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Uganda V Byansi (Criminal Session 280 of 2014) 2019 UGHCCRD 103 (3 March 2019) .
Uganda V Byansi (Criminal Session 280 of 2014) 2019 UGHCCRD 103 (3 March 2019) .
VERSUS
10 BYANSI PETER…...………………………………………………..ACCUSED
JUDGMENT
BEFORE: HON. LADY JUSTICE EVA K. LUSWATA
15 The accused person BYANSI PETER was on an unspecified date indicted of the offence of
murder contrary to sections 188 and 189 of the Penal Code Act Cap. 120 LOU. It was stated that
on the 28th day of October 2013, at Kirindi Zone, Kaliro Town Council, Kaliro District, he
murdered NABIRYE MARIAM
20 The accused made a sworn statement to deny the charge and presented no witness. The
prosecution on the other hand, presented four witnesses to prove the charge.
Mr. Wassajja Robert represented the State, while Mr. Ngobi Balidawa Moses represented the
accused on a state brief.
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Brief facts
The prosecution’s case born out of the evidence at trial, is briefly that, on an unspecified date, the
30 accused was seen by one Kadicha Amuli (PWI) walking with one Mukisa and Nabirye Edith
Mariam (hereinafter referred to as the deceased) along Iganga Road. The accused was identified
when he stopped to purchase chapatti. The deceased’s body was on 29/10/13 discovered dumped
1
at Busandha Village, Bukoma Sub County in Luuka District on a roadside, next to a maize
plantation. The cause of death was confirmed to be suffocation as a result of strangulation.
It was suspected that the deceased may have been killed in Kaliro District and her body moved
5 and dumped in Busandha in Luka District. Photographs of the body were taken at the instance of
the police, and the body submitted to the Iganga Hospital where a postmortem was carried out.
Since the body was still unidentified or claimed, the deceased was first buried in the hospital
cemetery. Eventually, her family was identified and they retrieved the body which was buried in
Wololo in Butembe. Following a tip of by villagers, the accused was arrested. He was
10 interrogated by police and admitted that he had moved with the deceased person up to one
Baliruno’s home. That she became weak the following day and later died.
The accused person denied the charge. He stated that he was 15years old at the time of his arrest.
That by then he had been living with his parents in Bukirindi Zone but had at the material time
15 gone to visit his paternal aunt Betu Bintu in Budini Village in Kaliro District. He denied
knowledge of Mukisa but admitted knowing Paulo Baliruno as a brother and that he visited him
often for that reason. He denied knowledge of the deceased or having been in Bukirindi Zone on
the day or night she was allegedly murdered.
20 State counsel filed written submissions on 27/2/19 and defence counsel made his response orally
on 28/2/19. Both shall be taken into consideration in this judgment.
The law
On a charge of murder, the prosecution has the burden to prove the following elements beyond
25 reasonable doubt: -
i. The deceased, a human being, is dead.
ii. That the death was unlawful.
iii. The death was carried out with malice aforethought.
iv. The accused person participated in the commission of the offence or, is responsible
30 for the death.
2
It is incumbent upon the prosecution to prove all four elements of the charge to the required
standard which according to the authority of Woolmington vs. DPP [1935] AC 462 and
Sekitoleko vs. Uganda [1967] EA 53, should erase all reasonable doubt of the commission of
the crime with malicious intent. The onus is on the prosecution to prove the charge and
5 throughout the trial, that onus does not shift. Accordingly, a conviction will be based not on the
weakness of the defence presented, but on the strength of the prosecution’s case.
The record indicates that the charge was for murder contrary to Sections 188 and 189 of the
Penal Code Act. The particulars of the offence were narrated as follows:-
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PARTICULARS OF OFFENCE
BYANSI PETER and another still at large, on the 28 th day of October 2013 at Kirindi Zone,
Kaliro Town Council, Kaliro District murdered NABIRYE EDITH MARIAM.
15 It is to that charge that the accused entered a plea of not guilty on 9/1/19.
I noted some serious omissions in the indictment. Firstly it was not dated which contravenes the
provisions of the Section 27 of the Trial on Indictment Act (TID). I would have chosen to treat
that omission as one that does not go to the root of the indictment. However, there was a more
20 serious omission.
That Section should be read together with Section 25(c) T/D which emphasizes that particulars
of any offence required by law, shall be mentioned in the indictment. The offence of murder is
30 created under Section 188 of the Penal Code Act. Therein death must be caused with malice
aforethought.
3
The presence of a malicious intent is a mandatory ingredient to prove murder. It must appear
prominently in the particulars of the charge. That important ingredient would differentiate a
charge of murder from that of manslaughter under Section 187 of the Penal Code Act.
5 In my view, the charge is incurably defective and cannot be amended. In any case, it would be
too late in the day to allow any amendment because all evidence has been called and the accused
would have no chance to make a fresh plea to an amended indictment. In any case, the evidence
disclosed in the summary provided at the point the accused was committed for trial, disclosed a
charge of murder and not manslaughter. The prosecution was at the inception of the trial given
10 an opportunity to amend the indictment and chose not to do so. An amendment at this point
would be seriously prejudicial to the accused and would fall under the exception given in Section
50(2) TIA.
I would accordingly find that the charge of murder in this case is incurably defective and the
accused should have never been called to plead to it. Only a fresh indictment would have saved
25 this grave omission.
That said, I keenly followed the proceedings and digested the evidence. Even in the absence of a
defective charge, I was not satisfied that the prosecution had proved their case against this
accused person to the level required for a criminal trial.
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I would thus move to strike out the indictment as being incurably defective. The entire
proceedings antendant to the indictment are equally null. The Court cannot determine the fate of
the accused on a defective indictment or trial.
4
The accused is accordingly fully discharged of the indictment and I order for his immediate
release unless he be held on any other lawful charges.
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..............................
EVA K. LUSWATA
JUDGE
26/03/2019
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