THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT ARUA
CASE NO: HCT-02-CR-SC-005 OF 2004
A2. YAMU FABIANO ANECHO }
A3. OMIRAMBE ALFRED MOSES }
The brief facts of this case on which the prosecution relies are that the fateful night when the deceased and her daughter PW2 Beatrice Ngamita had retired from the night in her house the accused persons came to her home and lured her out of her house on the pretext she was to accompany them to attend night prayers which were part of certain funeral rites. The deceased complied and came out of her house and accompanied the accused persons. Because the deceased’s daughter PW2 Beatrice Ngamita became suspicious of the motives of the accused, she decided to follow them at a distance. When they had not gone very far, the accused started brutally assaulting the deceased with sticks and clubs. When PW2 Beatrice Ngamita protested to the accused of the treatment of her mother, they turned on her and assaulted her. At this PW2 Beatrice Ngamita went to PW3 Saverio Okumu and informed him of what was happening to her mother. PW3 Saverio Okumu went to the scene and when he questioned propriety of what the accused were doing to the deceased, the accused assaulted him as well forcing him to flee back to his house. PW2 Beatrice Ngamita witnessed her mother being killed. As for PW3 Saverio Okumu, when he went back to the scene the deceased was already dead so he ordered the accused to remove the body of the deceased from this area and take it to their own village and the accused dragged the body and left it at the home of A1. PW2 Beatrice Ngamita informed her uncle who in turn informed the authorities in consequence of which the accused persons were arrested.
All the accused persons who made unsworn statements denied the offence. A1 set up the defence of alibi while A1, A3 and A4 denied the offence outright.
When an accused persons pleads not guilty to the offence with which he is charged, he thereby puts in issue each and every essential ingredient of the offence. The accused persons in the instant case by pleading not guilty are thereby putting in issue each and every essential ingredient of murder with which they are charged. Having done so it is the duty of the prosecution to prove the guilt of the accused. This burden is all along the trial on the prosecution and never shifts onto the accused to prove their innocence. To secure a verdict of guilty the prosecution will have to discharge this burden of proof beyond reasonable doubt. If from the evidence a doubt arises as to the guilt of the accused, such doubt must be resolved in favour of the accused leading to his committal. See Woolmington Vs DPP  AC 462.
It is also trite that the accused is to be convicted on the strength of the prosecution case but not on the weakness of the case for defence. See Israel Epuku s/o Achietu Vs R  1 EACA 166.
The essential ingredients of the offence of murder which the prosecution has the duty to prove beyond reasonable doubt are the following:-
(ii) That the death of the deceased was unlawfully caused.
(iii) That the accused participated in causing in causing the said death.
According to PW2 Beatrice Ngamita she was present when the deceased was killed. She saw the body of the deceased at the scene and attended the deceased’s burial. PW3 Saverio Okumu came to the scene of crime when the assailants were assaulting the deceased. When they assaulted him because he had wanted to know why they were assaulting the deceased he fled back to his house when he later returned to the scene he found the deceased had died. The prosecution additionally relied on the evidence of PW4 Tanislau Ondongo and PW6 No. 376 D/Sgt Anyoli Geoffrey who both saw the body of the deceased in Vira village between two houses at the home of A1. the above overwhelming evidence of witnesses who saw the body of the deceased was in no way disputed by the accused. On the contrary Mr Oyarmoi, learned counsel for the accused conceded that the prosecution has proved the fact of the death of the deceased beyond reasonable doubt. From the above uncontested prosecution evidence of the fact of the death of the deceased, I find that the prosecution has proved the first ingredient of the offence of murder beyond reasonable doubt.
With regard to the second ingredient that the death of the deceased was unlawfully caused, there is presumption in law that all homicides are unlawful unless they are justifiable at law or they occur accidentally. See Busambizi s/o Wesonga Vs R  1 EACA 65. See also Article 22 of the Constitution of the Republic of Uganda which guarantees the right to life in that nobody is to be deprived of life unless it is in execution of a court order of a court of competent jurisdiction after the due process of the law.
Whether the death of a deceased person is unlawful or not can be arrived at from the circumstances of the offence. In the instant case the deceased who had according to her daughter gone to bed was lured out of her bed on the pretext that she was to accompany her assailants to prayers at last funeral rites. She unsuspectingly accompanied her assailants who set upon her with sticks and clubs and beat her to death. These circumstances were in no way accidental but they were deliberate, criminal and premeditated. They were not justifiable circumstances at law as the deceased was subjected to no due process of law but was instead arbitrarily and extrajudicially killed. I find that from the circumstances under which the deceased met her death, her death was unlawfully caused. The prosecution has therefore proved the second ingredient of murder beyond reasonable doubt.
The next ingredient to consider is whether the death of the deceased was caused with malice aforethought what amounts to malice aforethought is to be found in section 191 of the Penal Code Act where it is provided as follows:-
(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 though such knowledge is accompanied by indifference whether death is caused or by a wish that it may not be caused”
Circumstances in the commission of the offence which are used for gathering the existence of malice aforethought include the weapon used for causing the death of the deceased, the nature of injuries inflicted and the parts of the body on which the injuries are inflicted. If the weapon used for causing the death is a deadly weapon if the injuries that led to the death are severe and life threatening or fatal and inflicted on very vital or vulnerable parts of the body, malice aforethought will be easily deemed to exist. In the cases of Uganda Vs Turwomwe  HCB 182 and R Vs Tubere  12 EACA 63 where fatal injuries inflicted with deadly weapons on very vital or vulnerable parts of the body, malice aforethought was readily deemed to have existed.
In the instant case according to the evidence of PW2 Beatrice Ngamita and PW3 Saverio Okumu the assailants of the deceased repeatedly assaulted the deceased over a long period of time with sticks and clubs. Two witnesses gave evidence, that some of these sticks were big while other were small. PW6 No. 376 D/Sgt Anyoli Geoffrey who recovered these sticks gave a similar description of them. When PW7 No.26027 D/C Acidri John tendered the 4 sticks recovered from the scene which were marked P2, P3, P4 and P5 one of them was decidedly a club. Section 286 (3) of the Penal Code Act defines deadly weapons to include any instrument which when used for offensive purposes is likely to cause death. In this context the club and the sticks the assailants used to repeatedly assault the deceased were deadly weapons. In his post mortem report comprised in Pf 48B which is exhibit P2 on the court record PW1 Dr Asiki Gershom found on the body of the deceased a crush injury on the left supra orbital region measuring 12cm x 8 cm with brain tissue oozing through the defect, abrasion and bruises on the scapular region. Internally he observed the fracture of the frontal bone with injury to the underlying brain tissue, destruction of the left eyeball and the fracture of the upper € right humerus – PW1 Dr Asiki Gershom concluded that death was due to the open head injury with brain laceration resulting in cardio respiratory arrest.
From the finding of PW1 Dr Asiki Gershom the injuries inflicted on the deceased were very fatal. The same injuries were affecting very vital parts of the body in that they were inflicted on the head region and particularly on the brain, which is the centre of all activity in the body. From the above circumstances, I find that the prosecution has proved beyond reasonable doubt the assailants who caused the death of the deceased did so with malice aforethought.
This now leaves us with the last ingredient of the offence of murder which is whether it is the accused persons participated in causing the unlawful death of the deceased with malice aforethought. The first piece of evidence that incriminates the accused person in the commission of the offence is the evidence of PW2 Beatrice Ngamita which is to the effect that the fateful night when she and the deceased had retired in their house and had slept, the accused came to their home, and called out to the deceased asking her to accompany them to a home where last funeral rites prayers were being held. The deceased at first resisted but the accused persons persuaded her and she went out of the house and accompanied the accused. PW2 Beatrice Ngamita gave evidence that because she became suspicious she decided to follow the accused and the deceased. When they had gone 150 metres away from the house, the accused persons started assaulting the deceased with all sizes of sticks. On reaching the scene PW2 Beatrice Ngamita was also assaulted by the accused so she fled back home and informed one Underu with whom she returned to the scene. The deceased was still alive but the accused were still assaulting her. It was PW2 Beatrice Ngamita’s evidence further that when Underu asked the assailants why they were assaulting the deceased, the accused persons replied that they had to kill the deceased because they had been paid shs.15,000/= by Opio to kill her when she realized that the deceased was dead she ran to her uncle PW4 Tanslau Odongo and informed him of the incident. It was also the evidence of this witness that she identified the accused persons as the assailants of the deceased because that night there was bright moonlight.
The second piece of eyewitness evidence that links the accused the commission of this offence is that of PW3 Saverio Okumu Underu. His evidence is that after returning from a prayer meeting at midnight he went to sleep only to be awakened by PW2 Beatrice Ngamita and to be told that the accused persons had called the deceased from her house and were then assaulting her in the valley. He proceeded to the scene which was about 100 metres away from his home and found A1, A2, A3 and A4 assaulting the deceased with sticks of various sizes. He questioned them why they were beating her they answered they were beating her because she had set the house of Opio Maskini on fire. When he tried to restrain them, they assaulted him so he ran back home. PW3 Saverio Okumu alias Underu further testified that when she returned to the scene the deceased was dead. He asked the accused to remove the body since the land in which they had killed the deceased did not belong to them. A2, A3 and A4 were then arrested at a drinking place at Ameza in Konga village, by the LCI and LCII Chairmen and when questioned they stated that they had killed the deceased because she had set the house of A1 Opio on fire. He also testified that that night there was moonlight.
While in law of practice there is no need of corroboration of the evidence of identification by a multiple number of identifying witnesses there is still need to critically examine the conditions under which such identification was made. This is because like in the case of a sole identifying witness who may be honest but mistaken, it is possible for a number of hones witnesses but on telling the truth to be all mistaken. See Abdallah Nabulere & Others Vs Uganda  HCB 77.
The safeguards laid down in Abdallah Wendo & Another Vs R  20 EACA 166 and Roria Vs R  EA 583 for ensuring that an identification made in difficult condition was positive without the possibility of an error or mistake are applied to identification evidence of a multiplicity of witnesses of such identification was made under difficult conditions. These safeguards are:-
(b) The condition of lighting.
(c) The distance between the accused and the witness at the time of identification.
(d) The length of time the accused was exposed to the witness.
Mr Aulllian the learned Resident State Attorney submitted that the accused had common intention and therefore are caught by the doctrine of common intention. The relating to the doctrine of common intention is to be found in Section of the Penal Code Act which provides as follows:-
Immaterial who strikes the fatal blow provided that the fatal injury is inflicted when the parties are prosecuting common intention. See Ssebaganda s/o Miruho Vs R  HCB 7.
In the instant case according to PW2 Beatrice Ngamita the accused persons lured the deceased from her house in the dead of nigh. When she came out they took her some distance away from her house and all the four accused persons brutally assaulted her with sticks and clubs of various sizes over a long period of time. PW3 Saverio Okumu gave identical evidence in this respect. As a result of this assault the deceased died.
The law on inconsistencies in the prosecution evidence that if these are major and go to the root of the case, they must be resolved in favour of the accused. If they are minor and are the result of loss of memory and lapse of time, they may be ignored unless they are shown to be deliberate lies to mislead the court. See Alfred Tajar Vs Uganda EACA Cr. Appeal No. 167/1969. In the instant case I don’t find the above instances of inconsistencies major and to go to the root of this case, which is that the accused person murdered the deceased’s. Whether the deceased died naked or with her clothes on is not a major inconsistence, which should be resolved in favour of the accused.
In the result, the prosecution having proved each and every essential ingredient of the offence of murder beyond reasonable doubt, in agreement with the unanimous opinion of the assessors find the accused persons Opio Cypriano Maskini, Yamu Fabiano Anecho, Omirambe Alfred Moses and Oryema Joseph Othobar guilty of the murder of Biryema contrary to sections 188 and 189 of the Penal Code Act and convict them accordingly.
Right of Appeal explained.
Opio Cypriano Maskini, Yamu Fabiano Anecho, Omirambe Alfred Moses and Oryema Joseph Othobar there is only one punishment for the offence of murder of which you have been convicted and that is the death penalty. You shall suffer death. This sentence shall be carried out in the manner prescribed by law.
Mr Oyarmoi for the accused.
Mr Boyi Court Clerk.
Mr Okumu – Alur/English Interpreter.