Wakilii

Uganda v Beriwu & Ors (Criminal Case No. 0118 of 2014)

High Court · [2017] UGHCCRD 24 · 2017 Conviction Entered (Two Accused); Acquittal Entered (One Accused) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for murder in the High Court
Decision
A1 acquitted and discharged; A2 and A3 convicted of murder and sentenced to imprisonment

Observed later treatment

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Holding

Held that two of the three accused were guilty of murder where circumstantial evidence placed them at the scene with the deceased shortly before his death, they bore a grudge against him over witchcraft accusations, and they did not participate in the search for his body. The first accused was acquitted as the prosecution failed to disprove her alibi that she had left the garden before the death occurred. The second and third accused were convicted on circumstantial evidence.

Outcome

A1 acquitted and discharged; A2 and A3 convicted of murder and sentenced to imprisonment

Facts

The deceased Tani Anena and A3 were brothers living in the same homestead with A1 (A3's wife) and A2 (their son). In March 2014, the deceased accused A1 of witchcraft, claiming it caused his children's illnesses. Village elders convened consultations with witchdoctors which produced inconclusive results. On 25 April 2014, the deceased was digging in his garden. PW4, his son, saw him there with the three accused digging nearby. PW4 left his father alive with the three accused and returned home. The deceased never returned. His body was found the next day buried under leaves and grass in a nearby garden, approximately 100 metres from where he was last seen. The post-mortem revealed death from brain damage and skull fractures. Signs of a struggle and drag marks were found leading from the deceased's garden to where the body was discovered. Four sets of footprints were visible. A1 and A2 were arrested immediately; A3 disappeared from the village and was arrested three months later.

Issues

  1. Whether the death of Tani Anena occurred.
  2. Whether Tani Anena's death was caused by an unlawful act.
  3. Whether the unlawful act was actuated by malice aforethought.
  4. Whether the accused participated in causing the unlawful death of Tani Anena.

Orders

  • A1 Beriwu Paska acquitted and ordered to be released forthwith unless held for other lawful reason.
  • A2 Oyii Pakivale convicted of Murder contrary to sections 188 and 189 of the Penal Code Act.
  • A3 Onega Geoffrey convicted of Murder contrary to sections 188 and 189 of the Penal Code Act.
  • A2 Oyii Pakivale sentenced to 12 years and 3 months' imprisonment.
  • A3 Onega Geoffrey sentenced to 22 years and 3 months' imprisonment.
  • Period of 2 years and 9 months spent on remand set off against the sentences.
  • Convicts advised of right of appeal within 14 days.

Rules and key headnotes

Murder — Elements of the Offence — Burden of Proof
To secure a conviction for murder, the prosecution must prove beyond reasonable doubt that a death occurred, the death was caused unlawfully, the act was actuated by malice aforethought, and the accused caused the unlawful death. The burden does not shift to the accused, who are convicted on the strength of the prosecution case and not because of weaknesses in their defence.
Murder — Malice Aforethought — Inference from Conduct
Malice aforethought may be inferred from the weapon used, the manner of its application, the part of the body targeted, and the ferocity of the attack. Where an assailant crushes the skull of a victim by targeting the head with sufficient force to break all sutures, the court may infer an intention to cause death or knowledge that death would probably result.
Identification Evidence — Conditions for Acceptance
Before convicting on identification evidence, the court must warn itself of the need for caution and test the evidence with care, considering factors favourable and unfavourable to correct identification. Where a witness knew the accused, saw them in daylight in an open space, and observed them over several hours, the conditions are conducive to proper identification and the evidence may be accepted if free from the possibility of error.
Defence of Alibi — Burden of Disproving
An accused raising a defence of alibi has no duty to prove it. The burden lies on the prosecution to disprove the alibi by adducing evidence which squarely places the accused at the scene of crime as an active participant. The alibi need not be disproved beyond all doubt; it is sufficient if the prosecution evidence creates a reasonable doubt about the alibi.
Circumstantial Evidence — Standard for Conviction
In a case depending exclusively on circumstantial evidence, the court must find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than guilt. The circumstances must produce moral certainty to the exclusion of every reasonable doubt. Before drawing an inference of guilt, the court must ensure there are no co-existing circumstances that would weaken or destroy the inference.
Circumstantial Evidence — Chain of Circumstances in Murder
A chain of circumstantial evidence comprising a grudge between accused and deceased, the accused being the last persons seen with the deceased, the accused not participating in the search for the deceased, immediate flight from the village by one accused, and failure to attend the deceased's funeral may irresistibly point to guilt where no co-existing circumstances weaken the inference.
Sentencing — Murder — Starting Point and Mitigating Factors
The starting point for sentencing in murder cases is 35 years' imprisonment as prescribed by the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013. The death penalty is reserved for the worst cases. Where an accused is a first offender and young, a reformative sentence below the starting point may be appropriate. The period spent on remand must be deducted from the sentence imposed.

Legislation cited (6)

Cases cited (5)

  • Ssekitoleko v Uganda [1967] EA 531
  • Miller v Minister of Pensions [1947] 2 ALL ER 372
  • Bukenya v Uganda (Court of Appeal Criminal Appeal No. 51 of 2007)
  • Sunday v Uganda (Court of Appeal Criminal Appeal No. 103 of 2006)
  • Byaruhanga v Uganda (Court of Appeal Criminal Appeal No. 144 of 2007)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Uganda v Beriwu & Ors (Criminal Case No. 0118 of 2014) [2017] UGHCCRD 24 (8 February 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.