THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT RUKUNGIRI
HCT – 05 – CR –CSC – 0057 OF 2008
UGANDA ::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
VERSUS
BEINOMUGISHA GERALD ::::::::::::::::::::::::: ACCUSED
BEFORE: HON. JUSTICE AUGUSTUS KANIA
PROCEEDINGS:
18/8/2008
Ms Janet Kitimbo – Resident State Attorney
Mr. Arthur Ndimbirwe – for the accused on State brief
Mr. Turinawe C. court/Clerk
Accused in Court.
Ms Kitimbo:
We propose 19/8/2008 for plea and hearing.
Court:
Adjourned for plea and hearing on 19/8/2008. The accused is remanded.
19/8/2008
Mr. Martin Rukundo – Resident State Attorney
Mr. Ndimbirwe – for the accused
Accused in Court
Mr. Turinawe – Court/Clerk
Mr. Rukundo –
This matter is for plea and hearing. I have 3 witnesses in Court and I am ready to proceed.
Mr. Ndimbirwe:
I am also ready.
Court:
Indictment read and explained to the accused.
Accused:
Plea of Not Guilty entered.
Assessors: Ms Asiimwe Grace
Ms Rwentaro Beth
Mr. Turinawe:
We are agreeing on medical evidence, comprised in the Post-mortem report compiled by Dr. Baguma Joseph of Nalubaale Hospital dated 9/1/2006. He examined the body Kyomukama Dinavence at 4.00p.m. The body was that of a female of 165cm in height, the appeared age of 45 years. The body was well nourished.
The following external injuries were established. Exposure cut wound on the left cheek, a cut wound on the temporal left area, a wound on the lateral aspect of the neck and internal injuries included trisection of the left artery and the left facular vein. The cause of death was cerebral hypoxia secondary to haemorrhagic shock. The body was identified to the medical doctor by Byengana Josephat. Dr. Baguma signed and stamped the post mortem with the stamp of the medical superintendent of Nalubaale Hospital.
The accused: ……………………………….
Mr. Rukundo ………………………………..
Mr. Ndimbirwe ……………………………….
A. Kania J. …………………………………
Mr. Kitimbo:
We are also agreeing on the evidence of the medical examination of the accused on PF 24. It was done by Dr. Rutairwa of Kebson Health Centre on 15/1/2006. He found the accused to be of the apparent age of 49 years, had no injuries and his mental status was normal. The doctor signed and affixed the stamp of Kebson Hospital in Rukungiri District. He also dated it 18/01/2006.
The accused: ……………………………….
Mr. Rukundo ………………………………..
Resident State Attorney
Mr. Ndimbirwe ……………………………….
For the accused
A. Kania J. …………………………………
Both Lady Assessors sworn
PW3 Tushemerirwe Winnie Catholic sworn, 21 years old, teacher of Rusheshe village Buhunga Sub-county – Rugando Cell in Rukungiri District. I know the accused – he is Beinomugisha Gerald. He is my father. He was living in Rugando Cell and I lived with him. I knew Kyomukama Dinavance who was my mother. She died 9/1/2006. We were living together me, my mother and father.
On 8/1/2006 we had our supper with both my parents – us the children and our parents. After supper we prayed and went to sleep. As we were sleeping my younger sister Nukunda Ruth raised an alarm. On hearing the alarm I woke up and heard noise in my mother’s room. She was calling for help. I tried to listen if my father was helping my mother but there was no sign that he was. I then banged the door to my mother’s room but it could not open because there was a pole supporting it. After a lot of effort it opened. When it opened I met a man at the door armed with something looking like a panga. He asked me where I was going. I did not identify the man visually but I identified him by the voice as my father. He did not say anything else. I met the man at the door way of my mother’s room.
The man got out of the room and I entered the room. My mother was standing in the room and she said “my husband has killed me”. These were the only wards she ever said.
I removed her from the bedroom and I took her outside. She was very weak and staggering. I made her lie down on the compound. Some neighbours had answered the alarm – these were Mugisha Francis Bekunda, Alex, and Kalega Silver. These are the ones I recognised. They had a torch and I saw my mother blood soaked so I could not observe the injuries. The men covered deceased in a blanket and she was taken to Rusheshe Health Centre. I went with these neighbours to Rusheshe Health Centre and on arriving there we were referred to Nyakibale Hospital. We put her in a vehicle and took her to Nyakibale Hospital. She was due to be taken to the theatre but on checking her pulse it was found she had already died. We took the body back home but on our way home we made a report at Ruhunge Police Post. On the way to Hospital we tried to report to the police but we were not attended to as no one opened for us. We reached home at 1.00a.m.
When we went home, we found a ladder standing on the wall of our mother’s room. We also found a part of a rosary on the floor – on checking the body of my mother part of this same rosary was stuck on the neck of the deceased. In the corridor there was a table – Between the room of the deceased and the corridor there is a wall. Before we went to sleep this table was in the sitting room, the ladder in the room was blood stained, the walls, floor and the clothes were all blood stained. Police came, took the ladder and the Rosary. My parents were not sleeping in the same room. There rooms were opposite each other – All rooms had doors and my mother always locked her room when she went to sleep. I know how they started sleeping separately. My mother went for an AIDS test in August 2005 and found she was negative. She had gone to test because she noticed that my father had signs of AIDS. She had also seen a certain document which showed that my father had tested positive for AIDS. When my mother found she was negative she told us. My parents then developed a misunderstanding.
One day we went to work in the garden and my mother informed us that my father had vowed to kill her. She picked her things and went to her parent’s home. My father followed her and asked her to return. After some time she came back but this was on the understanding that she would not sleep in the same room with my father. This was agreed upon in a family meeting involving my elder sister and 2 sisters. I was present at this meeting. So were my sisters and brothers. The family lived in peace until the time of the death of my mother.
The incident took place at 11.00p.m. My sister went out and made an alarm after she had made one in the house.
After taking my mother outside my father was no where. I next saw my father at 11.00a.m the following morning. At 1.00p.m, the police came and took the body to the hospital for the post-mortem. It was later returned and buried and I attended the burial. My father who had been arrested was taken to the police.
Augustus Kania
Judge
19/08/2008
Cross Examination by Mr. Ndimbirwe:- The relationship between my parents was good after she came back from her parents home. There was no light in the house during this incident. Yes I identified the man as my father by his voice. There are people with voices similar to my father’s. My father was employed as a watchman at Kalulika. Secondary school but in the night in question he did not work. He was in the house.
We checked the room of the accused and found blood stains on his sheets. As I was going to my mother’s house the assailant was leaving the bedroom. The only thing I heard the deceased say was “my husband has killed me” – she tried to say other things but they did not come out.
My sister Natukunda was making the alarm in the sitting room and then she went outside and continued making an alarm. She was say – people came to assist us”. She never went to the room of my mother. I found the ladder relevant because it was leaning on the wall of my mother’s room. At supper we sat on chairs and ate from the table – the chairs were in the sitting room but the same table was in the corridor. Though Natukunda made an alarm I also heard noise as if a cow was being slaughtered.
I believe it was my father who killed my mother because I heard his voice saying “Winnie where are you going”.
Augustus Kania
Judge
19/8/2008
Re-examination Rukundo: I don’t know if anybody who has a similar voice to that of my father. I have never heard any body’s voice similar to my father’s.
Augustus Kania
Judge
19/08/2008
PW4 Akanyijuka Abel Catholic Sworn, 16 years old, a student of Kigezi High School. When not in school I reside at Rukando village, Rusheshe T/C Buhunga Sub-county in Rukungiri District.
I know the accused Beinomugisha Gerald, he is my father. I know Kyomukama Dinavence who was my mother. She died 9/1/006.
One day I was cutting broom when I saw a ladder on the bathroom. I removed the ladder for firewood because I thought it was little use. As I was taking the ladder for making a fire my father told me to return it.
On 8/1/2006 all our family members had supper – my parents, my four elder sisters and my younger sister. After supper all of us went to sleep. I was sleeping in a separate house next to the kitchen.
I heard people making noise outside. I woke up and on going out I found my sisters Ruth P3 and Natukunda Ruth making an alarm and found my mother typing on the compound covered in blood. I asked what had happened to her and they informed me she had been out. I asked who had attacked my mother and they told me they were suspecting my father because he was not in the house.
Neighbours answered the alarm and my mother was taken to Rusheshe Health Centre. We were referred to Nyakibale Hospital. On our way PW3 Winnie went to the police – later we proceeded and on arrival at Nalubaale the doctor confirmed her dear. We took her body home. All this long my father was not around though he had slept in the house.
In the morning when I went to my mother’s bedroom I found the very ladder I wanted to use for firewood. I suspected my father because he had threatened to kill my mother. I knew this because one day as we were in the garden. I heard my mother and father quarrelling and I heard my father say “One day I will kill you”. During, those days he used to sharpen his panga without using it. My mother came to us in the garden and informed us that because of the threat she was leaving to go to her parents’ home and that he would not want to be killed. She went and stayed there for about 2 weeks.
Before their quarrel my father went for an AIDS test and he was found to be positive. It was agreed by my parents on the advice of my brothers that they would sleep in separate rooms. The panga my father used to sharpen an old panga with a rubber handle. The ladder was about 4½ feet long and 1 foot wide.
I next saw my father at 2.00p.m in the bush under a eucalyptus plantation. I saw him on the plantation when I was asked to take him a blanket by the police to bring him home. He had been discovered by young children who informed my uncle Tinako who then rang the police. When I took the blanket the police were carrying him and they were in a banana plantation.
The doors of our main house were intact but the wooden bolt to the door separating the sitting room and the corridor was broken. I attended the burial of my mother at our home.
August Kania
Judge
19/8/2008
Cross examination by Mr. Ndimbirwe:-
The relationship between me and my father bad because he used to beat me badly. As a result I did not love him very much. I want him away from me. Natukunda and PW3 were the ones making an alarm. They were just saying – “Come and assist us our mother has been killed”.
It is true the accused was a night watchman but that night he did not go to work. There was nothing wrong between my father and mother. During all this confusion I did not see the accused. I just saw him again the following morning. I was asked to take a blanket because my father could not walk. I don’t know what had happened to him. My mother was killed by my father because he had threatened to kill her. I did not see anybody put the ladder in my mother’s to room.
Re-examination by Mr.Rukundo:
I want my father away from me because he killed my mother who was helping me more than him.
August Kania
Judge
19/8/2008
Cross examination by lady Assessor Asiimwe Grace:
I said as we were digging I heard my parents quarrelling and later when we went home my mother told us my father had threatened her so she was living for her parents’ home. He was a night watchman but during the day he would be home.
Augustus Kania
Judge
19/8/2008
Cross Examination by Ms Rwentaro Beth:
My mother informed us she was going to report the threat to her life to the LCI Chairman.
Augustus Kania
Judge
19/8/2008
PW5 Joseph Byehangana: 44 years Catholic Sworn, self employed/peasant of Ruganda Cell, Buhunga Parish Buhunga Sub/County. I know the accused Gerald Beinomugisha. He is my cousin – first cousin. I knew his wife Kamukama Dinavance who is deceased. He died 9/1/2006. I was not present when she died. I was sleeping at 1.30a.m when I was called by on Kisiipi and I went to the home of the accused Kasiipi had told me the accused had cut his wife. On arrival I found the deceased had already been taken to Nakiwaale Hospital. After 2 hours the body of the deceased was brought home.
I looked at the body and I observed cut wounds in the head and neck. Those were the injuries I saw – They were deep cuts. In the morning I reported to the LCI Chairman the late Brazi Muchuche. I went with the chairman and reported at Buhunga Police Post.
The police from Rukungiri went and picked the body of the deceased and took it to Nyakibaale Hospital and I accompanied them. I identified the body of the deceased I also told the doctor the name of the accused. A Post Mortem was done.
In 2005 the accused approached me for advice. He told me that the deceased had accused him of being HIV positive as a result of which she had moved to a separate bedroom. He told me he was going to leave his wife. I advised him that he should remain on his home. I didn’t know of any other dispute.
August Kania
Judge
19/8/2008
Cross Examination by Ndimbirwe – Kasiipi is the man who informed me that the accused had cut his wife. He did not tell me how he knew the accused had cut his wife. True after the body was brought from the hospital I saw the body and I became afraid and moved away.
Augustus Kania
Judge
19/8/2008
Re-examination: Nil
Mr. Rukundo:- No.4439 SPC
PW6: KASHUNU SIMON Catholic sworn, 31 years Police Officer of Buhunga Police Post – have been there since 2005. On 9/1/2006 at around 1.00a.m I was at the Police Post when a vehicle came and hooted. In the vehicle there was a woman lying – when asked the other occupants reported that she had been cut by her husband. The O/C registered the complaint in the SD – the person who reported was the deceased’s daughter Winnie. I did not hear her give the names of the victim. The O/C told them to rush the patient to Nakivaale Hospital.
The O/C instructed us to go and arrest the accused. As me prayed to go, the vehicle carrying the deceased returned after 30 minutes and we learned the patient had died. We boarded the vehicle but on the way we disembarked and went on foot so that the accused would not escape. We found the gate at the back of the house open – the back door of the main house was also open. Before I could get to the main door my colleague was already knocking at the front door of the main house. We entered the house by the back door – the rooms occupied by the accused and the deceased were opposite each other. On the door to the room of the deceased, on the floor and on the mosquito net there was blood. There was a Rosary on the floor and a ladder leaning on the wall of the room of the deceased.
We then started looking for the accused. We went to his bedroom but it was closed. When we pushed it, it opened but the accused was not in. We found empty bottles of soda and Uganda Waragi – there was blood on some of these bottles.
We went out and searched the surrounding area. At around 3.00a.m we gave up the search. The next day at 10.00a.m a boda boda cyclist came to the Police Post and informed us that the accused had been sighted in the bush. The O/C dispatched me and Naibuga and we found the accused in the bottom of the opposite hill in a garden of sorghum which had freshly been harvested. Near this sorghum field there was an eucalyptus plantation. The accused was lying down and found him in possession of a panga. He had vomited and the vomitum was smelling like acaricides.
We rang our boss the O/C to tell him that the accused was alive though he was not responding. The O/C told us to guard the accused so that he is not killed. At 1.30p.m a vehicle came with Policemen from Rukungiri and the people helped us carry him to the vehicle. The accused and the body of the deceased were taken in the vehicle. We also loaded the ladder, the panga, rosary, I saw and observed the body with very severe cut wounds along the left side of the head and the neck, the panga was very sharp and had a rubber handle. It was a used panga, the ladder was about 4½ feet long and about a feet wide. The accused was arrested.
This is the panga I have described. This is the rubber handle Mr. Rukundo. I apply to tender the panga for identification.
Mr. Ndimbirwe: I have no objection.
Court: Tendered and marked IDI.
Augustus Kania
Judge
19/8/2008
This is the ladder and the rosary which were handled to the O/C. The O/C marked the exhibits in my presence.
Augustus Kania
Judge
Mr. Rukundo – I apply to tender the ladder and the rosary for identification.
Mr. Ndimbirwe – I have no objection.
Court: The ladder is tendered for identification and marked ID2 while the rosary is marked ID3.
Augustus Kania
Judge
19/8/2008
Mr. Ndimbirwe – I was not the investigation officer – and I did not take the statement from Winnie. I found the ladder on the wall of the bedroom of deceased and suspected it was used for accessing the room. I did not take the bottles as exhibits. I found the vomit where the accused was lying in the bush and had traces of vomit on his mouth. I found the panga besides him and concluded it could have been used for cutting the deceased. I don’t know for sure if the accused cut the deceased.
Augustus Kania
Judge
19/8/2008
Cross examination by Ms Rwentaro Beth:
The panga had blood stains on the blade. The shirt was stained with blood.
Augustus Kania
Judge
19/8/2008
Mr. Rukundo: This is the last witness I have in Court to-day. I pray for an adjournment.
Court:
Adjourned to 1/9/2008 for further hearing the accused is remanded.
Augustus Kania
Judge
19/8/2008
1/9/2008
Mr. Rukundo – Resident State Attorney
Mr. Ndimbirwe – for the accused
The accused in Court
Mr. Turinawe – Court Clerk
Both assessors in Court.
Mr. Rukundo: I have witnesses in court but I find them not very relevant. I am accordingly closing the prosecution case.
Mr. Ndimbirwe: I leave it to Court.
Court – Ruling:
From the evidence so far on record and taking into account the principles and the law applicable in determining whether the prosecution has made out a prima facie case or not at the close of its case as laid down in the case of R.T. Bhat Vs. R [1957] EA 332, I find that the prosecution has made out a prima facie case against the accused warranting putting the accused is hereby put on his defence.
August Kania
Judge
1/9/2008
Section 73 complied with:
Accused – I shall make a sworn statement.
DW1 Beinomugisha Gerald – Catholic sworn – 58 years old. I was a night watchman at Katulika Secondary School and a peasant. I started working 9/1/2006. I knew Kamukama Denavence who was my wife since 1980.
Yes I heard she was hacked to death. I don’t know how she met her death. I was at my place of work. I ate my supper at 6.00p.m and left for me place of work and I was at the place of work the whole night. I came home the next day at 9.00a.m. As I was going home, a policeman in a vehicle parked in-front of me and ordered me to board the vehicle – so he arrested. When we reached Rukungiri Police Station I was informed that my wife had died and I was suspected.
I saw the witnesses who testified in Court – two were my children and the third was my cousin. I don’t know why they were implicating me. I was on good terms with members of my family. A ladder was mentioned but I had never seen that ladder. I and my wife started sleeping in separate rooms three years before the incident. It was a family planning method. We had agreed to sleep in separate rooms. The school I was working at was one mile away. If one made an alarm from my home when I was at the place of work I would not hear it. Not true that I used to sharpen my panga, which I would use only when I went to work in my banana plantation I did my guard duties with a torch and a stick.
Not true I was found in a tree shamba. I deny anything to do with my wife.
On 5/1/2006 we were called to get our salaries. I was paid shs.100,000/= for two months. Whenever I received my salary I gave it to my wife. On 7/1/2006 I sold a pig at shs.70,000/= and gave it to my wife for safe keeping.
9/1/2006 I went to my place of work. I waited for the day watchman to receive me. At 9.00a.m I closed the gate and left but on my way the police arrested me. I was on guard at the school alone.
When the police told me that my wife had been killed, I told them it was not true because if it was true some body would have gone to my place of work and told me.
Augustus Kania
Judge
1/9/2008
Mr. Rukundo:- my children were studying including Nshemererwe Winnie who had finished S4. Abel Aijuka was also studying and it was I paying school fees for all. I was responsible for everything. We had not problems among us in the family. I don’t know why the children implicated me in this offence.
I don’t know how to write – but I can write my name though not properly. I made a statement at the police. This is the statement because the signature on it is mine. The statement was not read back to me.
I did not state that I had gone to drink at the Rusheshe Trading Centre on 9/1/2006. it is also a lie that I told them that while there I heard an alarm. What you are reading to me is not what I told the police.
I was not arrested from a Sorghum garden. Not true I killed my wife.
Augustus Kania
Judge
1/9/2008
Re-examination : Nil
Mr. Ndimbirwe: That is the close of the prosecution case. The case can be set for submission.
Court: Adjourned to 2/9/20008 for final submission, the accused is remanded.
Augustus Kania
Judge
1/9/2008
2/9/2008
Mr. Rukundo – Resident State Attorney
Mr. Ndimbirwe – for the accused
Accused in Court
Mr. Turinawe – Court Clerk
Both Assessors present
Mr. Rukundo – The accused is indicted for murder C/SS 188 & 189 of PCA. This offence has 4 ingredients.
The fact of death
The death was unlawful
Death was caused with malice aforethought
Participation of the accused.
To prove the 1st ingredient the prosecution relied on the evidence of Dr. Baguma who examined the body of Denavance. Kyomukama which was identified to him by PW5 Beyeingana Josephat PW5 and PW4 testified that the deceased died and they attended the burial. I submit the prosecution has proved this ingredient beyond reasonable doubt.
Whether the death was unlawfully caused, it is not trite that every homicide is unlawful unless it is accidental or excusable. In this case the death was neither accidental nor justifiable. I submit that this ingredient has been proud.
Participation of the accused: (evidence of PW3 Tushemereirwe Winnie and PW4 Akaijuka Abel who testified that on the fateful day they had supper with the accused and all went to sleep.
PW3 told Court that her mother raised an alarm. She went to her mom to find out and met an assailant coming out of the room and he asked Winnie where are you going, she identified is the one of the accused. The deceased also made a dying declaration that her husband had killed her. The accused was found missing from his room and house.
PW6 SPC Kashunu Simon testified they searched for the accused in vain around the house only to be found in the bush the following morning smelling acaricides. The above evidence is sufficient to prove the participation of the accused beyond reasonable doubt.
Malice aforethought – the evidence of PW1 medical Dr. who examined the body found several wounds on the head and the neck. PW4 testified that the body had deep cuts on the head and neck. Looking at the nature of these injuries it is clear the perpetrator included to cause the death of the deceased. Several injuries were inflicted on delicate parts of the body. I submit this ingredient has been proved beyond reasonable doubt and that all ingredients have been proved to same standard of proof. I invite you to find so and convict the accused.
Augustus Kania
Judge
2/9/2008
Mr. Ndimbirwe:
We don’t dispute the fact of the death of the deceased and that it was unlawfully cause. We dispute there was malice aforethought and the participation of the accused.
The only evidence linking the accused to the offence is that of Winnie Nshemereirwe – who stated he met a person to the door of her mother and spoke to her in a voice similar to that of her father. In a situation of this nature – there was confusion and panic – it is not reliable to say a person can recognise a value. It is possible the value could be either of her father or not. This doubt should be resolved in favour of the accused.
She also stated that the only words her mother said were “my husband has killed me.”
This is a dying declaration and it is unsafe to convict on it since it is not corroborated. PW4 the son of the accused told court that he suspected his father – suspicion has never been the basis of a conviction. Even the evidence of Winnie is based on suspicion. In the result the prosecution has failed to prove that the accused committed the offence.
With regard to malice aforethought it can not positively and the offence was committed with malice aforethought. It is true malice aforethought can be deduced from the injuries the weapon and the parts of the body and the number of injuries. This happened at night so it can not be said the assailant had targeted a vulnerable part of the body. It is suspected a panga was used but it was not exhibited. It is alleged a panga was found where the accused was arrested but it is not known who put it there. It is also on record that the accused was found unconscious. All in all I submit the offence and guilt of the accused has not been proved beyond reasonable doubt. The prosecution has failed in this. I invite you to find the accused not guilty and to acquit him.
Augustus Kania
Judge
2/9/2008
Mr. Rukundo – I have nothing in reply.
Court:
The accused is reminded to 4/9/2005 when the case will come up for summing up to the lady assessors.
Augustus Kania
Judge
2/9/2008
4/9/2008
Mr. Rukundo – Resident State Attorney
Mr. Ndimbirwe – for the accused
Assessors: Asiimwe Grace
Ms Rwentaro Beth
Mr. Turinawe – Court Clerk
Accused in Court.
Court: Summing up to Assessors done in open Court, adjourned to 4/9/2008 in the afternoon for opinion of the Assessors. Accused remanded.
Augustus Kania
Judge
4/9/2008
Later at 4.50 p.m
Court as before
Rukundo: This matter is for the Assessors opinion.
Lady Assessor Grace Asiimwe:
According to the evidence given by both sides we have come up with this opinion.
Fact of the death of the deceased was proved by PW1 Dr. Baguma, PW3 Winne and PW4 Abel.
PW3, PW4 and PW5 all testified that they attended the burial. This ingredient has been proved beyond reasonable doubt.
Was the death unlawful? Every killing is unlawful unless accidentally caused or sanctioned by law. PW3 gave evidence that the deceased was attacked and severely wounded. From this it has been proved beyond reasonable doubt the death was unlawfully caused.
PW3 Nshemererwe Winnie positively indentified the accused by voice. The last words of the deaceased “my husband has killed me” also proves the participation of the accused. PW3 also said the accused slept in the house. The 4th ingredient has been proved beyond reasonable doubt.
The defence of the accused should be ignored since the evidence of PW3 puts the accused squarely at the scene. We invite you to find the accused guilty of murder of the deceased and to convict him accordingly.
Augustus Kania
Judge
4/9/2008
Lady: Assessor Rwentaro Beth:
I concur with my fellow Assessor and I advise you to find the accused guilty as charged and to convict him accordingly.
Augustus Kania
Judge
4/9/2008
Court: Adjourned to 9/9/2008 for judgment. Accused remanded.
Augustus Kania
Judge
4/9/2008
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