THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MBARARA
BYARUGABA TARASISIO ………………………………………………………ACCUSED
BEFORE: THE HON. MR. JUSTICE P K MUGAMBA
Byarugaba Tarasisio is charged with murder, contrary to sections 188 and 189 of the Penal Code Act. Six witnesses were called by
the prosecution. Sitereo Bangirana was PW1, Kakuru Fabius was PW2, D/C Muhumuza was PW3, Byarugaba Silvano was PW4, D/C Turyahikayo
Erifazi was PW5 while Dr. Ssendi Bwongi was PW6.
In his defence accused gave a statement on oath. He denied involvement.
The case for the prosecution is that accused together with one Bakashaba visited a bar owned by the deceased for a drink at about
8.00 p.m. on the night of 21st July 002. There they found the deceased, PW1, PW4 and several others. Thirty minutes later accused
and Bakashaba left the bar carrying a bottle of Coca Cola of the size that contains 500 ml. The deceased did not want the two to
take the bottle, which belonged to him, out of the bar. It was being carried by accused. The deceased had proceeded outside following
them. Soon after the two men threw the deceased onto the ground and accused hit him in the head with the bottle in issue. Report
of what happened was made to the authorities. Deceased was eventually admitted to Mbarara University Teaching Hospital. He died a
couple of days afterwards. Accused was subsequently apprehended and charged with the murder of the deceased.
The prosecution must prove all the ingredients of the offence beyond reasonable doubt. Where the charge is murder the following ingredients
must be proved:
that the deceased died,
that the killing of the deceased was unlawful,
that there was malice aforethought, and
that accused participated in the offence.
Evidence concerning the death of Mubangizi January was given by PW1, PW2 and PW4. There was also the evidence of PW6 who carried
out the post mortem examination of the deceased’s body. His report is Exhibit P.2. The defence itself did not contest the fact
of Mubangizi January being dead. I am satisfied that this ingredient has been proved, by the prosecution beyond reasonable doubt.
The law presumes that the killing of any person is unlawful except where it results from an accident or is excusable by law. See
Gusambizi s/o Wesonga vs R (1948) 15. EACA 63. There appears nothing on record to rebut this presumption. I find therefore that this ingredient also has been
proved beyond reasonable doubt.
Malice aforethought is the intention on the part of the perpetrator to bring about the death of someone, whether that person is the
one actually killed or not. In this case death resulted from neurogenic shock due to injuries to the brain from fractured temporal
bones secondary to being assaulted. Malice aforethought can be gathered from surrounding circumstances such as the type of weapon
used, the part of the body on which injury is inflicted, the number of injuries inflicted and the conduct of the assailant before
and after the attack. See Tubere s/o Ochen vs R (1945) 12 EACA 63. In the instant case the post mortem report states that there was an assault to the deceased which resulted into
his death. The injuries were on the head, which is a vulnerable part of the human anatomy. Whoever assaulted the deceased had malice
aforethought. This ingredient has been proved by the prosecution beyond reasonable doubt. –
PW1 and PW4 testified that they were at the scene and saw what transpired. According to PW 1 when the deceased followed Bakashaba
and accused outside the bar in order to retrieve the Coca Cola bottle Bakashaba had pulled the deceased and thrown him onto the ground.
Bakashaba had proceeded to kick the deceased. As Bakashabe did the kicking accused held the deceased. PW1 testified that he had seen
accused hit the deceased with a bottle in .the head. He further stated that the deceased fell about one metre from the doorway to
the bar. He said he had seen the altercation while he sat inside the bar in a position where he could observe what went on since
there was light coming from a lantern burning inside the bar. In his Police statement made on 26th July 2002 in the wake of the death
of the deceased PW1 did not state who in particular struck the deceased with the bottle. His statement read, ‘They assaulted
him with an empty bottle which hit him on the head’.
The evidence of PW4 was that he saw what went on that night outside the bar while he sat inside the bar near the doorway. It was
his evidence the deceased had fallen two steps from the doorway. He stated that no sooner had Bakashaba and accused gone through
the doorway to the bar followed by the deceased than Bakashaba pulled the deceased to the ground. Accused had then struck the deceased
in the head with the bottle. In a statement made to Police on 15th August 2002 however PW4 had stated:
‘For us we remained inside the bar drinking. When we finished our beers, we decided to go to homes. As we reached outside the
bar we couldn’t see Mubangizi who had gone following the three persons to collect his bottle’.
That statement was acknowledged by the witness as one he made to Police soon after the death of Mubangizi. From the statement which
is more contemporaneous to the occasion than the testimony in court, it emerges there was no sense of urgency when Mubangizi went
outside which one would expect if anything unusual happened. Those in the bar continued taking their drinks. Afterwards they went
outside but could not see the deceased. Had events been the way PW4 and PW1 related in court those in the bar would not have continued
drinking while confusion reigned nearby and there would have been no disappearance of the deceased since he would have fallen nearby.
Most probably the deceased traveled far from the bar. PW3 testified that he visited the scene and saw the vomit and faeces of the
deceased about 50 metres from the bar. It was his evidence he was taken to the scene by PW2. Interestingly in his evidence PW2 said
the deceased was found at a distance of about 4 metres from the bar.
In his defence accused stated that he passed by the bar on the night in issue. He said he had retired early leaving Bakashaba at
the bar. Further he said that he had already left the bar when the deceased was attacked.
When an accused person sets up a defence of alibi he is under no duty to prove it. The prosecution has the onus to disprove it by
adducing evidence which places the accused person squarely at the scene of crime.
The two prosecution witnesses who said they were present at the scene of crime gave contradictory evidence which goes to the root
of the prosecution case. They point to deliberate falsehood and cannot be ignored. Consequently I find the prosecution testimony
of what transpired on the occasion worthless and reject it.
The alibi of the accused person has not been disproved by the prosecution.
This ingredient of participation has not been proved by the prosecution beyond reasonable doubt.
The gentlemen assessors advised me to find accused not guilty of the charge. For the reasons I have given in the course of this judgment
I agree with that opinion; I find accused not guilty and acquit him accordingly.
20th June 2006