basis for the conviction of that other. NO. 2/2OO2 (SC). Under Section 27 of the Evidence Act, it may only be used to supplement substantial evidence against the coaccused. In AJVIAIVGA VS R [19681 E,A. 239, the Court of Appeal for East Africa described it as evidence of the 'weakest kind' and can only be used as lending assurance to other evidence against the co-accused. Our own Supreme Court put it more clearly in ANDREW WALUSIMBI & 3 ORS VS UGANDA CRIMINAL APPEAL NO. 28/92 by stating as follows:

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"It is less ttttstutorthg agalnst a co-o.cclused. even when the confession has not been retracted., because as the Evidence Act states, lt can onlg be "to,ken lnto account." But when the confession has been retracted. or repud.iated, it then requires more corroboration beJore it can be relied on against the maker. How much less so, ts that the case against the co-q,cc1tsed.."

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In the instant case, therefore, the confession of Nahabwe (A1) implicating the other co-accused is evidence of the weakest kind as against the co-accused. I have discussed, earlier on in this Judgment, the evidence of conflicts/groups the deceased had with various people. There is however no independent evidence to show <sup>a</sup>particular or individual with such grudge, being spurred on by the grudge, attacked the deceased, Bishebeho and killed him. There is also no evidence to show all the various individuals with different grudges with Beshubeho were united in their bid or desire to get rid of a common enemy. common intention cannot be inferred in the abstract, it must be derived from specific acts or conduct of the persons involved. In the absence of such 'substantial evidence,, there is therefore nothing that the confession of Nahabwe can 'supplement' or 'lend assurance to,, as far as TWesigire (A2,, Orishaba (A3), Nuwamanya (A4), and Byamugisha Silverio (A5) are concerned.

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In any event, A3 and 44 denied they had grudges with their father at the time of his death. Byamugisha Silverio (A5) is not related to the deceased Beshubeho and there is no evidence to suggest he had a grudge with the deceased.

As for T\rryomururyendo Willy (.46), he was not implicated by Nahabwe in the statement. His involvement is said to hinge on the dispute he and his brother (Al) had with Beshubeho over the access road which the latter had blocked.

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As already noted, this is not enough for court to draw the inference he participated in the death of the deceased.

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I will now deal with the evidence against Muhumuza Ben (A7) whose situation is slightly different. I have earlier on discarded and rejected the evidence of Ruceceke (pw8) regarding what A7 allegedly disclosed or told him, on account of the lack of credibility of the said witness. A7 was also implicated in the confession statement of 41. This evidence is, as noted above, of the weakest kind. There are three aspects of circumstantial evidence emerging from the evidence on record seeking to implicate the accused (A7), namely:\_

> 2 - The phone communication he had with one Kadogo on the mobile phone of Mwebembezi Enock (pW6).

> 1 - The deceased were murdered on the very day he returned from school.

> 3 - His conduct of disappearing from the area following the arrest of the other accused persons.

According to the said pW6, as he and others were keeping vigil by the frre place at the deceased Beshubeho's home, A7 borrowed his phone to make a call. He returned it to him in the morning. When Nahabwe (A1) was arrested A7 disappeared from the scene. Later in the day PW6 received a calr on his phone and the screen flashed 'Kadogo'. He suspected A7 to have stored/saved the said name on his phone when he borrowed it the night before. pw6 answered the call pretending to be Ben. The caller inquired about the situation

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and urged him (Ben) to be firm. The caller told him if he (Ben) is discovered he (caller) would take and hide him.

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PW6 went on to explain how he and some police officer tracked down this 'Kadogo'using PW6 as bait while pretending he was Ben. The said Kadogo was arrested and the phone of pw6 was seized by the Police.

It is to be noted that the said Kadogo was not availed as a witness and no explanation was offered. The phone was also not produced in court. In effect all that evidence regarding the words spoken by 'Kadogo'on phone amount to hearsay and are inadmissible.

Muhumuza Ben (A7) told court he reft schoor for home on9/g/2oo9 and spent the night in his own house within his father,s homestead.

In the evening of rc/a/2oo9 he went vending milk at a home of <sup>a</sup> certain Mzee who also had a party at his home. He remained at the said place with his late father's casual worker known as Abaho. They left the said place at about 1r.30 p.m. Before they got home he heard a lot of noise at their home. on arrival he found many people gathered and saw the two dead. bodies. In his charge and caution (Exhibit PE xIV(a)) the accused gave a slightly different version. He stated that day, at about 9. O0p.m., his father (Beshubeho) told him to collect the jerrycan he had used to take milk for sale in the morning. He went with Abaho the herdsman. Before they could return home he heard an alarm at home.

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Firstly, the above inconsistency is, in my view, a minor one. Secondly, Muhumuza's oral version is corroborated by the testimony of Orishaba Love (A3) who stated as she was leaving her father's home at about 6.00 p.m. to visit her mother (A2) at Grace,s home (A4), Ben (A7) was preparing to take milk to one Mzee who had placed an order because he had a party.

In my view, the fact that A'7 returned home on the day his father and Kashaija Francis were murdered is of little evidential value, since he does not deny being in the village on that day. What he refutes is being at the scene at the time of the murders. From the evidence on record, I can say his alibi has not been negative or destroyed or rendered incredible.

Mwebembezi (Pw6) also testified that Muhumuza (A7) disappeared after Nahabwe (A1) was arrested. The police gave chase but he eluded them. In his testimony to court A7 stated he was arrested on the 21612009 from the home of his brother-in-law one Mujuni Patrick. There is no known reason why he was arrested much later. The prosecution did not call the police officer who arrested the accused. There is no evidence that he was being looked for and could not be traced. It cannot therefore be imputed he was in hiding. The fact of his arrest l zz months later does not give the inference of evidence of conduct.

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Another witness who talked about A7 is Mbabazi Loy (pW2), the wife to deceased Kashaija Francis. She told court on the lO/412OO9, at about 2.00p.m., A7 came to their home and talked

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to her husband in private. Kashaija then told lner AT had requested him to go and plead with the father of the school girl he (A7) had impregnated. He also told her he would be passing at Beshubeho,s home to brief him about Ben's issue. The deceased left with A7.

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The above evidence is of no relevance to the facts of this case. On the other hand, going by the confession statement of Nahabwe (A1), Kashaija's presence at Beshubeho's home is explained in different light altogether.

Having analyzed the evidence regarding A7 as above, I find that the circumstantial evidence is incapable of giving rise to the inference that he participated in the murder of his father and Kashaija Francis.

In their unanimous opinion, the two assessors were of the view that with the exception of Byamugisha Silverio (A5), the rest of the accused shared a common intention and were responsible for the death of both deceased. They accordingly advised me to find AS not guilty and the others guilty on both counts.

For the reasons I have given at length, I would agree with the assessors as far as A5 is concerned but disagree on the other accused persons, save for A1. I Iind Nahabwe (A1) guilty of murder on both counts and is accordingly convicted.. I lind Tamwesigire Peninah (A2), Orishaba Love (A3), Nuwamanya Grace (A4), Byamugisha Silverio (A5), Turyomururyendo Willy (,{6) and Muhumuza Ben (A7) not guilty on both counts and each is therefore

acquitted. $A2 - A7$ are to be set free unless either of them is lawfully held on other charges.

## **BYABAKAMA MUGENYI**

**JUDGE**

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$17/2/2012$

## $22$