Uganda v Sibomana (Criminal Session Case 209 of 2022) [2024] UGHC 828 (27 May 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CRIMINAL SESSION NO. 0209 OF 2022 Arising from Kis AA – 0001 of 2022 Arising from CRB No. 604 of 2021)** 10 **UGANDA =============================PROSECUTION VERSUS SIBOMANA GIDION======================ACCUSED**

## **BEFORE HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

The Accused Sibomana Gidion alias Tibesibwa alias Ntibisigwa is charged with **Murder Contrary** to **Section 188** and **189** of the **Penal Code Act**. The facts giving rise to the indictment are that Sibomana Gidion alias Tibesibwa alias Ntibisigwa on the 5th <sup>20</sup> day of September 2021 at Gahinga Village, Kinyababa Ward, Cyanika Town Council in Kisoro District with malice aforethought unlawfully caused the death of Namara Bridget.

The Accused pleaded not guilty.

## **Representation.**

25 Ms. Nabagala Grace Ntege (Chief State Attorney) appeared for the Prosecution while Ms. Namara Alice represented the Accused on state brief.

5 The Assessors in this case where Mr. Livingstone Ndyamutunga and Ms. Muhaweminana Sylvia but the trial was concluded with one Assessor Mr. Livingstone Ndyamutunga.

During the Preliminary hearing sanctioned under **Section 66** of the **Trial on Indictment Act (TIA)** medical evidence in PF24 and PF 48B were 10 admitted as uncontested.

The PF24 was in relation to the medical examination of the Accused in which he was found to have a normal mental status. The same was admitted as Exhibit P1.

While PF48B was the postmortem report that details the body of the 15 deceased as having abrasions on the left knee, abrasions above the eye sockets, a blood stained bandage around the head and the cause of death was listed as carniocerebral injury (brain dysfunction) due to blunt head trauma. This report was received as Exhibit P2.

## **Burden and Standard of proof.**

20 This being a criminal trial it is one whose proof lies squarely on the Prosecution and the Accused has got no duty to prove his innocence.

It is also proof beyond reasonable doubt. Any doubts must be resolved in favour of the Accused and the Accused must only be convicted on the strength of the Prosecution case and not on the weakness of the defence 25 case.

## 5 **See Ssekitoleko versus Uganda (1961) EA 531**.

## **Ingredients of the offence**.

The Prosecution must prove the following ingredients beyond reasonable doubt;

**1) Death of a human being.**

- 10 **2) The death was caused by some unlawful act.** - **3) The unlawful act was actual by malice aforethought.** - 4) **That it was the Accused who caused the unlawful death**.

## **1) Death of a human being.**

15 Death may be proved by production of a postmortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the deceased's body.

In the instant case Alice Mukama (PW2), Tumushime Thomas (PW4) and Mpuga Fred (PW5) all testified that they visited the Deceased Namara

20 Bridget while she was hospitalized at Mbarara hospital and upon her death attended her burial on the 22/09/2021. Their evidence is corroborated by the postmortem report in Exhibit P2.

The Accused did not in cross examination nor in his defence dispute the fact that Namara Bridget is dead.

25 I therefore find that the Prosecution has proved the death of Namara Bridget beyond reasonable doubt.

## 5 2) **That the death was caused by some unlawful act**.

The law presumes that any homicide (killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it was authorized by law.

## **See R versus Gasambizi S/o Wesonga [1948] EACA 56**.

- 10 It is the evidence Alice Mukama (PW2) that on the 07/09/2021 at Mutolere Hospital she saw Namara Bridget the deceased who was her daughter and that she observed that her head had been stitched with the threads clearly visible, her head was swollen and injured including her eyes and her teeth were stiff and closed shut. It is the evidence of PW2 that Namara Bridget 15 later died from her injuries on the 20/09/2021. - Her evidence is corroborated by PW4 and PW5 who both visited Namara Bridget in Hospital and testified as to her poor medical condition. Further medical corroboration is in the postmortem report in Exhibit P2 with her cause of death as being a brain dysfunction due to blunt head trauma. - 20 I am sufficiently satisfied that the death of Namara Bridget was neither accidental nor authorized by law.

It is therefore my finding that the Prosecution has proved beyond reasonable doubt that the death of Namara Bridget was caused by an unlawful act.

## 3) **That the unlawful act was actuated by malice aforethought**.

- 5 Under **Section 191** of the **Penal Code Act**, malice aforethought may be established by evidence proving either of the following: - **1) An intention to cause the death of a person.** - 2) **Knowledge that the threat or omission causing death will probably cause death**. - 10 Malice aforethought in murder trials can be ascertained from the weapon used (whether it is a lethal weapon or not) the manner in which it is used (whether it is used repeatedly or the number of injuries inflicted) the part of the body that is targeted or injured (whether or not it is a vulnerable part) and the conduct of the Accused before, during and after the incident 15 (whether there was impunity) **See R versus Tubere S/o Ochen [1945) EACA 63.**

It is the evidence of Alice Mukama (PW2) that when she saw Namara Bridget at Mutolere Hospital she observed that her head had been stitched with the threads clearly visible her head was swollen and injured including her eye 20 and her teeth were stiff and closed shut. This evidence is well corroborated by the observations of PW4 and PW5 who visited Namara Bridget while in Hospital. Further corroborative medical evidence can be obtained from the postmortem report that details that the victim had a blood stained bandage around her head with abrasions on her left knee and above the eye sockets 25 found to be about 2 weeks old at the time of examination on 22/09/2021. Here cause of death was listed as carniocerebral injury (brain dysfunction) 5 due to blunt head trauma. The report was prepared by Dr. Atwine Raymond of Mbarara University of Science and Technology at Mbarara Regional Referral Hospital and the same was received uncontested as Exhibit P2.

The head is a vulnerable and sensitive part of the body and the decision to target the same with such brutal force resulting to the injuries described 10 above leave no doubt in my mind that the intention of the attacker was to

It is therefore my finding that the Prosecution has proved beyond reasonable

cause the death of Namara Bridget which was ultimately achieved.

doubt that the unlawful act was actuated by malice aforethought.

## **4) Participation of the Accused person.**

15 The Accused in his unsworn defence denied the charge of murder testifying that he does not remember his whereabouts on the 05/09/2021 but what he recalls is that on the 10/03/2022 he was at his shop at Ndimuro at around 8:30Pm when the Police came and instructed him to close his shop because he was working beyond curfew time and that he was then taken to Kisoro 20 Police Station where he was detained until the 11/09/2022 when he was informed by the District CID Afande Naturinda that he had been arrested over fighting with his wife which claim he denied. According to the Accused he was asked if he knew Namara Bridget to which he replied that he knew many and that he was shown a picture of a woman bandaged on the bed and 25 he was asked if he knew her to which he replied that she was his friend who 5 he had left in Mbarara. That he was told that he had fought with her a claim that he denied.

It is the evidence of the Accused that he was assaulted and forced to sign a statement with the names "Nsabimana" and yet he is "Sibomana" and later on the 24/03/2022 he was taken to Kisoro Court where charges that he did

10 know were read out to him and he has been on remand ever since. The Accused closed his defence without summoning any witnesses.

It is trite law that where an Accused person raises the defence of alibi the onus is on the Prosecution to discredit this defence and to place the Accused at the scene of crime.

## 15 **See Bogere & Another versus Uganda SCCA No. 0001 of 1997**.

The Prosecution in abid to discharge this legal burden presented Kamugisha Harried (PW1) a 4 year old boy who after this Court conducting a voiredire found to be possessed of sufficient intelligence to testify before this Court but did not understand the nature of an oath.

20 His evidence as a result was received not on oath.

Kamugisha when asked who his father was responded that his father was Gideon and pointed at the Accused and that his mother was Bridget. When asked where his mother was he pointed to the sky saying *"Higuru".* When asked what happened to mummy he replied that my mother was hit on the

25 head with a stone and when asked who hit her he pointed at the Accused

5 saying Gideon. When asked whether he was present when his mother was hit he responded *"yes I was there"* Kamugisha continued to testify that the Accused took his mother's phone and that she was taken to Hospital.

Under cross-examination Kamugisha (PW1) revealed that it was in the morning when the Accused struck his mother and there was light and that

10 he saw him and that there were no people around.

When asked by the defence Counsel which Gideon he meant struck his mother with a stone Kamugisha pointed at the Accused.

The age of Kamugisha (PW1) was corrected by his grandmother Alice Mukama (PW2) as being 5 years as opposed to 4 years.

15 I would accept this to be the true given my impression of the witness (PW1) This would therefore mean that Kamugisha (PW1) in 2021 when the offence is stated to have been committed was only 3 years old. Despite this young age Kamugisha (PW1) clearly identified to Court the Accused as his father calling him even by name as Gideon. He was no doubt familiar with the 20 Accused as his father coupled with the fact that the lighting in place given the morning hours also favoured proper identification.

## **See Abdala Nabulere & another versus Uganda Criminal Appeal No. 0006 of 1978**. - 5 The evidence of Kamugisha Harried (PW1) was given in a candid and forth right manner. I did not detect any deceit in his body language and I am persuaded that in his mind as a child he was speaking the truth to what he had witnessed. Be that as it may **Section 40(3)** of the **Trial on Indictment Act** provides as follows: - 10 "*Where in any proceedings any child of tender years does not in the opinion of the Court understand the nature of an oath his evidence may be received throug not on oath, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of evidence and understands the duty of speaking the truth. Provided that where the evidence admitted by virtue of* - 15 *this subsection is given on behalf of the Prosecution, the Accused shall not be liable to be convicted unless such evidence is corroborated by some material evidence in support thereof implicating him"*

While **Section 10** of the **oaths Act** provides;

*"No person shall be convicted or Judgment given upon the uncorroborated*

20 *evidence of a person who shall have given his or her evidence without oath or affirmation"*

Corroborative evidence can be found in the testimony of Murungi Praise (PW3) who testified that she knew the late Namara Bridget who was her friend and that Bridget had introduced the Accused to her as her husband 25 and that they had been friends for two years. It is her evidence that on the 22/01/2022 the Accused called her on phone her number 0785806434 and 5 that the Accused used Telephone No. 0777730407 and that the Accused introduced himself as Gideon and that she asked him how Bridget was to which the Accused responded asking her if she did not know what had happened to her.

It is the testimony of Murungi (PW3) that she responded that she did not 10 know, to which the Accused replied that he had beaten her up and that she had ended up dying.

According to Murungi her phone had been setup by her to automatically record conversations and that she sent the recording to Bridget's sister one Maureen and she after recorded a Police statement at Mbarara Police Station

15 where she handed over her phone that had the recording.

Murungi (PW3) described her Phone as being Infinix smart 5 black in colour with a crack on the screen.

The Prosecution also presented Mpuga Fred (PW5) who testified that he was a friend to both the Accused and the late Namara Bridget. That it was the 20 late Namara Bridget who introduced the Accused to him as her boyfriend and that he was the one who led the Accused to the family of Namara Bridget for a visit in which Namara Bridget introduced the Accused as her intending marriage partner and in that visit Namara Bridget's father laid down requirements that the Accused had to meet like dowry but that by the time 25 of her death the dowry had not been paid. It is also the evidence of Mpuga (PW5) that after he learnt from one Kasamba Moses an uncle to Namara

- 5 Bridget that she had been terribly assaulted and was admitted at Mbarara Regional Referral Hospital he visited her and found her unconscious with a bandage all over her head with a wound above her eye and bruises on her arm. According to Mpuga 3 days later the Accused called him on phone not using his normal line and that the line that the Accused used had concealed - 10 his identity but that he knew his voice very well. That he asked the Accused to tell him what had happened and the Accused told him that Namara Bridget had gone to Kisoro demanding for her motorcycle and that they had quarreled and she had broken things in the shop. Mpuga states that he asked the Accused how he would reach an accident of using a brick to strike her - 15 but that the Accused replied that he had used a stick to strike her (Enkoni). Mpuga (PW5) further testified that during that period the Accused telephone lines 0778-611253 and 0703-607824 remained unavailable.

Further corroborative evidence was given by D/Sgt Tumwesigye Francis (PW6) the investigating officer who testified that on the 07/09/2021 a 20 report was made at Kisoro Police Station of unlawfull wounding that occurred on the 05/09/2021 by one Tumusiime (PW4) against Sibomana Gideon and that the victim was Namara Bridget his wife.

It is the evidence of Tumwesigye (PW6) that the investigations later turned to one of homicide upon the death of the victim and that attempts to arrest

25 the Accused were futile because he had gone into hiding. According to Tumwesigye (PW6) his investigations later led to information that the

- 5 Accused had by phone revealed to one Murungi (PW3) that he was responsible for assaulting the deceased and that he met Murungi in Mbarara and that she informed him of the same and that the call had been recorded in her phone. Tumwesigye testified that he retrieved the phone that he described as being Infinix smart 5 black in colour with a damaged screen - 10 and that he submitted the phone to the Government Analytical Laboratory to verify the contents therein and that the report was later received and it was returned with the phone on 22/01/2022. The phone was received as Exhibit P5 and PF17A that was requesting for analysis was received as Exhibit P6. - 15 Expert evidence was presented by the Prosecution in Tumushabe Cynthia (PW7) a Government Analyst with the Directorate of Government Analytical Laboratory (DGAL) who testified that the Directorate received an Exhibit marked "A" for analysis from Kisoro Police Station under CRB 604 of 2021 and received by them and marked LAB No. FD085/2022. The Exhibit was of 20 a black dual sim-card Infinix smart phone model X657 with a cracked screen - in the bottom left corner with a pale yellow MTN sim-card.

According to the Analyst (PW7) the request to the Directorate was to;

- 1) Ascertain whether sim-card number 0777730407 is registered in the names of the Accused person (Nsibomana Gideon) - 25 2) To ascertain whether sim-card No. 0785806434 is registered and if so in whose names.

5 3) To ascertain whether there was recorded communication between phone number 0777730407 and 0785806434 and to extract the said communication for possible use in Court.

The request according to Cynthia (PW7) was received on the 15/10/2022 from the investigating officer Tumwesigye Francis.

10 It is the evidence of Cynthia (PW7) that it is not the duty of DGAL to ascertain the names in which phone lines are registered and that this was the duty of telephone companies and this was in regard to the 1st and 2nd request.

However Cynthia testified that during analysis she found an SMS 15 message reading "*You have sent UgX 1000 to Daphine Ayebale, 256785806434 on 30/01/2022 time stamp 10:03 new balance UgX 407200 ID 14891915706"*.

Indicating in her view that the line 078806434 belonged to Daphine Ayebale.

According to Cynthia the 3rd <sup>20</sup> request was a phone call recording of 13 minutes, 33 seconds that was found in the phone and it was a conversation in Runyankole-Rukiga on 22/01/2022 which languages Cynthia (PW7) testified to being familiar with because that is her mother tongue. She states that she extracted the information and placed it on a 25 CD and attached the same to her report. The choice of CD according to

- 5 the witness (PW7) was because it would not allow for any tampering and any attempt to corrupt it would make the same unusable. Cynthia (PW7) also identified the phone in Exhibit P.5 as the phone that she analysed observing that the serial number on the phone tallied with the one in her report. - 10 The Prosecution requested that the CD was played in Court to which the defence had no objection. With the assistance of the Court interpreter the entire dialogue lasting 13 minutes and 33 seconds was translated from Runyonkole-Rukiga to English in open Court.

It therefore forms part of the Court record. I will only reproduce an 15 abridged version of the conversation in this Judgment for ease of

reference and clarity of the decision reached.

The conversation is between a male caller and a female recipient;

Male caller: if do not call you can you not also call me?

Female: I am okay. I have not recognized your voice?

20 Male caller: How is Mbarara?

Female: I have taken long without being there.

Male caller: This is Gideon.

Female: Aaah I had forgotten you.

Male caller: It's been long.

5 Female: I left Mbarara long ago.

Male caller: Where are you now?

Female: I am in Busia.

[I have skipped part of the conversation here]

Female: My phones have been off until the last 2 weeks. I had switched 10 to another line.

Male caller: I also switched off my other line. I got a new line.

[I have skipped part of the conversation here]

Male caller: You also saw what your friend was doing.

Female: [Cock crowing in the background]

15 I do not want anyone to know because she was known to my husband. I have taken a long time without seeing my husband.

Male caller: Things became worse me and my wife got misunderstandings. There are things when I told her she was doing things behind my back. I do not deal with Bayaye.

20 Female: ooh

[I have skipped part of the conversation]

Male caller: Things were worse. We even reached the extent of going to Police. They said she is a mad woman. They even chased her. She came 5 to the village and started beating every child she found at the business. She beat the shop attendant with a bottle on the head injuring him. Female: Laughs.

Male caller: I then came and we quarreled.

Female: I can no longer afford things of quarreling in families.

10 [I have skipped part of the conversation].

Female: Ever since I left Mbarara I switched off my phones. I do not want my husband to call me.

Male caller: I beat her seriously to the extent that she went to Hospital and later died. [Time stamp here is 07 minutes and 57 seconds].

15 Female: Are you sure?

Male caller: Yes.

Female: Ehhh?

Male caller: It is true: I tell you as my friend because she used to accuse me of having an affair with you when I have never been in love with you.

20 Female: When did all this happen?

Male caller: It happened in September.

Female: Now where is the child?

Male caller: The child is with the mother's side. 5 Female: Ehh?

Male caller: Are you sure that you knew nothing?

Female: [Expressess shock] Eh! Eh! Eh you man!!

Male caller: Yes I am telling you. That was in September. I believe that it was the devil who brought her.

10 Even the Police told her it has never happened, if you want take your child. Even my agreement she stole. When they told her we sale the Motorcycle she refused.

She said she cannot build in Kisoro.

Female: This was beyond. That kind of fighting… "*Ayibambe*".

15 Male caller: Things of fighting showing that you are wise does not work for me.

Female: where you not arrested?

Male caller: No.

Female: They did not know?

20 Male caller: Yes they did not know.

It is because it is normal in families as a man fights with a woman.

Female: Even though it is normal they cannot fail to imprison you when they get to know about it.

## 5 [Conversation continues]

The recording of the above mobile phone communication on the CD was received as Exhibit P7 while the report by Cynthia was received as Exhibit P8.

The Accused in his defence tried to be deceptive trying to mask the true 10 nature of his relationship with the deceased Namara Bridget by testifying that when the Police asked him if he knew Namara Bridget he informed them that he knew many and when shown a photograph of a woman bandaged on the head and he was asked if he knew her replied that she was his friend who he had left in Mbarara.

15 The evidence on record clearly shows that the Accused and the Deceased shared a much closer love relationship than that amongst ordinary friends.

Alice Kamukama (PW2) referred to the Accused as the husband of her daughter Namara Bridget and that an introduction ceremony was even 20 held for the two though bride price was yet to be paid. It is also her evidence that the two of them lived together and have one issue in Harried Kamugisha (PW1).

Mpuga Fred (PW5) testified to having led the Accused for the visit to Namara Bridget's family in which she introduced the Accused as her

5 intending marriage partner in which requirements for the marriage were laid down like dowry that the Accused is yet to fulfill.

Kamugisha Harried (PW1) also identified the Accused as his father. It is therefore obvious that the Accused and Namara Bridget were living together as a couple even though they may not have solemnized their 10 marriage fully under the laws of this country. The attempts of the Accused to distance himself from the Deceased Namara Bridget have therefore failed.

I find ample corroborative evidence to that of Kamugisha Harried (PW1) that he saw the Accused used a stone to strike his mother on the head in 15 Exhibit P2 which is the postmortem report to the effect that the Deceased suffered carniocerebral injury (brain dysfunction) due to blunt head trauma. The Accused in his mobile phone conversation with Mpuga Fred (PW5) admits assaulting the Deceased but objects to the use of a brick claiming instead that he used a stick *"Enkoni"*, either way the use of 20 *"Enkoni"* on the head that is a vulnerable part of the body will have the same effect when applied with force.

The evidence of Murungi (PW3) regarding her telephone conversation was given in a candid and forth right manner. There is no evidence that her testimony was propelled by malice or any ill will. Indeed the Accused 25 did not make any wild allegations of this nature either.

- 5 I therefore believe her to be telling the truth that the Accused revealed that he had assaulted the deceased and that she later died. The contents of Exhibit P7 the CD tell the entire story of what transpired. It is imperative to note that the Accused did not contest that he was the male caller in Exhibit P7. The voice was heard in open Court perhaps making 10 it all harder for the Accused to pretend that he wasn't the male caller talking to Murungi in Exhibit P.7 I therefore accept in whole the contents of the communication in Exhibit P7 and find that it corroborates the Prosecution evidence by Kamugisha Harried (PW1) and Murungi Praise (PW3). - 15 The Court in **Rex versus Tubere S/o Ochen [1945] 12 EACA 63** held that the conduct of an Accused person before or after the offence in question might sometimes give an insight into whether he or she participated in the crime.

It is the evidence of Mpuga (PW5) that the Accused's known MTN and 20 Airtel lines were unavailable after the assault, Hospitalisation and death of Namara Bridget.

The Accused also kept calling Mpuga (PW5) using a line in which his identity was concealed.

Indeed the Accused in Exhibit P7 admits that he had switched off (sic) his 25 other line and got a new line. Furthermore according to the investigating

5 officer D/Sgt Tumwesigye the Accused after the assault of Namara Bridget went into hiding and attempts to arrest him were futile.

The Accused also did not attend the burial of his partner as testified to by Alice Mukama (PW2) the mother of the Deceased and Tusiime Thomas (PW4) a cousin to the Deceased and Mpuga (PW5).

10 It is Unimaginable that one as close to the Deceased Namara Bridget as the Accused was and with whom they sired a child and were living together would fail to attend to her while in Hospital and also for no justifiable reason miss her burial.

The conduct of the Accused as highlighted above points irresistibly to the 15 fact that the Accused is guilty of assaulting his partner Namara Bridget leading to her death.

The defence of alibi that the Accused has raised it is my considered opinion has been successfully discredited by the Prosecution and the Accused has been placed at the scene of crime committing the crime.

20 This Court is alive to the fact that the evidence on record is to the effect that the Accused assaulted and gravely injured the Deceased Namara Bridget on the 05/09/2021 and she went into a state of unconsciousness from which she did not recover until her death on 21/09/2021 approximately 16 days later. There is no evidence of any other 5 intervening factor between her being assaulted by the Accused and her death.

This kind of scenario is covered under **Sections 196** and **198** of the **Penal Code Act**, with **Section 196(a)** reading as follows:

"*A person is deemed to have caused the death of another person although* 10 *his or her death is not immediate or sole cause of death in any of the following case.*

- *a) If he or she inflicts bodily injury on another person in consequence of which that person undergoes surgical or medical treatment which causes death…"* - 15 While **Section 198(1)** reads as follows:

*"A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death"*

It therefore follows that the Accused is responsible for the death of 20 Namara Bridget despite the fact that she died 16 days after her assault and Hospitalization.

> It must be pointed out that the evidence in Exhibit P7 and P8 is circumstantial evidence.

The Court in **Temper versus R [1952] AC 480** held that:

5 *"It is also necessary before drawing the inference of the Accused's guilt from circumstantial evidence to be sure that there are no other coexisting circumstances which would weaken or destroy the inference"*

I have not found any other co-existing circumstances which would weaken or destroy the inference that the Accused in this case is guilty of the murder 10 of Namara Bridget.

After considering the evidence adduced by the Prosecution and defence together it is my finding that the Prosecution has proved its case beyond reasonable doubt and in agreement with the Gentleman Assessor I find the Accused guilty of the offence of Murder contrary to **Section 188 and 189** of

15 the **Penal Code Act** and convict him of the same.

Before me,

………………………….. **Samuel Emokor Judge** 20 **27/05/2024**