uganda v no. 40709 sgt Mukerege and another (Criminal Session Case 346 of 1991) [1993] UGHC 73 (7 December 1993)

<sup>c</sup>ro 4^ \_ . THE REPUBLIC OF UGANDA,

*I*

IN THU HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL SESSION QASR NO. 346 OF 1991

UGANDA:PROSECUTOR. ==VERSUS==

Al: NO. 40709 SGT. MUKEREGE <sup>|</sup> ■' A2: BAHEMUKA PATRICK 0::::::::::::::::::::::ACCUSED.

BEFORE: THE HONOURABLE LADY JUSTICE M.' KIREJU,

## R U L I N~ G,

This .is a ruling in respect of no case to answer made by learned defence Counsel Mr< Nyamutale on behalf of the accused person Bahemuka Patrick,

The accused person A2 Bahemuka is indicted for the murder of Rusoke Augustine and Kabasita, He is also indicted for robbery under Count III and Attempted Murder under Count IV ) together with Al Mukerege who escaped from custody and was not before Court when this case came up for hearing. The accused A2 pleaded not guilty to all 4 counts.

The prosecution case has been based on the evidence of two witnesses and the postmortem reports exhibits I and 2, The postmortem reports were admitted in evidence under S. 64 of T. I. P and they showed that Augustine Rusoke and Kabasita were dead. The evidence of Reuben Kasaija RCI Kibimba, village

who arrested the 2 suspects and took them to Police was alsb admitted. The first prosecution witness was Tedora Biryomunda who testified that on a date she cannot remember, they were attacked at their home, she was cut and their property taken\* She managed . to recognise Mukerege by the help of the torch as one of the attackers, she did not know the second attacker\* She was blind folded by the attackers and cut, she become unconscious and she did not regain conscienceness until after 2 weeks and thats when she discovered that Rusoke and Kabasita had been killed in the attack.

After the prosecution had adduced the evidende as staged above it closed its case and Mr. Nyamutale submitted on no case to answer.

Mr. Kikomeko for the state conceded to the submission of no case to answer. The principles under which this type of submission may be rejected or upheld are well known. Some of those principles were set down in the case of Bhatt vs. R. 1957 BA, 332\* One of the loading principles upon which the Court will proceed to uphold a submission of no case to answer is where a reasonable tribunal properly directing its mind to evidence and the lav/ would not proceed to convict if the accused decided to offer no evidence at the close of the case for the prosecution.

In the case before mo it is clear from the evidence of the prosecution witnesses that no reasonable tribunal properly

directing its mind to the evidence and the law would think of convicting the accused if he decided to say nothing at the close of the case for the prosecution. The available evidence does not in any way connect the accused with the murder of the deceased persons, and the robbery and the attempted murder as there is nothing in the evidence before Court to connect him with the alleged offences.

I have seriously considered the defence counsel's submission the evidence on record and the relevant principles of the law involved and I have come to the conclusion that the submission of no case to answer must be upheld. No prima facie case has been made out for the accused to answer. I find the accused person not guilty and I do acquit him under the provisions of S, 71 (l) of the Trial on Indictment Decree.

Sgd.

■1/V'- - ( M. KIRDJU ) JUDGE.

7/12/93.