Uganda v Nakabuye Yudaya (Criminal Session No. 194 of 2016) [2019] UGHCCRD 59 (27 March 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION NO. 194 OF 2016 UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                                    VERSUS NAKABUYE YUDAYA:::::::::::::::::::::::::::::::::::::::::::::::ACCUSED      BEFORE: HON. JUSTICE EMMANUEL BAGUMA                                                   RULING The accused person, Nakabuye Yudaya was indicted with the offence of murder contrary to Sections 188 and 189 of the P.C.A. It was alleged that the accused person on the 22nd day of February 2016 at Bukasa village, Mpigi district with malice aforethought unlawfully killed Kizza Joseph. The offence of Murder has mainly four ingredients which must be proved beyond reasonable doubt. The death of a Person named in the indictment. The death of deceased was caused by an unlawful act or omission The act causing the death of that person was accompanied by malice aforethought That it is the accused who caused the death of that person. The prosecution adduced evidence of one witness, PW1, Nakakande Florence, a wife to the deceased who testified that she was told that her husband was dead by his son Mpanga Frank.  She stated that she went to see the deceased person’s body which was found near the accused person’s home. She further testified that she doesn’t know why and how the accused person was arrested but one Dan told police that the accused person called the deceased. She stated that when the husband left home, he was going to meet one Juma at his brother in-laws place called Lubega Muhammed. Prosecution also adduced evidence of a post mortem report, PX1 which showed that the deceased, Kizza Joseph died from obstruction of airway from external pressure to neck manually. It is trite law that prior to placing an Accused person to his/her Defence, the Prosecution is required to have established a prima facie case against such accused person. It is now well-established law that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence would convict the accused person, if no evidence or explanation was set up by the Defence. (See Rananlal .T. Bhatt vs. R [1957] E.A 332). In the instant case, there is no direct, circumstantial or other cogent evidence pointing irresistibly to or showing that it is the accused that murdered Kizza Joseph. Suffice it to mention that the evidence as narrated by the single witness, PW1 is largely hearsay and violates the provisions of S. 59 of the Evidence Act which requires that oral evidence must, in all cases whatever, be direct. Such evidence cannot stand on its own to sustain a conviction.   I have thus formed the opinion that if the accused chose to remain silent, this court would not have evidence sufficient to hold her responsible for murder. On that note I do not find prosecution evidence credible enough to warrant putting the accused person to her defence. I therefore find that the accused person has no case to answer. I accordingly record a finding of not guilty and acquit the accused person, Nakabuye Yudaya on the offence of murder under S. 73 (1) of the Trial on Indictment Act. …………………………………………………. Emmanuel Baguma Judge. 27/03/19.

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