THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
CRIMINAL SESSION CASE No.0066 OF 2005; HELD AT KYENJOJO
UGANDA ……………………………………………………………………………… PROSECUTOR
MUHWEZI OBEDI ………………………………………………………………………… ACCUSED
BEFORE: - THE HONOURABLE MR. JUSTICE CHIGAMOY OWINY – DOLLO.
Muhwezi Obedi, herein after referred to as the accused, has been indicted for the offence of murder in contravention of sections 188 and 189 of the Penal Code Act. It is alleged in the particulars of the offence that on the 25th day of June 2004, at Kibale Trading Centre, Kyarusozi Sub - County, in Kyenjojo District, the accused murdered one Kisembo Atwooki. After his response that he had understood the statement of the offence, and particulars of the said indictment, which had been read out and explained to him by Court, the accused denied the charge. Court therefore entered a plea of “Not Guilty” for him; and proceeded with this trial.
Murder is an offence which is constituted by four ingredients. These are:-
- Death of a human being.
- Unlawful causation of that death.
- The said unlawful causation having been done with malice aforethought.
- The participation of the accused in causing the said death.
Court can only find the accused guilty as charged, and convict him, when the prosecution has discharged the burden that lies on it to strictly prove, beyond reasonable doubt, each of the aforesaid ingredients. Murder being a capital offence, a high premium that measures to the gravity of the offence is placed on the standard of proof. This has been the holding in Andrea Obonyo & Others vs. R.  E.A. 542; at p. 550; which followed the decision of DENNING, L.J. (as he then was), in Bater v. Bater  2 All E.R. 458, and cited with approval in Hornal v. Neuberger Products Ltd.  3 All E.R. 970; and subsequently, in our jurisdiction, in Henry H. Ilanga v. M. Manyoka  E.A. 705 (C.A.).
At the commencement of the trial, I conducted a preliminary inquiry pursuant to the provisions of section 66 of the Trial on Indictments Act; and the following facts were agreed upon; namely:
- Kisembo Atwooki died on the 25th June 2004; and Dr Musa Waiswa Kasadha carried out a post mortem examination on the body, on the 26th June 2004. His findings were that the deceased was of the apparent age of 52 years and well nourished; and that there was a deep wound over the right side of the stomach with exposed colon (large intestine), and a superficial wound over the left lower leg; and that death was caused by haemorrhagic shock from intero - external bleeding from mesenteric vessels. The post mortem report was exhibited as CE1.
- Medical examination carried out on the accused, by a clinical officer, revealed that he was 21 years of age, and of apparent normal state of mind. The report was exhibited as CE2.
Three witnesses then gave their testimonies in Court, for the fulfilment of the prosecution’s bid to discharge the above stated burden of proof. These witnesses were:
- Mukurizehe Lucia – PW1; formerly fellow employee with the accused.
- Nyamutale Robert – (PW2); Chairman LC1, Kibale.
- Tukagirimu – (PW3); Secretary for Mobilisation L.C.1, Kibale.
Proof that Kisembo Atwooki is dead is contained in the direct evidence of PW1, PW2, and PW3, who all saw the dead body; and this was corroborated by the post mortem examination report which was admitted in evidence. This is sufficient proof as was laid down in Kimweri vs. Republic  E.A. 452. This proof of the ingredient of death, the defence did concede, has been established beyond reasonable doubt. This was also the case with the ingredient of causation of the death. The law presumes all homicide to be unlawful. This is however rebuttable by the accused who may adduce evidence showing that the commission of the homicide is covered by any of the excusable circumstances.
These excusable circumstances could be that: either the act was accidental, or done in defence of person or property, or was provoked, or was committed in accordance with a lawful order; (See R. vs. Gusambizi s/o Wesonga (1948) 15 E.A.C.A. 65; Uganda vs. Bosco Okello alias Anyanya, H.C. Crim. Sess. Case No. 143 of 1991, [1992 - 1993] H.C.B. 68; Uganda vs. Francis Gayira & Anor. H.C. Crim. Sess. Case No. 470 of 1995, [1994 - 1995] H.C.B. 16). Where an accused puts up evidence in rebuttal, the standard of proof for such evidence is, as was pointed out in Festo Shirabu s/o Musungu vs. R (22) E.A.C.A. 454, merely on the balance of probabilities.
The medical report was clear that the cause of death was due to the extensive bleeding that resulted from the deep cut wound the deceased had sustained. It was manifest that the wound was not due to some accident; but was the consequence of the work of a human being. No lawful causation could have occasioned the type of wound described in the medical report. As was properly admitted by the defence, the prosecution proved to this Court, beyond any reasonable doubt, that the cause of the death herein was unlawful; and thereby the requirement for the establishment of the ingredient of causation of death, was satisfied.
Malice aforethought as an ingredient in the commission of murder is defined in section 191 of the Penal Code Act, as follows:
“191. Malice aforethought.
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 that person is the person 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.”
In the Privy Council case of R. v. Sharmal Singh s/o Pritam Singh; & Sharmal Singh s/o Pritam Singh v. R.  E.A. 13, the principle laid down in D.P.P. v. Smith  A.C. 290, namely that the knowledge required of the perpetrator, so as to establish the existence malice aforethought in his or her action, is one which a reasonable person would have of the consequences of his or her act or omission. The Court reiterated at p. 16, the provision in the Penal Code that malice aforethought is established where, inter alia, there is:
‘knowledge that the act or omission causing the death will probably cause the death of or grievous harm to another person.”
Therefore, proof of malice aforethought is mostly established from the conduct of the perpetrator, by inference arrived at from the facts or circumstances surrounding the homicide in issue. Only when the perpetrator of the homicide has expressly stated the intention to cause death or do grievous harm, will evidence of malice aforethought be direct. Therefore, the Court must examine the entire circumstance under which the injury was inflicted, and draw its own conclusion either that there exist any excusable factors, or rather that the perpetrator had knowledge that the injury he or she was inflicting could cause grievous harm or death; and then reach a conclusion that malice aforethought did exist at the time.
The case of R. vs. Tubere s/o Ochen (1945) 12 E.A.C.A. 63, advised against trying to lay down a hard and fast rule on how to reach the conclusion that malice aforethought existed; however, it pointed out some factors from which Court can draw such inference, namely: the weapon used, the manner in which it was used, and the part of the body targeted. The Court observed that:
“it will be obvious that ordinarily an inference of malice will flow more readily from the use of say, a spear or knife than from the use of a stick; that is not to say that the Court take a lenient view where a stick is used. Every case has of course to be judged on its own facts.”
Other cases, such as Uganda vs. Fabian Senzah  H.C.B. 136; Lutwama & Others vs.Uganda, S.C. Crim. Appeal No. 38 of 1989; Uganda vs. John Ochieng [1992 - 1993] H.C.B. 80, Uganda vs Turwomwe  H.C.B.16, have followed the earlier ones, and recast this principle and restated them as follows: whether or not the weapon used was lethal, vulnerable parts of the victim were targeted, injuries were intended to cause grave damage, and the conduct of the accused before, during, and after the attack, points to guilt. Where there is evidence which opens up the possibility of a co-existing circumstance of the death, as was the case in Siduwa Were v. Uganda  E.A. 596, in which medical evidence had shown that the circumstance was equally consistent with accident, or manslaughter, as it was with murder, then malice aforethought would not have been proved.
The Court followed the decision in Sharmpal Singh (supra) that the onus of proof of malice aforethought was high. In the instant case before me, the evidence on record is that the injury which directly and almost immediately led to the death of the victim –the cut wounds that left the victim’s bowel open, and the intestines dangling out – could not have been other than that the perpetrator was filled with the venom of malice aforethought in perpetrating that deed. The defence saw no reason to contest proof of malice in this case; and graciously conceded it.
To prove that it was the accused who had inflicted the fatal injuries on the deceased Kisembo Atwooki, the prosecution relied on the admission by the accused, other circumstantial evidence, and then the dying declaration of the deceased which was admitted in evidence in accordance with the provisions of section 30 of the Evidence Act (Cap 6 Laws of Uganda Revised Edition 2000); the relevant part of which states as follows:
“30. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant.
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be produced without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases-
(a) when the statement is made by a person as to the cause of his or her death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person’s death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his or her death comes into question; …”
The principle above is to the effect that any statement by someone who later dies, regarding the transaction that eventually results in that death is admissible. However, as has been stated in numerous decided cases, it is not safe to act upon such evidence without corroboration. In Okethi Okale and Others v. Republic  E.A. 555, at pages 558 to 559, the Court followed the decision of the Court in Jasunga Akumu v. R. (1954) 21 E.A.C.A.; pointing out that since in that case, the circumstance under which the statement had been made was not so done in immediate expectation of death, the Court had to approach that statement:
“…with that circumspection that the law enjoins with regard to dying declarations.”
In the case of Tindigwihura vs. Uganda, S.C. Crim. Appeal No. 9 of 1987, and this was cited with approval in the case of Kalisti Sebugwao vs. Uganda, S.C. Crim. Appeal No. 7 of 1987, the Court said:
“… evidence of a dying declaration must be received with caution, because the test of cross examination may be wholly wanting; and the particulars of violence may have occurred under circumstances of confusion and surprise; the deceased may have omitted important particulars, for not having his attention called to them. Particular caution must be exercised when an attack takes place in darkness, when an identification of an assailant is usually more difficult than in day light. …
It is not a rule of law, that in order to support a conviction there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject to cross examination; unless there is satisfactory corroboration. See Okethi Okale and Others v. Republic,  E.A. 555; and Tomasi Omukono and Another v. Uganda, CAU Judgments Part I page 105.”
The Supreme Court in Uganda v. George Wilson Simbwa, S.C. Crim. Appeal No. 37 of 1995, followed the decision above, and explained at length as follows:
“The general principle on which the evidence of a dying declaration is admitted is that they are declarations made in extremity when the party is at the point of death, and when every hope of this world has gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful which is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered by a Court of justice.
The result of the principle is that there must be settled hopelessness and expectation of imminent death i.e. the declarant must have abandoned all hope of living. It must be shown for the prosecution that the deceased, when he made the statement was under the impression that death was impending not merely that he had received an injury from which death must ensue, but that he then believed that he was at the point of death (See R. v. Woodcock (1789) 1 Leah 500; R. v. Penny (1909) 2 K.B. 697 at p. 701; Archibold’s Criminal Pleading, Evidence and Practice; 13th Ed. Paragraph 1294).
…The deceased died within an hour after he had been stabbed with a spear in the ribs. When he named the appellant as his assailant he did so in extremity when he was at the point of death, and when every hope of this world had gone. On his (the deceased’s) part, every motive to falsehood was silenced and his mind induced by the most powerful consideration to speak the truth.
In short, the deceased’s statement that it was the appellant who pierced him was a dying declaration which fulfils the requirement of the provisions of section 30(a) of the Evidence Act and decided cases. In the circumstances the corroboration of the dying declaration was not required.
Much as in the circumstances of the case, the corroboration of the dying declaration was not required, the dying declaration of the deceased was in fact, corroborated. Such corroboration was provided by the evidence of PW1 who knew the appellant and was able to recognise him and his clothes by the torch light.
Secondly, the medical evidence was consistent with the deceased’s dying declaration … amounted to circumstantial evidence which corroborated PW1’s evidence as to the manner in which the deceased met his death.
The doctor’s general observation was that a sharp instrument was used to cut through the spleen. This was consistent with PW1’s evidence that the deceased was pierced with a spear. Another piece of circumstantial evidence which provided corroboration to PW1’s evidence was the fact that the respondent disappeared from his home and village soon after the incident in which the deceased was killed.”
In the instant case, PW1 testified that she had heard the accused advising her husband, one Ponsiano Mbabazi – alias Kagame, and Kadogo, with whom she was in a party, not to go to Kibale as he, the accused, had committed a crime there, by stabbing Kisembo. She testified further that the accused who sat at an arm’s length from her – separated from her by two people only – had a knife which was blood stained, and some blood had splashed on him. She later went to Kibale Trading Centre and found the deceased had been stabbed on the stomach below the navel and the intestine was out. He was crying in pain and saying that:
“It is Obedi who has stabbed me; it is Obedi who has stabbed me.”
PW3, whom the deceased, while in distress, had specifically called for, corroborated the evidence of PW1 regarding the gravity of the condition the deceased was in that night. He too was told by the deceased that he had been stabbed with a knife by his workmate Obedi Muhwezi, over a woman called Mborushimana Ferridiana. All these prosecution witnesses testified to the severity of the injuries the deceased had suffered; and that he died that very night soon after reaching the health centre to which he was rushed. Therefore all the utterances by the deceased regarding the identity of his assailant, and the reason for the assault were dying declarations as they were made under condition of extremity and in expectation of death. In accordance with the authorities above then there would be no need for corroboration before acting on them.
There is no direct evidence as to the time the incident took place. That notwithstanding, it is reasonable to infer from the evidence on record that it took place in the night. The accused himself is said to have reported the incident to PW1 and her group around midnight. PW2 and PW3, both L.C. officials of the area, testified that they got word of this incident around 11.00 o’clock in the night; when they had already retired to bed. It is therefore reasonable to reach the conclusion that the incident had taken place not long before that as response to incidents of such gravity which takes place in a residential area is usually swift. This brings in the problem of whether or not the conditions then obtaining were conducive for the deceased to identify his assailant. The best inculpatory evidence of identification here would have been that provided by the deceased; as was held in Badru Mwindu vs Uganda; C.A. Crim. Appeal No. 1 of 1997.
Unfortunately he was not available to testify in Court. I will therefore proceed on the inference that the incident took place at night and therefore I need to approach that evidence of identification with particular caution, before satisfying myself that the accused was correctly identified by the deceased. This need for the exercise of caution, which is now trite law, I warned the assessors about. There is a huge corpus of decisions on this; leading amongst which are: Abdulla bin Wendo & Another v. R (1953) 20 E.AC.A. 166, Roria vs. Republic  E.A. 583, Nabulere vs. Uganda – Crim. Appeal No. 9 of 1978,  H.C.B. 77; and Bogere Moses & Anor. vs. Uganda – S.C. Crim. Appeal No. 1 of 1997. In the Nabulere case (supra) the Court stressed, in a passage which I quote here in extenso, that:
“Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence disputes, the Judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one, and that even a number of such witnesses can all be mistaken.
The Judge should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good the danger of mistaken identity is reduced but the poorer the quality the greater the danger…..
When the quality is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused before, a Court can safely convict even though there is no other evidence to support the identification evidence, provided the Court adequately warns itself of the special need for caution.”
The cases of Yowana Sserunkuma vs Uganda, S.C. Crim. Appeal No. 8 of 1989, George William Kalyesubula vs. Uganda – S.C. Crim. Appeal No. 16 of 1997, Moses Kasana vs. Uganda – C.A. Crim. Appeal No. 12 of 1981 - [1992-93] H.C.B. 47; all upheld the need, as laid down in the earlier authorities, for Court to exercise caution, and test with the greatest care evidence of identification; and especially so, where the identification is made under conditions not favouring correct identification; such as at night. All these authorities have consistently re-echoed and advised that in such circumstances, Court should look for other evidence, be it direct or circumstantial, pointing to the guilt of the accused; hence supporting the correctness of identification, and thus enabling Court to safely conclude that the evidence of identification was correct; and free from any error or mistaken identity.
The accused, for his part set up the defence of an alibi, stating that on the material night he is accused of fatally stabbing Kisembo, he was at the camp where he and other workers lived. He claimed that he never left the camp. He further claimed that he did not know any of the people who had testified, or whose names featured in Court; maintaining that he was a new person in the area, and never used to go anywhere to drink. In view of the adverse prosecution evidence, I am unable to accept the defence put up by the accused. It is all a pack of lies. The dying declaration made in condition of extremity was explicit in naming the accused as culpable for this vile and wanton deed; and that it was over a woman. There is plenty of other evidence which point to the correctness of identification of the accused.
The confession made by the accused to the husband of PW1, and the stained knife which the husband of PW1 disarmed him of, amounted to that other evidence in support of the dying declaration. The accused had the motive to assault the deceased who, as was corroborated by PW1, was his rival over the attention of a woman called Ferridiana; and further, the deceased was found near the residence of that woman gravely wounded. The conduct of the accused, while reporting his deed to PW1 and group, and when the arresting team led by PW3 reached his dwelling place, was further evidence in support of the dying declaration. PW1 and PW3 testified that when they reached the workers’ camp where the accused resided, he attempted to flee through a window upon learning that he was wanted by some people; but he was apprehended, and looked dazed.
Had the evidence pointing to the participation of the accused been exclusively circumstantial, I would have had to resolve whether or not the inculpatory facts of the case were incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt; and further, whether there were no co-existing circumstances that would negative the inference of guilt. However, owing to the dying declaration herein which at law requires no corroboration, the circumstantial evidence manifested by the conduct of the accused is an exception to the rule governing the treatment of circumstantial evidence; as laid down above. The authority of Barland Singh v. Reginam (1954) 21 E.A.C.A. 209; is clear on the matter. Here, the Court of Appeal held at p. 211, that:
“…circumstantial evidence, although not wholly inconsistent with innocence, may be of great value as corroboration of other evidence. It is only when it stands alone that it must be inconsistent with any other hypothesis other than guilt.”
For the reasons advanced herein above I am satisfied; and fully concur with the opinion given by the gentlemen assessors that the prosecution has proved, beyond all reasonable doubt, each of the ingredients of the offence of murder of Kisembo Atwooki; for which the accused has been indicted and stood trial. I therefore convict him of that charge.
Alfonse Chigamoy Owiny – Dollo
12 – 06 – 2009