THE REPUBLIC OF UGANDA
IN TI-TB HIGH COURT OF UGANDA AT RUKUNGIRI
Al. BANDEBESA JOHN)
A2. NSUBUGA MOSES)
A3. TURYAMUSHANGAYO ROBERT)
A4. MUGYENYI ROBERT ) …………………………………………………….....ACCUSED
BEFORE: THE HON. MR. JUSTICE P. K. MUGAMBA
Initially accused Turyamushangayo Robert (A.3) was indicted with Bandebesa John (A.1) and Nsubuga Moses (A.2) for murder contrary to sections 188 and 189 of the Penal Code Act. At the outset of the trial both A.1 and A.2 were willing to plead to a lesser charge of manslaughter. The State was agreeable. Consequently upon conviction and sentence the two ceased to be party to the proceedings. A.3 however maintained his plea of not guilty even to the lesser charge. He was therefore tried on the original charge of murder.
The prosecution called five witnesses to prove its case. PW1 was D/Cpl. Byakagaba Joseph, PW2 was Kemirembe Constance, PW3 was Tushemereirwe Natalia, PW4 was Mpwerize John and PW5 was Baguma Joseph. Accused called no witnesses on his behalf but he made a statement on oath.
Briefly the prosecution case is that on 22nd April 2001 some cattle had been cut and injured. The deceased was suspected as the person who had injured the animals. The deceased was summoned to the farm where the animals belonged and there he was subjected to brutal beating by several people wielding sticks. These people included the accused. Later in the day the deceased succumbed to death as a result of the assault.
Accused was one of the suspects arrested in connection with the assault and eventual death of the deceased. He has been charged with murder.
In his defence accused agreed he visited the farm but said that when he arrived there he found the deceased had already been assaulted by people he never saw. He was definite the deceased’s condition at the time was not bad.
The onus is on the prosecution to prove the case against an accused person beyond reasonable doubt. See Woolmington vs DPP  A. C. 462. If any doubt or gap appears in the case of the prosecution that doubt or gap ought to be resolved in favour of the accused. It is not the duty of the accused person to prove his innocence.
In the instant case accused is indicted for murder and the prosecution ought to prove the following ingredients beyond reasonable doubt:
(ii) that the killing of the deceased was unlawful;
(iii) that the killing of the deceased was with malice aforethought; and
(iv) that accused was responsible.
It is the position of the law that every homicide is unlawful save where it results from an
accident or is excusable by law. See Gusambizi s/o Wesonga vs R (1948) 15 EACA 63.
The presumption was never rebutted and as such I find that the killing was unlawful.
This ingredient has been proved beyond reasonable doubt.
Finally the prosecution must prove that the accused was responsible for the crime, In his defence accused conceded he visited the scene. However it was his evidence that when he arrived the deceased was no longer being assaulted. The prosecution however adduced contrary evidence. PW2 stated that she saw accused amongst others assaulting the deceased with sticks. PW3 testified that he saw accused assault the deceased near the neck and saying that the deceased would no longer be able to throw stones. The Chairman L. C. 1, who was PW4, testified also that he had seen accused assault the deceased. It was his evidence that accused and others had declined his suggestion that they cease assaulting deceased and refer the matter to Police. From the evidence above I find that accused was one of the people who assaulted the deceased on the occasion. I find his version as fabricated to clear him of guilt. Section 10 of the Penal Code Act provides:
The assessors in their joint opinion advised me to acquit accused. For the reasons I have given in the case of this judgment I am not persuaded by that opinion. I find accused guilty of manslaughter and convict him accordingly.
12th August 2004
12th August 2004
Accused person in court
Mr. Ndimbirwe for accused
Mr. Twinomuhwezi State Attorney
Mr. Rutaro court clerk
Court: Judgment read in open court
There is no previous record on the convict. Treat him as a first offender. He has been convicted of a serious offence. His conduct took the life of a young man. He should be punished. He has been on remand since 2001. Give him a deterrent sentence.
Convict believed in his innocence. He is a first offender. He is still young and has been on remand since 2001 — enough time to reflect on future conduct. We pray for a lenient sentence.
I have been on remand for 3 1/2 years. I suffer from ulcers. I wish to go and have care of my family and children. I used to be a teacher and that is how I earned my income. I look after orphans of my brothers. I am repentant and I do not intend to commit the offence again. I shall be a law abiding citizen.
I have considered the submissions of both counsel and the words of the convict. I have taken into account the fact that he is a first offender and the period he has spent on remand which I deduct from the sentence I would have given him. I have also considered the sentence given to his co-accused. Consequently I sentence him to 4 years’ imprisonment.