Uganda v Opama and 4 Others (Criminal Session Case 113 of 2018) [2025] UGHC 15 (13 January 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT SOROTI CRIMINAL SESSION CASE NO. HCT-09-CR-SC-0113-2018 **ARISING FROM SOROTI-CRB-085-2018** <table> UGANDA :::::::::::::::::::::::::::::::::::

#### $=$ VERSUS $=$

## OPAMA JAMES & 4 OTHERS :::::::::::::::::::::::::::::::::::: **BEFORE: HON. LADY JUSTICE IKIT MARY**

### **JUDGMENT**

The five (5) Accused persons are jointly indicted with the offence of murder contrary $\mathsf{S}$ to Sections 188 & 189 of the Penal Code Act (now Sections 171 & 172 of the Penal Code Act Cap. 128). It is alleged by Prosecution that Opama James-A1, Ebiru John Robert-A2, Eculu Simon Peter-A3, Ewalu Robert-A4 and Ekochu Moses-A5 and others still at large on the night of 29/1/2018 while at Odukurun Opataka Village in Soroti District, with malice aforethought unlawfully caused the death of Otim Robert 10 (the deceased).

A4- Ewalu Robert died during the pendency of the case. Prosecution proceeded against A1, A2, A3 and A5 all of who pleaded not guilty to charge. Prosecution called four (4) witnesses: PW1-Olupot Martin, PW2- Okwalinga Joseph, PW3-Ewalu David and PW4-Otim Simon Peter. At the commencement of the trial, a Post Mortem report and Police Form 24, the medical reports of the four (4) Accused persons were admitted as agreed documents and marked as PEX.1, PEX.2(1), (2), (3) & (4). The 4 Accused persons testified on oath and called 1 witness DW5-Alanyu John.

- At the close of the defense, Ms. Namazzi Racheal G, Resident Chief State Attorney $\mathsf{S}$ from Office of Director of Public Prosecutions (ODPP) and Mr. Olobo James Felix and Mr. Ogire Gabriel learned Counsel Accused persons on State-briefs made written submissions to support their case. - At the beginning of the trial there were two (2) Court Assessors that is, Mr. Erwaku Lawrence and Mr. Ekayu Pampus. However, Mr. Ekayu Pampus's role as an 10 Assessor in this case was dispensed with under Section 70(1) of the Trial on Indictments Act, Cap. 25. The Court proceeded with Mr. Erwaku Lawrence as the sole Court Assessor who made his opinion which this Court has duly considered in the Judgment. - Section 171 of the PCA provides for the offence of murder, it stipulates that; 15 "Any person who of malice aforethought causes the death of another person by an *unlawful act or omission commits murder,* "

The above essential ingredients of murder were summarized in the case of UGANDA VS- KINTU DIDAS CRIMINAL CASE No.022 of 2011 where it held that to sustain a murder charge, the Prosecution has to prove the following ingredients:

*a) Death of a human being;*

- *b) That the death was unlawful:* - *c) The death was as a result of malice aforethought; and* - d) That it was the accused person(s) who caused the death of the deceased. - The duty to prove each of the above ingredients solely lies on Prosecution and the 25 standard of proof is beyond reasonable doubt. The Accused person(s) has no duty to prove his innocence. This is a principle well set out in the *Locus Classicus* case of WOOLMINGTON VS-DPP (1935) AC 462. The Ugandan Courts have squarely

followed the principle as is demonstrated in the cases such as SEKITOLEKO V $\mathsf{S}$ UGANDA (1967) E. A 531, KIRAGA V UGANDA (1976) HCB 305. According to the case of MILLER VS- MINISTER OF PENSIONS (1947)2 ALLER 372, the standard of beyond reasonable doubt does not mean proof beyond any shadow of doubt. That the standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility that the accused is innocent. 10

To prove its case, the Prosecution called four (4) witnesses: PW1-Olupot Martin, PW2- Okwalinga Joseph, PW3-Ewalu David and PW4-Otim Simon Peter who all testified on oath and were cross-examined by defense Counsel.

PW1-Olupot Martin testified that Otim Robert, the deceased was his friend and he 15 knew the Accused persons-Opama, Ebiru, Eculu and Ekochu, he got to know them when he, Otim Robert and Edwonu Phillip went for disco on the 29/1/2018. PW1stated that there was a marriage party for Apami's son at the home of Apami . While at the party, Otim Robert, the deceased went out to ease himself at about 2:00am and after waiting for him in vain he-PW1 and Edmonu Phillip went where he had gone since they had seen the direction. They then found Otim being beaten 20 by all the Accused persons. There was moon light for identification. That they were observed the assailants from an estimated distance of about 5 meters. That when the assailants saw them, they started beating them but they had noticed it was Otim being beaten and they could not question the Accused persons who were violent to them. The Accused persons were using split wood for beating Otim: all the Accused 25 persons had big wood and they could not see which parts of the body were being beaten since they could not draw closer. He further stated that after being beaten, he run to his brother Eyatu Moses and together with his brother and Edmonu Phillip they tried to take Otim Robert to a hospital, but he died on the way to Hospital. That he has no grudges with the Accused persons, he did not see the Accused person 30

Page 3 of 19

- $\mathsf{S}$ talking to Otim and did not know why they were beating Otim, he only saw the 4 Accused persons beating Otim. PW1's evidence is further that he did not take long at the scene for fear of being beaten but that the time he spent was enough to see the Accused persons. - On cross-examination PW1 stated that the Accused persons are from the same clan, all reside in Alale Village. Otim comes from Ochero Village which is separated by 10 a swamp from Alale Village. That the party was at the home of the Accused persons. the incident took place at 2:00am but there was moonlight. He further stated that they made alarm but the music was too loud. That the body of Otim was not found lying by a road side. - PW2-Okwalinga Joshua testified on oath that his Cousin- Otim was killed on 15 29/1/2018. He stated on the said date at night, him while I company of Olupot, Otim and many others for a party at Opama's home. That before 29/1/2018 he knew all the Accused persons: they were their neighbors living in Alele Opotaka village. PW2 stated further that while at the party Otim (deceased) went out to ease himself at 2:00am where he met people who beat him up, Ewalo Davis, PW2's brother went 20 and informed them that Otim was being beaten. That in the company of Malinga Emmanuel, they rushed to the scene and found Otim lying helplessly. Olupot Martin reached the scene first. There was moonlight. They found all the 4 the Accused persons and the late Ewalu Robert (A4) beating the deceased with sticks size of an arm. In the bright moonlight they could see the Accused persons, they took about 25 1½ hours at the scene until a motor cycle arrived. The Accused persons upon noticing Otim was helpless, they disappeared one by one. PW2 further stated that the assailants were violent to them, Edwonu Phillip tried to talk to the Accused persons but they were hostile, Ekochu (A5) and Eculu (A3) were his friends and he used to interact with Eculu while grazing cattle. Ekochu (A5) was DJ who plays 30

Page 4 of 19

music. PW2 stated that he did not meet the Accused persons that night, Otim died $5$ when they were trying to take him to hospital. He no grudges with the Accused persons.

In cross-examination PW2 stated that when the Accused persons stopped beating Otim, they found Otim lying helplessly (still breathing) at an estimated distance of 10 meters from the compound where the party was. Otim had no grudges with the Accused persons. PW1 got Olupot at the scene of the murder. That he was not beaten by the Accused persons, it was Edmonu who first saw Otim being beaten and Ewalu informed them and when people went to the scene, the Accused persons disappeared one by one

PW3-Ewalu David testified that Otim Robert (deceased) was his friend and on 15 29/1/2018 him and his other friends like Olupot, Okwalinga, Asolo went for a marriage party at Opotaka, a place near their village. That they were seated with Otim and at some point Otim went out to ease himself and after 20 minutes he(Otim) he had not returned. PW3 stated further that he also went to ease himself and on hearing an alarm from Otim Robert, he responded since the distance was about 10 20 meters from where he was easing himself. The deceased was being beaten by the Accused persons using sticks and Otim was making alarm, PW2 moved closer: there was moonlight. That he knew all the Accused persons but does not know their names, PW3 stated he knows Ekochu (A5), he is a D. J He further testified that he moved closer to an estimated distance of $1\frac{1}{2}$ meters and saw all the Accused persons 25 using sticks, the size of his arm, he did not question the Accused persons about their conduct. That he knows all the Accused persons by appearances except Ekochu-A5 since he used to visit their trading center. Upon finding the Accused persons beating Otim, he went back to pick Olupot, Okwalinga and Asolo and they returned to the scene. The assailants began leaving one by one, Otim died as they were trying to put 30

Page 5 of 19

him on a boda-boda to transport him to hospital. They then took his body to Ochero. $5$ According to PW3 no other person was attacked and beaten by the Accused persons.

Upon cross-examination, PW3 stated that he knew all the Accused persons before the murder, the party was at Eculu's home and he saw Ekuchu at the function. The assailants were using 5 big sticks and the beating took a long time. That when he moved closer, Ekuchu-A5 threatened to use his stick on him.

PW4-Otim Simon Peter, a DIP Police officer testified that in 2018 he was at Soroti Central Police Station (CPS) and on 30/1/2018 in the company of ASP Ojok and other police officers went to Ochero Village after being informed that someone was

killed on 29/1/2018. That upon arrival, they were led to a body of the deceased lying 15 down under a mango tree, the body was for a male adult- Otim Robert. He observed the body; it had foam coming from the mouth, fresh wound on the right lower head, swollen lower li. According to PW4, the body had several marks of violence which were fresh. He got to know from witnesses like Ewalo, Olupot and Okwalinga that the deceased was beaten to death. He took the body for Post mortem at Soroti 20 Hospital and conducted the arrest of Accused persons one by one being led by the relatives of the deceased.

On cross-examination PW4 stated that as a scene of crime officer one of his duties was to visit the scene of the crime. He admitted that he did not visit the scene of the murder since he was occupied by other duties.

In their respective defenses, the Accused person testified on oath and called one witness-DW5.

A1-Opama James testified as DW1 and stated that A2 is his brother, A3 is his Nephew and A5 is his Cousin. That he does not know Otim Robert (deceased), on

Page 6 of 19

- 29/1/2018 there was a marriage ceremony at his father's home, A3 was getting $\mathsf{S}$ married and his in-laws came from Kaberamiado. That the ceremony started at 1:00pm till 7:00am when the in-laws left, he left the venue of the marriage at about 1:30am. It was his evidence that he did not know that Otim Robert was beaten and he died. - In cross-examination, DW1 stated that he does not know the witnesses who testified 10 in Court, the ceremony was at his father's place which is about 5 minutes' walk to his home. That when the generator's fuel got over, he left the other Accused persons to take care of the music. - A2-Ebiru John Robert testified as DW2 and stated that A1 is his elder brother, A3 is his nephew and A5 is his Cousin. That he does not know Otim Robert, it is not true 15 he murdered Otim. DW2 stated further that on 29/1/2018 there was a marriage ceremony of A3 at the home of his father, Eswapu Bazil. The ceremony started at 1:00pm when the visitors arrived until 6:00am. That after informing the Clan Chairperson- Alanyu John who was with Enangu David- Chairperson LCI, he left for his home at 9-10pm. That he was together with the co-accused persons at the 20 function, A5 was playing music and when he left he never returned to the function. He never heard that Otim Robert was beaten that night but he heard the next morning that some passer-by was beaten from the road.

In cross-examination DW2 stated that it is not true A1 left him at the ceremony at 1:30am. That he does not know the Prosecution witnesses.

A3-Eculu Simon Peter testified as DW3, he stated that A1, A2 and A4 are his uncles. On 29/1/2018 he was getting married, his in-laws came from Kaberamiado to receive dowry, they reached at 11am and left at 6pm, he left with his wife for his home which is different from where the function was at 12:00am and slept until 3:30am. That his

Page 7 of 19

brother Augusto Alex asked him for money for fuel which he did not have. The next $\mathsf{S}$ morning when he went back to the venue of the marriage he heard that the people of Ochero had threatened to burn their houses for beating their son-Otim Robert. That Otim Robert was not beaten from the function venue, he does not know the prosecution's witnesses who told lies to Court, that by that time he was already at his home. That he left A5 at the scene and did not bother checking for the other co-10 accused when he was leaving. He was arrested on $21/2/2018$ from his house and taken to Soroti CPS.

In cross- examination DW3 stated that he heard about Otim's death on 30/1/2018. His home is about 1km from where the marriage ceremony was. He attempted to run away because unknown people had gone to his home. That he was with all the coaccused persons at the function; A5 was in-charge of music system.

A5- Ekochu Moses testified as DW4 and he stated that on 29/1/2018 from 11pm-2pm he was playing music at the home of Eswaspu Bazil. There was a marriage ceremony where people danced till 3:30am. He stopped the music because the generator ran out of fuel. That he did not know Otim Robert had been beaten, he got to know that in the following day at 9am from some woman when he went back to the marriage ceremony venue to pick his music system. That the woman was saying the people of Ochero had picked up a dead body and were threatening to attack the marriage ceremony home. DW4 stated further that he does not know Ewalu David-PW3 and Okwalinga Joshua-PW2, he was busy playing music as people were dancing and he never left the music system to murder.

On cross-examination DW4 stated that he is not in the habit of leaving his equipment at venues till the next day, he never left the compound where he had set-up his music equipment, he stayed until 9am the next morning. That his home is about 1km from the function venue and he does not know the Prosecution witnesses.

Page 8 of 19

- DW5-Alanyu John stated in Court that he knows all the Accused persons, that on 5 29/1/2018 a marriage ceremony was at the home of Eswapu Bazil. A3 Eculu was getting married, his in-laws arrived from Kaberamaido at 1:00pm and they left at 6:00pm but the celebrations continued up to about 4:30am. DW5 testified that he left for his home and never witnessed any fighting. The Accused persons were present during the ceremony, he saw them up to about 11:00pm, A5 who was 10 operating music was the last person he saw, he did not see the other Accused persons again from 11:00pm. It was the further testimony of DW5 that he left the venue when Otim Robert was not murdered, he heard on phone about his death the following day at 12:30pm from Soroti City and does not know who killed Otim. - 15 On cross examination, DW5 stated that A1, A2 and A5 are his Cousins and A3 is his grandson. That he found the Accused persons at the venue, A1's home is about 1km, A2's home is about 100 meters, A3's home is about $\frac{1}{2}$ km and A5's home is about 200 meters; that is from the venue of the marriage ceremony. That the Accused persons were doing their work at the venue while he was seated with people. DW5 stated that he did not know Otim Robert, Olupot Martin, Okwalinga. That there were 20 many youths at the function and he could not know each one of them. He decided to stay up to 4:30am, he was taking tea and the Accused persons don't drink 'Ajono' which was being served at the function; he drank tea. At 1:00am, fuel got finished but the generator was re-fueled and the music continued. According to DW5, A5 must have forgotten that the generator was refueled and the music continued. DW5 25 stated that his home is $1\frac{1}{2}$ km from the venue of the function.

Having stated the evidence, I proceed to evaluate the evidence on record against the ingredients of the offence of murder in the sequence of presentation.

Page 9 of 19

#### Death of a human being $\overline{5}$

To prove this ingredient, the Prosecution relied on the evidence of PW1, PW2, PW3 and PW4, of all whom testified that the deceased died. PWI, stated that Otim Robert was murdered; he died on the way to Hospital. $PW2$ , testified that on 29/1/2018 when they were trying to take Otim Robert to Hospital, he died. PW3, also informed

Court that Otim died when they were trying to put him on a Boda-boda to take him to Hospital.

PW4, a Police Officer testified that he was led to the body of the deceased which was lying on a bed under a mango tree. It was for a male adult-Otim Robert (deceased). That he took the body for Post Mortem at Soroti Hospital Mortuary. The Post Mortem Report admitted as *PEX.1* confirmed that the deceased died.

The Accused persons in their defense also admitted that Otim Robert died. The defense Counsel did not contest this ingredient of the offence in their submissions.

The gentleman Assessor in his opinion stated that the Prosecution has proved beyond reasonable doubt this ingredient of the offence. In light of the evidence on record, I am in full agreement that the Prosecution has successfully discharged the burden of proof regarding this ingredient of murder.

### That the death was unlawful

To prove this ingredient, the Prosecution relied on the evidence of PW1, PW2, PW3 and PW4 who all testified that the deceased had head injuries. The Prosecution submitted that under Article 22(1) of the Constitution of the Republic of Uganda, no person shall be deprived of life intentionally except in execution of sentence passed in a fair trial by a Court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate Court.

Page 10 of 19 In reliance on the case of GUSAMBIZA S/O WESONGA VS- R [1948] 15 ECCA 65 $5$ where it was stated that every homicide is presumed to be unlawful unless accidental or excusable by law, the learned Chief State Attorney argued that according to the postmortem report (PEX.1) the death of Otim Robert was not caused by natural cause. The defense Counsel did not contest this ingredient of the offence in submissions.

As rightly submitted by the Prosecution the presumption in law is that, all homicides are caused by unlawful means unless authorized by law. In the instant case, Otim Robert (deceased) was beaten to death using sticks. The use of sticks to beat up someone to death cannot be said to have been authorized by law; it is unlawful.

In agreement with the opinion of the gentleman Assessors, I find the Prosecution has 15 satisfactorily proved this ingredient of the murder beyond reasonable doubt.

## The death was as a result of malice aforethought

To prove this ingredient of the murder, the Prosecution relied on the evidence of PW1, PW2 and PW3 who testified that the Accused persons were very violent while assaulting the deceased with big pieces of split wood, they could not allow anyone to rescue him, their actions were deliberate and had malice aforethought.

In reliance on PEX.1, the Post mortem report which showed the cause of death of the deceased as being due to blunt force injury to the chest, the learned Chief Sate Attorney submitted that the chest is a delicate part of the body and the deliberate actions of the Accused persons on using extreme force which led to acute respiratory failure and death of the deceased imputed malice aforethought.

The defense Counsel in their submissions did not contest this ingredient of the offence of murder.

Page 11 of 19

- Malice aforethought is provided for under Section 174 of the PCA. It stipulates that: $\mathsf{S}$ "Malice aforethought shall be deemed to be established by evidence proving either *of the following circumstances* - a) An intention to cause the death of any person, whether that 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 that person is the person actually killed or not, although the knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused."

Malice aforethought is the mental element of the offence of murder. It is difficult to establish malice aforethought through direct evidence. In the case of UGANDA VS-15 KINTU DIDAS (supra) it was held that malice aforethought may be established from:

- *a) The nature of weapon used;* - *b) The body part targeted (vulnerable or not);* - c) The manner in which such weapon was used (whether repeatedly or not) - *d) The conduct of the assailant before, during and after the attack.*

In the instant case, the Post Mortem report (PEX.1), showed deep laceration on the right side of the head and bloody foam from the nose. This was corroborated by the evidence of PW4 who stated that the deceased had fresh wound on the right side of the lower head with some foam coming from his mouth. According to PEX.1 the deceased died due to blunt force to the chest which caused damage to the lungs and acute respiratory failure. In view of the nature of the injuries suffered by the deceased, it can be inferred that whoever caused those injuries intended to cause death or knew that they would probably cause death. PWI, PW2 and PW3 stated the

Page 12 of 19

assailants used big split wood, object capable of causing death. Each of them was $\mathsf{S}$ armed with wood. It is therefore established that the death of Otim Robert was caused with malice aforethought.

The gentleman Assessor opined, which I too believe, that the assailants acted with malice aforethought in executing the murder. I find that the Prosecution has discharged the burden of proof regarding this ingredient of murder beyond reasonable doubt.

## That it was the Accused persons who caused the death of the deceased

To prove the ingredient of participation of the Accused persons in causing death of the deceased, the Prosecution relied on the direct evidence of PW1, PW2 and PW3.

- It was submitted by Prosecution that all the three (3) Prosecution witnesses knew the 15 Accused persons, there was moon light, they witnessed the act at a close range and the act took a while. The learned Chief State Attorney relied on the case of ABDULLA NABULERE & 2 ORS VS- UGANDA [1978] HCB 77 regarding identification factors to support her argument. - The Prosecution further argued that though the incident happened at night, at about 20 2:00am, there was bright moon light, familiarity of the witnesses with the Accused persons, short distance between the Accused persons and the Prosecution witnesses coupled with sufficient length of time were all favorable to facilitate proper identification leaving no room for error. - It was submitted by the defense that the three (3) prosecution witnesses never 25 disclosed on who first found the deceased being assaulted, that there were grave inconsistencies, that there was no proper identification since PW1, PW2 and PW3 were not clear on the distance between them and the Accused persons.

Page 13 of 19

The defense contended that at 2:00am, a wee hour of the night there was possibility $\mathsf{S}$ of darkness, the moon light which the prosecution witnesses alluded to, they did not substantiate on the amount of light -whether bright or dim.

Defense Counsel further submitted that the witnesses stated in Court that the suspects were harsh, meaning there was a possibility of them being in panic and could not tell who the suspects were within that short time of the alleged identification.

The defense Counsel contended that the case against the Accused persons depended wholly and substantially on the correctness of one, two or three identification of the Accused persons, which the defense strongly disputes.

To determine this ingredient of the offence of murder, there is need to ascertain from 15 the circumstances prevailing at the time of the alleged murder; whether the factors of identification were favorable to identify the Accused persons as the perpetrators of the murder.

The law on identification has been settled in the case of ABUDALA NABULERE & 2 ORS VS- UGANDA CRIM. APPEAL NO. 9 of 1978 where the Court stated that the 20 factors that favor correct identification are; the length of time the witness observed the assailant, familiarity of the witness with the assailants and the quality of the light at the time. All these factors go to the quality of the identification evidence. If the quality is good, the danger of mistaken identity is reduced but the poorer the quality the greater the danger.

PW1 testified that while in the company of Edmono Phillip, they found all the Accused persons beating the deceased using big split wood (sticks); all the Accused persons had big wood (sticks). That there was moonlight for identification and they were observing from a close distance of about 5 meters. PW1 further informed Court

Page 14 of 19

that he knew the Accused persons before, they are from the same clan and reside in $\mathsf{S}$ Alale, his neighboring village.

PW2, testified that he knew all the Accused persons before 29/1/2018. The Accused persons live in Alale Village specifically in an area called Opataka. That on the night of the incident, there was moon light and all the four Accused persons and the late Ewalu Robert (A4) beat the deceased using sticks (the size of his arm). That the Accused persons were violent to him and Edwonu Phillip. PW2, specifically pointed out Ekochu (A5) and Eculu (A3) who he said were his friends. That they used to interact with A3 when grazing animals and that A5 is a D. J who plays music.

PW3, who had also gone to ease himself told Court that he responded to an alarm by Otim Robert (deceased) and found the Accused persons beating the deceased using 15 sticks. While pointing at A5, PW3 stated that he knew all the Accused persons, A5-Ekochu is a D. J. That he moved close to a distance of about $1\frac{1}{2}$ meters and saw all the Accused persons using sticks to beat the deceased. Upon being cross-examined, PW3 stated that when he moved closer, A5 threatened to beat him with a stick.

The Accused persons basically in their defense denied the offence. All the Accused 20 person admitted attending the marriage ceremony but that all of the Accused persons except A5 left the ceremony for their respective homes. A5 admitted remaining playing music at the ceremony but denied assaulting the deceased.

In light of the decision in ABUDALA NABULERE'S case (supra), the evidence by PW1, PW2 and PW3, all who knew the Accused persons connected the four (4) Accused persons to the commission of murder. The existence of moonlight on the night of the incident eased identification of the Accused persons. According to PW3, the incident took a long time which means the witnesses had time to observe the persons who beat the deceased. PWI also stated much as he did not take long at the

Page 15 of 19

scene of crime because of fear of being beaten, the time he spent was enough to see $\mathsf{S}$ the Accused persons.

I am therefore in agreement with the Prosecution's submissions that the Accused persons were not merely identified by one witness, but by three witnesses who knew the Accused persons prior to the gruesome incident and the prevailing circumstances enabled proper identification.

In any case, the defense is riddled with contradictions as regard the time each of the Accused persons left the marriage venue for their homes.

A1 testified that he went back home at 1:30 and left the other Accused persons at the venue of the marriage, A2 told Court that he left between 9:00pm-10:00pm and never went back at the venue. It was the evidence of A3 that he left at midnight and slept until 3:30am when Ebuso Alex went to him asking for money for fuel. A5 stated that he was playing music until when the fuel for the generator got finished and he never left his music equipment.

DW5 testified that he did not leave the marriage venue until 4:30am and he saw the last of the Accused persons at about 11:00pm and A5 was the last of the Accused 20 persons he saw.

The evidence of DW5 contradicts that of A1 and A3 regarding the time they left the marriage venue to go home. DW5 also contradicted the evidence of A5 regarding whether or not the generator was re-fueled and music continued. A5 testified that after the fuel got over from the generator, the music stopped whereas DW5 stated that the generator was refueled and the music continued playing.

A1's evidence also contradicted the evidence of A2 and A3 in that whereas A2 and A3 claimed to have left for their respective homes much earlier, A1 stated that when he left at 1:30am, he left the other Accused persons at the venue.

Page 16 of 19

- In light of these contradictions in the evidence of the defense, I am inclined to agree $5$ with the Prosecution's contention that these grave contradictions regarding the time at which they left the marriage venue in defense only point to deliberate untruthfulness of the Accused persons to Court. - In arriving at the above, I am cognizant of the fact that the Prosecution can only secure a conviction on the strength of the evidence presented and not on the 10 weaknesses the defense. That notwithstanding, the murder incident is alleged to have occurred at 2:00am, therefore ascertaining the time at which the Accused persons left the marriage venue is crucial and by that contradictions by the defense regarding the time is grave. - In the case of MILLER VS MINISTER OF PENSIONS (supra), Lord Denning at page 15 373 that:

'Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice if the evidence is so strong against a man as to leave only remote possibility in his favor ... the case is proved beyond reasonable doubt but nothing short of that suffices'

All in all, considering proof beyond reasonable doubt does not by itself mean proof beyond the shadow of doubt, I find the PW1, PW2 and PW3 have satisfactorily placed the A1, A2, A3 and A5 at the scene of the crime as the persons who assaulted the deceased using big split sticks thereby leading to death. This overrules the contention by defense counsel about contradictions and inconsistencies. In any case, they are minor and do not go to the root of the offence and do not point to deliberate untruthfulness of the prosecution witnesses. Omission by the witnesses to point out the sequence of reaching the scene is not fatal to the Prosecution case.

Page 17 of 19

Since the murder incident in this case arose from joint assault by the Accused $5$ persons on the deceased Otim Robert, it is prudent to consider the law on joint offenders in prosecution of a common purpose.

Section 20 Of the Penal Code Act, Cap. 128 provides for joint offenders in prosecution of a common purpose and it stipulates that:

- 'When two or more persons form a common intention to prosecute an unlawful 10 purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence." - The case of KISEGERWA & ANOR VS- UGANDA CRIM APPEAL NO. 6 of 1978, 15 Court of Appeal elaborated on the above provision and the doctrine of common intention thus:

'In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence...an unlawful common intention does not imply a pre-arranged plan. Common intention may be inferred from the presence of the Accused persons, their actions and the

omission of any of them to disassociate himself from the assault.'

In the instant case, the deceased was assaulted to death by the Accused persons using big split sticks, the Prosecution's evidence pointed to all the Accused persons participating in the assault of the deceased. Therefore, by their presence at the scene of the assault, holding sticks, assaulting the deceased and stopping anyone from rescuing the deceased, demonstrate all the Accused persons had formed a common intention to occasion unlawful bodily assault on the deceased which eventually led

Page 18 of 19

to his death. They had a common intention to cause death to Otim Robert, hence $\mathsf{S}$ satisfying the doctrine of common intention to cause the murder of the deceased.

In agreement with the gentleman Assessor, I find that the Prosecution has successfully proved the participation of each of the Accused persons in the murder of the Otim Robert beyond reasonable doubt.

Consequently, I find that the Prosecution has successfully proved beyond reasonable 10 doubt all the essential ingredients of the offence of murder. I therefore find A1, A2, A3 and A5 guilty of the offence of murder contrary to Sections 188 & 189 of the Penal Code Act now (Sections 171 & 172 of the Penal Code Act Cap. 128).

A1 is convicted of the offence of murder contrary to Sections 188 & 189 of the Penal Code Act (now Sections 171 & 172 of the Penal Code Act Cap. 128).

A2 is convicted of the offence of murder contrary to Sections 188 & 189 of the Penal *Code Act* (now *Sections 171 & 172* of the *Penal Code Act Cap. 128*).

A3 is convicted of the offence of murder contrary to Sections 188 & 189 of the Penal *Code Act* (now *Sections 171 & 172* of the *Penal Code Act Cap. 128*).

A5 is convicted of the offence of murder contrary to Sections 188 & 189 of the Penal 20 *Code Act* (now *Sections 171 & 172* of the *Penal Code Act Cap. 128*).

Dated at Soroti this ....................................

Page 19 of 19