THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
HCT – 01 – CR – SC – 31 – 2018
1. GAFWA GEORGE
2. TUHAIRWE ROBERT ...........................................................................ACCUSED
3. MUGABE IVAN
BEFORE: HIS LORDSHIP HON. MR. WILSON MASALU MUSENE
The accused were indicted with the offence of Murder contrary to Section 188 and 189 of the Penal Code Act. It is alleged that the accused on the 4th day of April 2017 in Hakibale Sub-County in Kabarole District with malice aforethought assaulted Balinda Stephen using sticks, spears and a panga thus causing his death.
A2 Tuhairwe Robert pleaded guilty and he was convicted on his own plea of guilty. Trial proceeded against Gafwa George and Mugabe Ivan.
The prosecution produced 4 witnesses to prove its case against the two accused persons. The accused produced two witnesses to help in his defence.
Resident Senior State Attorney Wasswa Adam represented the State and Mr. Ahabwe James represented the accused on State Brief.
The Post-mortem Report and PF24 in respect of the two accused were admitted in evidence as PE1, PE2, and PE3 under Section 66 of the Trial on Indictments Act.
- Death of a human being – Balinda Stephen
- Death was unlawfully caused
- Death was out of malice aforethought
- Identification of the accused persons as having participated
The prosecution witnesses all confirmed that Balinda Stephen died. This evidence was supported by a post-mortem report. The same prosecution witnesses confirmed that the deceased was cut on the head and speared on the back, meaning that his death was unlawfully caused. The body parts attacked were also very fragile and sensitive parts meaning that the assailant had malice aforethought as they committed the offence. The deceased was assaulted with spears, sticks, and pangas. A2 also admitted as having killed the deceased.
In regard to the participation of the accused, PW1, Bachwa Wilson, he testified that he met A1, Gfwa and Tuhairwe Robert on the way and Clovis. He added that when he reached the crime scene, Balinda Stephen (the deceased) had a broken arm, was pierced with a spear and was bleeding. The deceased also told him that Gafwa George, Tuhairwe Robert and Mugabe Ivan while armed with a spear and panga removed him from his house and assaulted him. That Tuhairwe first speared him and others Gafwa and Mugabe Ivan as well hit him. That the deceased had not yet died but was in critical condition with the right hand about to fall off. The deceased had a deep cut wound on the head, he later died after 3 months.
PW2, Katusabe Dorothy told Court that she found the deceased being beaten by Tuhairwe Robert, Goerge Gafwa and Mugabe Ivan. That A3 hit the deceased on the head with a stick and A1 had a panga. That the deceased was speared in the back and when PW2 asked A3 why they were killing the deceased, he also assaulted her on the arm. The Evidence of PW2 however had major contradictions, on cross examination she stated that A3 had a spear earlier she had said that he had a panga. She also contradicted PW1’s stated and said that the deceased died after one month. She then went on to tell Court that she did not see Balinda being speared but saw the accused cutting the deceased on the head while he lay on the road. That she was the one who took the deceased to Buhinga Hospital and she concluded that he gained consciousness but died later.
PW3, Maureen Mbabazi, wife to the deceased told Court that the accused came to her house and speared the deceased while on the bed alleging that he had bewitched A2’s son that had died. That she managed to escape and leave the deceased with the accused persons. That even before the of the deceased, he kept saying that the accused are the ones that wanted to kill him.
PW4, Ocaya Raphael, the Investigating Officer told Court that he recorded a statement from Balinda before he died.
The accused persons denied committing the offence. They said it was Tuhairwe Robert who killed the deceased. A1, Gafwa stated that he was not around when the deceased was assaulted and he found him being taken to Hospital.
Mugabe Ivan also denied being present, that is raised a defence of alibi.
I have carefully considered all the evidence as adduced and the accused raised the defence of alibi and it was therefore the prosecution’s duty to place the accused at the scene of crime. The evidence of the prosecution had contradictions as pointed out earlier and the offence was committed in the night and PW3 stated that the accused had a torch and also that there was light from the solar light bulbs. The evidence of PW3 was inconsistent as to what exactly happened. She at one point stated that the deceased was attacked in the bed and another point stated that he was dragged off the bed and taken to the banana plantation where he was assailed from. She also said that she ably identified the assailants because there was light and only to later say she identified them by their voices. In the case of Uganda versus Ngirabakuza 188/189 HCB, it was stated that;
“Only grave inconsistencies result in the evidence of a witness being rejected but minor inconsistencies will have no effect at all.”
This Court finds and holds that the inconsistencies in the key prosecution witness PW3’s evidence who was the wife of the deceased were grave inconsistencies and cannot be relied upon to convict A1, Gafwa George ad A3, Mugabe Ivan.
The two accused maintained that they did not participate in the murder of Balinda Stephen and that it was A2 who pleaded guilty that did so. It is trite law that one can only convict on the strength of the prosecution case and not on the weakness of the accussed’s case. In the instant case I find that the prosecution did not prove its case beyond reasonable doubt. I accordingly agree with the lady assessor, that the two accused are not guilty. They are hereby acquitted and set free unless being lawful under other charges. I so order.
WILSON MASALU MUSENE