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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
HCT-01-CR-SC-0289 OF 2022
UGANDA===============================================PROSECUTION
VERSUS
AKUGIZIBWE MUHAMMED
BYAMUKAMA CLIFF
ALITUHA BAPTIST
KYOMUHENDO JOHN
ALIMANYA JOHN alias KIBUBU============================ACCUSED
BEFORE: HON. JUSTICE DAVID S.L. MAKUMBI
JUDGMENT
BACKGROUND:
The Accused in this matter stand indicted of the offence of Murder contrary to Sections 188 and 189 of the Penal Code Act.
It was alleged in the indictment that the accused persons and others still at large on the 15th day of November 2021 at Kaihokwa “B’ Zone in Kabarole District unlawfully killed Bagonza Wilson. The Prosecution’s case is that A1 Akugizibwe Muhammed, best friend to the deceased; A4 Kyomuhendo John, biological son to the deceased; A2 Byamukama Cliff, A3 Alituha Baptist and A5 Alimanya John alias Kibubu all village-mates to the deceased unlawfully killed Bagonza John.
It is specifically alleged that on 15th November 2021, the deceased failed to return home and this prompted his relatives to start looking for him the following day. A1 and A4 joined in the search and radio announcements were made. On 21st November 2021, the search party noticed a hole from where murram had been excavated next to the house of A1 Akugizibwe had been filled and covered. The search party decided to excavate the hole and during the process A1 disappeared. Upon partially uncovering the hole the body of the deceased was discovered in early stages of decomposition. Subsequently the search party detained A2 Byamukama Cliff who had been sharing a house with A1.
It is alleged that when A2 was interrogated he revealed in a charge and caution statement that he along with A3 and A5 had murdered the deceased on the instructions of A1. When A1 was arrested he revealed that A4 had approached him to murder the deceased for a sum of UGX 2,000,000. He further revealed that A4 had given him a deposit of UGX 500,000 and a land sale agreement as security for the balance.
A1 further disclosed that they had buried the deceased in a hole next to his house.
A2, A3, A4 and A5 were subsequently arrested and charged accordingly.
A postmortem examination revealed that the deceased’s cause of death was manual strangulation leading to asphyxia.
A search of A1s house uncovered a copy of a land agreement between Rwamwenge John and Kyomuhendo John. A white sack suspected to have been used in the murder was also recovered along with other items.
A sketch plan of the crime scene was prepared and photographs of the crime scene taken.
THE BURDEN AND STANDARD OF PROOF
According to the time-honoured case of Woolmington v DPP (1935) AC 462, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.
The Standard of Proof in criminal trials is proof beyond reasonable doubt and is met when all the essential ingredients of the offence are proved beyond reasonable doubt. The locus classicus in this regard is the case of Miller v Minister of Pensions (1947) 2 All ER 372 wherein Lord Denning stated at Pages 373-374 that,
“The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice.”
The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991 where it was held that,
“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”
Section 188 of the Penal Code Act provides that,
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder.”
The ingredients apparent in the offence of murder are therefore,
Death of a human being;
Death was caused unlawfully;
Death was caused with malice aforethought; and
The Accused person is responsible for the death.
ANALYSIS OF EVIDENCE AND SUBMISSIONS:
Death may be proved by the production of a post-mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body (see Kimweri v Republic [1968] EA 452).
The Prosecution tendered evidence of a post-mortem report (PF 48B) marked as PEX 1 dated 23rd November 2021 which showed that the cause of death was manual strangulation hence asphyxia. The report indicated that the body was found in a decomposing state with a protruding tongue with widely open eyes. It had internal injuries to wit, congested neck vessels with contusion of the neck muscles.
PW1 Tuhaise Spelanza and PW2 Isingoma Francis stated that they saw the body of the deceased Bagonza Wilson when it was removed from the hole where it had been buried.
PW4 No. 59392, D/Cpl Sempijja Kenneth the Division Scene of Crimes Officer stated that he went to the scene and drew a sketch map and also took photos of the deceased’s body. The photos of the deceased’s body were admitted and marked PEX 5A, 5B, 5C, 5D and 5E respectively.
The Defence did not contest the ingredient of death and there is therefore no doubt that the deceased died.
It is trite law that any homicide (the 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 Gusambizi s/o Wesonge v R [1948] 15 EACA 65).
The postmortem report marked PEX 1 indicated the cause of death as manual strangulation hence asphyxia. The report specified internal injuries to the neck to wit congested neck vessels with contusion of the neck muscles and hyoid bone broken into two pieces. The body was also found to be in early stages of decomposition.
PW1 and PW2 testified that they witnessed the deceased’s body when it was recovered from a hole where it had been hidden under fresh mud.
PW3 Uwimana Henry the Investigating Officer similarly testified that the deceased’s body had been recovered from a pit and that A2 Byamukama Cliff had revealed upon his arrest that a sack was used around the deceased’s neck to suffocate him.
PW4 Sempijja Kenneth the Division Scene of Crimes Officer testified to investigating the scene of crime and taking photographic evidence of the recovery of the body of the deceased. Photographs of the body and location where it was founded were exhibited in evidence as PEX 5A, 5B, 5C, 5D and 5E.
Going by the evidence above involving the cause of death and the circumstances in which the body was found there is no reasonable doubt that the deceased was unlawfully killed. The Defence did not contest this ingredient.
In determining whether there was malice aforethought I take into consideration the case of Mumbere v Uganda – Supreme Court Criminal Appeal No 15 of 2014, where the Supreme Court held that,
“The elements of malice aforethought are well set out under Section 191 of the Penal Code Act as follows:
‘Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances—
(a) an intention to cause the death of any person, whether such 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 such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.’
We also wish to note that this Court in Nandudu Grace & Another v. Uganda, Criminal Appeal No.4 of 2009 reiterated the ratio in the earlier decision of this Court in Francis Coke v. Uganda [1992-93] HCB 43 that the existence of malice aforethought is not a question of opinion but one of fact to be determined from the available evidence.
We also hasten to add that in determining whether the prosecution has proved malice aforethought, the Court has to examine the circumstances surrounding each case. These circumstances include: (i) the nature of the wounds inflicted; (ii) the part of the body injured; (iii) the type of weapon used; (iv) the conduct of the accused person immediately before and after the injuries causing death were inflicted; and, (v) the manner in which the weapon was used-whether repeatedly or not.”
As already highlighted in determining the unlawful nature of the deceased’s death, it is clear that the deceased was strangled at his neck to the point where the hyoid bone in his neck broke. Strangulation as a means of inflicting death is not instantaneous and it therefore means that whoever strangled the deceased meant to kill him.
It is also pertinent that the deceased’s body was hastily buried after his death as picture Exhibits PEX 5A, 5B, 5C, 5D and 5E taken by PW4 gruesomely attest. This was very obviously an attempt to conceal the unlawful killing of the deceased.
The Defence did not contest the ingredient of malice aforethought and to that extent I find that the Prosecution has proved beyond reasonable doubt that there was malice aforethought present in the killing of Bagonza Wilson.
The postmortem report PE 1 outlines injuries sustained around the deceased’s neck and states that the cause of death was asphyxia (suffocation) from manual strangulation.
PW1, PW2 and PW3 also testified to witnessing the recovery of the deceased’s body from a pit where it had been buried under fresh mud.
As concerns the participation of the Accused in the offence the following evidence was received and considered.
PW1 Espelenza Tuhaise testified that she knew A1 as a friend to her late brother Bagonza Wilson. She further identified A2 as someone who was living together with A1 in Kitumba, Kayihokwa. PW1 was not familiar with A3 but knew A4 as a son to the deceased.
PW1 went on to testify that in November 2021 her daughter Kangume Lydia called her to inform her that the deceased had not returned from work. She had then tried to call the deceased whose phone was off and as a result she called A1 to ask whether he had seen the deceased but A1 had told her he had not but that he would see him after he finished mixing mud for bricks. PW1 called A1 again after a while and asked him to check at Virika Hospital but A1 informed her that he had not been admitted. PW1 had then asked A1 to report to police and had then gone to Kitumba, Kayihokwa to mobilize residents to search for the deceased. By PW1s account they searched for two days and during the search A4 and A1 had been present but she was unsure about the other accused persons.
PW1 then testified that on the third day they had received information from one Kevina Bonabana who said she had seen the deceased heading towards A1s home and that she had not seen him again but that he could have taken a different path. Based upon that information, the search party decided to search A1s home as well as other homes that the deceased would visit regularly. PW1 testified that upon searching A1s home they had discovered a hole for an incomplete pit latrine with mud nearby and that when the search party decided to investigate the pit and question A1 he had disappeared.
PW1 further testified that the search party began to dig after they became suspicious that some of the soil from the pit which was intended for bricks had been put back into the hole. PW1 testified that she knew A1 was a bricklayer as when she had initially called him to inquire about her brother he had been mixing mud for bricks. PW1 went on to testify that the searchers dug to a point where they found banana leaves and suckers and upon digging further they came upon human legs. At this point, they called the police who responded promptly to the scene dug further to uncover and retrieve the body. The search party had then traced for A2 as he was known to be living with A1. A2 arrived about the same time the police arrived.
PW1 testified that when she and A4 had gone to the police after some time to follow up the body for burial, the police had detained A4. She further testified that A4 had seemed rude and unconcerned during the search but had also stated upon cross-examination that he may have been stressed about the disappearance. She had stated though on cross-examination that A4 had declined to provide a picture of his father to aid the search and had also declined to provide food and drinks for the searchers. She indicated that she had no idea why A2 and A3 were arrested.
PW2 Isingoma Francis, the Secretary for Defence in Kayihokwa village also testified for the Prosecution. He identified A1 and A4 as residents of the village but described A2 and A3 as migrants to the village. He also confirmed knowing the deceased as a plumber and that his relatives had reported him missing. He testified that they searched for three days and corroborated PW1s statement about receiving information that the deceased had been seen going to A1’s home and not returning. He further testified that when they had gone behind A1’s home they had discovered a pit about 7 feet deep with heap of mud in it. Their suspicions were raised because the mud had been removed from the hole and then put back in. At that point they tried to call A1 who claimed to have taken a child to hospital. PW2 then confirmed the discovery of the deceased’s body and also that A1 was known to be bricklayer.
PW2 testified that A2 was detained by police when they arrived at the scene but he did not know why A3 was detained and that A1 had disappeared while they were digging up the pit.
Upon cross-examination PW2 confirmed that A2 had not been present at the search but was brought when the body was found and that furthermore he was known to make bricks with A1. PW2 also stated that A4 had appeared worried but upon cross-examination had admitted that one could be worried about the disappearance of a parent. However, upon re-examination he further testified that A4 seemed more worried about the search efforts.
PW3 Uwimana Henry testified as investigating officer and stated that A4 reported the disappearance of the deceased on 16th November 2021. He further testified that when A2 was detained at the scene he had revealed that he killed the deceased with all the other accused persons. A plain statement had been taken from A2 in which he stated that they used a sack to strangle the deceased and that A3 and A5 (discharged from trial) had held the legs while A2 and A1 had done the actual strangulation. A2 had then informed police that he had been hired by A1 for UGX 10,000 and that after the strangulation they had thrown the body in the pit and covered it with mud. PW3 testified that based on the information from A2 the police searched A2s house where he was staying with A1 and recovered a sack and a hoe.
PW3 went on to testify that Hima Police apprehended A1 on 26th November 2021. He was then picked up from Hima along with the statement he had made and upon being brought to Fort Portal CPS he recorded a Charge and Caution Statement. On the basis of that statement the police learnt that A4 had hired A1 to kill the deceased for UGX 2,000,000 of which UGX 500,000 had been paid upfront and a land sale agreement provided as security for the balance. The documents proving the transaction were recovered and received in evidence as Prosecution Exhibits 3A, 3B and 3C with PEX 3C being land sale agreement.
PW3 testified on cross-examination that the deceased had gone missing on 15th November 2021 and that A4 had reported the disappearance on 16th November 2021 and the body was recovered on 21st November 2021. He further testified that A3 recorded a plain statement saying he was told to cover the pit. A4 had denied the allegations. PW3 testified that A1 was found in Hima, Kasese district.
PW4 Sempijja Kenneth testified as Scene of Crime Officer who gathered evidence by way of pictures at the scene where the body was found (Exhibited as PEX 5A, 5B, 5C, 5D and 5E). He also tool pictures at post mortem (Exhibited as 6A, 6B, 6C and 6D). He further recovered a sack and a hoe which implements had been allegedly used in the strangulation and burial respectively. These were exhibited in Court as PEX 9B and 9A respectively.
PW5 Musinguzi Isaac testified that he had taken a Charge and Caution statement from A1 at Fort Portal CPS. However Counsel for the Defence objected to the introduction of the statement into evidence on grounds that A1 was repudiating the statement. Counsel further challenged the statement on grounds that it had been made in English and there was no Rutooro translation.
At this point the Court held a Trial within a Trial and determined that the Charge and Caution Statement was inadmissible because PW5 had omitted to have the statement translated and
PW5 (DAIP Musinguzi Isaac) stated that he recorded a Charge and Caution statement from A1. However, this Charge and Caution statement was rejected during the trial within a trial as it was not duly translated and read back to the accused in a language he understood.
With regard to recording confessions to Police Officers Section 23(2) of the Evidence Act provides that,
“The Minister may, after consultation with the Chief Justice, make rules prescribing generally the conduct of and procedure to be followed by police officers when interviewing any person and when recording a statement from any person, in the course of any investigation.”
In accordance with the above, the responsible Minister put in place The Evidence (Statements to Police Officers) Rules and Rule 7 thereunder provides that,
“If a police officer decides that the statement of any person should be taken down in writing and is likely to be tendered in evidence in any proceedings, then—
if there is present any police officer literate in the language being used by that person, the police officer literate in that language shall write down the statement as nearly as possible in the actual words used by the person making the statement; or
if there is not present any police officer literate in the language being used by that person, the statement shall be translated by some person with a knowledge of the language being used and shall be written down by the police officer —
in the language into which it is translated; and
as nearly as possible, and insofar as translation admits, in the words used by the person making the statement.”
The reason for the rules above is clear. A Charge and Caution statement is essentially a confession or an admission of guilt and in the context of the suspect’s inalienable right to be presumed innocent there must be absolutely no doubt that the suspect understands that by making the statement he or she is going to incriminate himself or herself. During the Trial within a Trial PW5 testified that he interacted with A1 in a mixture of Runyankole and Rutooro in order to generate the Charge and Caution statement. Furthermore, PW5 testified that he could not write in Rutooro. It was therefore clear that PW5 did not have a working knowledge of Rutooro. In a matter as sensitive as a confession intended for purposes of a criminal trial, Court cannot leave it to chance that translation has been done effectively. There must be clear evidence that someone with a working knowledge of the language did the translation and such person would have to endorse and certify the record of translation indicating their proficiency or fluency in the language of translation. This is particularly the case where the suspect later repudiates the confession as was the case for A1.
To the extent of the above, this Court excluded the Charge and Caution Statement of A1 as recorded by PW5. The Prosecution closed its case at this point and the Court made a ruling that the Accused all had a case to answer and accordingly put them to their Defence.
It should be noted though that at this point one of the Accused A5 Alimanya John alias Kibubu had to be discharged from the trial. This was because Court noted that A5 appeared to be having trouble understanding his rights and expressing himself properly. Earlier in the trial, a plea of not guilty had been entered for A5 but even then he had struggled to communicate clearly. His lawyer had assured Court at the time that he only had a speech impediment but could understand the proceedings. However, it became apparent to Court that A5 may not be mentally competent to defend himself and an order was made for medical examination of A5. A5 was then transferred to Murchison Bay Prison Hospital for psychiatric evaluation. On the 12th of February 2024 the Court received a medical report from Dr. Hillary Irimaso a Psychiatrist at Murchison Bay Prison. In his report Dr. Irimaso concluded that A5 had neurodevelopmental disorders that could never be corrected. He further concluded that the associated intellectual disability of A5 made him unfit to plead or stand trial and that furthermore he may not be capable of being found criminally responsible.
In light of the above, this Court exercised its inherent powers under Section 17(2)(a) & (c) of the Judicature Act and discharged the Accused into the custody of one his relatives.
All the remaining Accused persons eventually decided to give sworn evidence in their own defence.
DW1 - A1 Akugizibwe Muhammad stated that he had gone to Kasese to do business where he was arrested and denied knowledge of the pit latrine and that he did not participate in the search for the body. He further denied knowledge of the land agreement PEX 3C stating that he had never seen it and that police broke into his house and retrieved his ID. During cross-examination, he stated that he did know PW1 and PW2 and that he was a land broker although used to make bricks. A1 also denied knowledge of A2 Byamukama and making bricks with him and that it was not true he had run away from the village and also that he was never hired to kill the deceased. A1 went on to deny knowledge of A3 and A4 and any knowledge of helping the deceased to sell land.
DW2 – A2 Byamukama Cliff also denied participating in the death of the deceased. He testified that he was part of the group that did the search but was not present when the body was found and that he did not give any names of the co-accused persons to police. He denied knowing the deceased and also denied knowledge of A3 and A4. In cross-examination he stated that he did not know the person who brought him at Kayuhubwa and that it was a man that brought him and left him there. He claimed that he used to graze cattle that he had searched with people he did not know. He testified that it was not true that he told police that A1 hired him to bury the body. He also denied the statement made at the police and claimed that he did not know where the police got the words from.
DW3 – A3 Alituha Baptist testified that he did not know the deceased and that he was arrested at Kitumba. He testified that he joined the search for the deceased but he did not see any of his co-accused during the search. He stated that he was present when the body was found and remained in the village till his arrest after burial.
DW4 – A4 Kyomuhendo John also denied killing the deceased who was his father and testified that he did not know whether the deceased knew A1. He claimed that his late father used to keep his agreements and that he did not know how A1 got his land agreement. He went on to testify that after the disappearance of his father, he reported a case at police. He also testified that the body was discovered and taken to Buhinga for post-mortem examination and he was arrested the following day. He claimed that the body was discovered near someone’s house who he did not know. During cross examination, he testified that he had never seen A1 over the ten years he had been in the village and that it was not true that he killed his father to get money to construct his house. He denied knowledge of using his land agreement as security for getting A1 to kill his father and he also denied knowledge of how the agreement got to A1’s home because it was his late father who was holding the same for him.
With regard to the foregoing evidence, Prosecution basically submitted that all the evidence before the Court corroborated the testimony of PW3 concerning the evidence on the record. Prosecution submitted that upon A2s arrest he had disclosed to police that he together with A1, A3 and A4 had murdered the deceased and that A1 had paid him UGX 10,000 for his role in the murder. It was on the basis of these disclosures that police recovered evidence from A2s house and also arrested A1 who disclosed to police that the whole plot was orchestrated by A4. Prosecution submitted that the physical evidence observed and collected by the police corroborated the information obtained by police in investigations.
On the part of the Defence, Counsel argued that the Prosecution case was wholly circumstantial and that the evidence of a muddy hoe in A1s house was not unusual as he was a bricklayer. Counsel also argued that the sack was equally unremarkable and that there was nothing placing A1 at the scene.
Counsel for the Defence argued with respect to A2 that he too was not placed at the scene of crime. Counsel further argued that with respect to A3 none of the witnesses brought any evidence linking him to the crime and that he had even been present throughout the search for the deceased.
As concerns common intention it was Counsel’s argument that there was no evidence linking the accused in terms of common intention. He further argued that all the accused’s conduct in relation to the disappearance of the deceased was inconsistent with the inference of guilt.
In considering the evidence in this matter, I do agree that the participation of the Accused in the alleged murder is largely based on circumstantial evidence. I therefore take into account the decision of the Supreme Court in Byaruhanga Fodori v Uganda – Criminal Appeal No. 18 of 2002 where it was held that,
“It is trite law that where the prosecution case depends solely on circumstantial evidence, the court must before deciding on a conviction find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty. The court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt.”
Going by the holding above, the inculpatory facts in this matter started with the disappearance of the deceased as established by PW1. PW1 then caused a search by residents of Kayihokwa, Kitumba where the deceased lived. By PW1s account a resident called Kevina Bonabana gave them information that she had last seen the deceased heading toward A1s home and had not seen him leave. The LC1 Secretary for Defence corroborated this stating that someone among the search party said the deceased had been seen going to A1s home.
The clue given to the search party eventually led them to A1s property from where a pit partially filled with mud aroused their suspicions. According to the sketch plan prepared by PW4 and tendered in evidence as PEX 10B the distance between the pit and the Primary Scene of Crime, A1 and A2s house, was 12 to 19 metres. Upon discovery of the body in the pit, the police were called and they immediately detained A2. At this juncture, PW2 had tried to call A1 but he declined to return claiming he had taken a child to hospital. Both PW1 and PW2 confirmed that A1 was initially present for the search but disappeared once searchers started to zero in on the location where the deceased was buried.
Going by the evidence above, the search party did not randomly arrive at A1 and A2’s house. They acted on a clue about the deceased being seen heading there. A1s behaviour in disappearing just as the search narrowed down to his home is indicative of guilty conduct at this point. PW1, PW2 and A2 all testified establishing that A2 was not present when the body was found but he was traced and brought to the scene as he was known to be an associate of A1. A2 was then detained at the scene after granting police access to the premises.
PW3 the investigating officer testified that upon the arrest of A2 he revealed that he had been paid UGX 10,000 by A1 to kill the deceased and he further implicated A1 and A3 as participants in strangling the deceased. Based on this information, police was given a lead that led to the arrest of A1 and A3 and the recovery of a sack and hoe at the primary scene of crime. PW3 then testified that upon arrest A1 initially confessed in a plain statement before being taken to record a charge and caution statement. It was on the basis of information received from A1 that the police learnt about the whole plot involving A4 and also led to the discovery of the incriminating evidence of the sale agreement used as security for payment of the balance of 1.5 Million Shillings to A1.
As much as the Charge and Caution Statement itself was excluded from evidence, this did not render the information received by PW3 in the course of investigations as invalid. The facts of the investigation as testified by both PW3 and PW4 remain relevant and admissible in evidence, as they did not participate in the recording of the impugned Charge and Caution statement. Furthermore, the said facts are relevant as facts necessary to explain or introduce relevant facts under Section 8 of the Evidence Act. Section 8 provides that,
“Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whome any such fact was transacted, are relevant insofar as they are necessary for that purposed.”
Furthermore, Section 29 of the Evidence Act provides that,
“Notwithstanding Sections 23 and 24, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, so much of that information, whether it amounts to a confession or not, as relates directly to the fact thereby discovered, may be proved.”
Section 29 is also supported in the case of Birembo Sebastian and Another v Uganda – Supreme Court Criminal Appeal No. 20 of 2001 wherein it was held that the information to the police by the appellant was incriminatory but was also information leading to the discovery of the act and was therefore admissible under section 29 notwithstanding that it was made to a police constable and was a confession.
The facts as testified by PW3 are relevant to the extent that they explain how the accused persons came to be arrested in relation to the murder of the deceased and the discovery of the act. They are also relevant to the extent that they explain the recovery of evidence at both the primary and secondary scenes of crime. They further explain the involvement of all the accused persons in the murder. The admission and relevance of the investigative evidence of PW3 is further supported in the case of Director of Public Prosecutions v Kilbourne (1973) AC 729 wherein Lord Kilbourne defined relevant evidence in these terms,
“Evidence is relevant if it is logically probative/disapprobative of some matters which requires proof. The term logical probativeness does not itself express the element of experience (emphasis added). The relevant evidence is evidence which makes the matter which requires proof more or less probable.”
In this case, the relevance of PW3’s evidence and indeed that of any other prosecution witness that did not directly experience certain facts remains relevant to the extent that it increases the probability that the accused persons participated in the murder. In this regard, I have in mind the evidence of PW1 and PW2 who explained how they zeroed in on A1 and A2s homestead. They did not see the deceased go to that location but another person who witnessed the deceased go to the murder scene and this evidence became relevant to the extent that explained how the search party found the body and furthermore raised the probability that A1 and A2 were somehow involved in the murder.
At this point I also note that the available evidence established the murder scene as A1 and A2’s homestead. Both PW1 and PW2 testified identifying the location in that regard when they stated that they were told that the deceased was last seen heading toward A1s home. PW2 also testified that when members of the search party brought A2 to the scene, he had keys to the house near the pit where the deceased had been dumped.
As much as all of the accused denied participation in the murder, none of them put forward any evidence to substantially rebut how the search party came to zero in on the murder scene. Furthermore, there was no clear evidence in rebuttal of how the police came to arrest the accused persons and none of the accused put forward any explanation by way of alibi.
Therefore, I find that based on the available evidence the Prosecution has established that A1, A2 and A3 participated in the murder of Bagonza Wilson.
As concerns the participation of A4, this again flows from the testimony of PW3 and the subsequent evidence recovered by the police. According to PW3, it was A4 who was the architect of the plot to murder his own father Bagonza Wilson. This evidence is substantially corroborated by the fact that the police recovered A4s land sale agreement (PEx 3C) from A1s house as detailed in the Exhibit Slip (PEx 4). This agreement is what police learnt was security for payment of the balance promised by A4 to A1 for killing his father.
A1 denied knowledge of how the agreement got to his house. A4 also similarly denied knowledge of how the agreement got to A1s house but stated that his father was the one keeping the agreement. In both cases the explanations about the agreement were inadequate given the scenario established in the Prosecution evidence. There is no reason why a 30+ year old man living on his own would want to leave his land agreement with his father and even if that were to be believed it still does not explain how the agreement got to A1s home. The only logical explanation remained that A4 had indeed given it to A1 in furtherance of the nefarious plot to kill Bagonza Wilson.
In light of the above Section 20 of the Penal Code Act provides that,
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence.”
Furthermore, in Uganda v Sebaganda (1977) HCB 7, it was held that where there is a common intention it is immaterial who inflicts the fatal injury to the deceased as long as the injury is inflicted when the parties are carrying out a common purpose and that in such a case one is responsible for the acts of the other.
Going by Section 20 of the Penal Code Act and the above-mentioned case, it is immaterial that A4 did not participate in the killing. The police conclusively established that A4 was the architect of the plot that led to the killing of his own father when he procured the services of A1 in the manner and circumstances I have already referenced in this judgment. To that extent, I find that the Prosecution has established beyond reasonable doubt that A4 participated in the murder of his own father.
I also note that whereas A1 claimed that he had gone to Kasese to do business, I am fully persuaded that having initially been present during the search, his subsequent disappearance and reluctance to return to the scene of crime as searchers zeroed in on his home was a clear sign of guilt. This is in keeping with the Supreme Court holding in Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995 that,
“The disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because such sudden disappearance from the area is incompatible with innocent conduct of such a person.”
In light of the above, I find that the inculpatory facts as I have laid them out are incapable of any other explanation other than the guilt of all the accused persons in this matter.
CONVICTION:
I disagree with the Assessors regarding their view that there was reasonable doubt about the participation of A3. It is clear that he was arrested on account of information secured by the police in the course of their investigations. Furthermore, beyond simply denying involvement, A3 did not provide any information as to his whereabouts around the time the deceased went missing.
I therefore only partially agree with the Assessors and find all the Accused persons in this matter guilty of the murder of Bagonza Wilson.
SENTENCE:
I have taken into account the fact that all the convicts are first time offenders.
Convict Akugizibwe Muhammad:
As concerns this convict, as much as he is a father to young children, I take into account the fact that he was the one who is on record as having entered into a deplorable business transaction to kill the deceased in this matter. To him the taking of a human life and more so that of someone who was his friend was worth a mere UGX 2 Million Shillings. He also accepted to hold a land agreement as security upon completion of the terrible deed. This convict handled this matter as if he was transacting the sale of cattle! This was clearly a premeditated act made even more heinous by the way in which the body of the deceased was unceremoniously discarded in a pit thereby robbing the deceased of his dignity even in death. It is unfortunate that by his incarceration it is his young family that is also now subjected to hardships but a deterrent message has to be sent in this matter.
I therefore sentence Convict Akugizibwe Muhammad to 30 years imprisonment less time spent on remand of 2 years, 6 months and 16 days. He shall therefore be imprisoned for a term of 27 years, 5 months and 14 days.
Convict Byamukama Cliff:
I have taken into account the young age of this convict, which, aside from the fact that he is a first offender, seems to be the primary mitigating factor. According to the evidence, he accepted a sum of UGX 10,000 to involve himself in the murder of an innocent old man. It begs the question to me what sort of moral upbringing this convict received in his formative years to reduce the value of life to only UGX 10,000! Nevertheless, it seems to me that the convict is a victim of a seriously misguided youthful upbringing and may not be beyond reform. However, because he was involved in taking a life there must be a deterrent message put out especially to his fellow youth that such activities are not acceptable in civilized society.
I therefore sentence Convict Byamukama Cliff to 25 years imprisonment less time spent on remand of 2 years, 6 months and 16 days. He shall therefore serve a term of imprisonment of 22 years, 5 months and 14 days.
Convict Alituha Baptist:
I have taken into account this convict’s background as a first time offender and being a father of a young children. The evidence in this matter is that he was present during the murder and restrained the deceased as he was being murdered. He also participated in trying to conceal the crime. His behaviour made him equally culpable as his fellow convicts in this matter. It is not clear though what he stood to benefit unlike the others for whom financial gain was clearly the motivating factor. Nevertheless, he was party to the loss of an innocent life and to that extent he must answer for the same.
I do therefore sentence Convict Alituha Cliff to 20 years imprisonment less time spent on remand of 2 years, 6 months and 16 days. He shall therefore serve a term of imprisonment of 17 years, 5 months and 14 days.
Convict Kyomuhendo John:
I have taken into account the fact that Kyomuhendo John is a first time offender and that he has a young family.
However, the facts in this matter are such that he was the primary architect of a premeditated scheme to murder his own father. To him the life of his own father was worth UGX 2 Million with a land title as security. He viewed the life of the person who was responsible for raising him as no more than disposable property. This was betrayal of the worst kind where a child turns on a parent to the point of taking the life of the parent. As human beings the expectation is that we look after our parents in their old age. Convict Kyomuhendo instead decided that his father was disposable and in so doing hatched a scheme that led to his violent death and undignified burial in a pit like an animal. This is not the sort of behaviour that should be entertained in civilized society. Furthermore, throughout this matter he has not demonstrated any form of remorse about the circumstances he caused leading to the death of his father.
To the extent of the above, I do hereby sentence Convict Kyomuhendo John to 35 years imprisonment less time on remand of 2 years, 6 months and 16 days. He shall therefore be imprisoned for 32 years, 5 months and 14 days.
So ordered.
Right of Appeal explained.
David S.L. Makumbi
JUDGE
18/06/24
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