Wakilii

Uganda v Yonasani (Criminal Session Case 42 of 1987)

High Court · [1993] UGHC 52 · 1993 Acquittal Entered (Murder); Convicted (Common Assault) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Remittal from Supreme Court for findings on alternative count of murder after conviction on kidnapping with intent to murder was quashed on appeal
Decision
Accused acquitted of murder but convicted of common assault and released for time served (five years imprisonment)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the prosecution failed to establish the cause of death beyond reasonable doubt due to the absence of medical evidence and the presence of co-existing circumstances after the deceased was dragged into the bush. The court could not conclusively determine which blow caused death nor establish common intention among the accused and others to kill or cause grievous harm. The accused was acquitted of murder but convicted of common assault under section 227 of the Penal Code and sentenced to time served.

Outcome

Accused acquitted of murder but convicted of common assault and released for time served (five years imprisonment)

Facts

In October 1980 at Harubaho village, Kabarole District, the accused Yonasani Balinda and a group called the deceased Muhammed Balinda from funeral rites at Kabagarama's place. The deceased was taken to Harubaho Trading Centre where he was interrogated about theft. The accused and others assaulted the deceased with sticks and clubs. The accused hit the deceased once on the back with a stick and ordered others to beat him. The deceased was struck on the forehead, became unconscious, and bled profusely. His hands were tied behind his back, a rope was tied around his neck, and he was dragged across the road into the bush while still alive. The accused subsequently burned the deceased's properties and threatened his family. The deceased has not been seen or heard from since that incident. The accused was originally convicted of kidnapping with intent to murder and sentenced to 16 years imprisonment, but the Supreme Court quashed that conviction and remitted the matter for findings on the alternative count of murder.

Issues

  1. Whether the accused committed the offence of murder contrary to sections 183 and 184 of the Penal Code Act.
  2. Whether the deceased Muhammed Balinda was dead.
  3. What caused the death of the deceased.
  4. Whether the killing was unlawful.
  5. Whether the accused had common intention with others to kill or cause grievous harm.
  6. Whether the accused had malice aforethought.

Orders

  • Accused acquitted of the charge of murder contrary to sections 183 and 184 of the Penal Code.
  • Accused convicted of the offence of common assault contrary to section 227 of the Penal Code.
  • Accused sentenced to time served (till the rising of the Court).
  • Immediate release ordered unless the accused is being held for any other offence.

Rules and key headnotes

Murder — Proof of Death — Presumption of Death — Missing Persons
Where a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to those who affirm it under section 107 of the Evidence Act. Further, under section 19 of the Estates of Missing Persons (Management) Decree 1973, where a period of three years elapses from the date of disappearance, the missing person shall be presumed dead.
Proof of Death — Medical Evidence — Circumstantial Evidence
Death can be established without medical evidence if there is other evidence showing that the victim of murder is in fact dead. However, before drawing the inference of guilt from circumstantial evidence, the court must be sure that there are no other co-existing circumstances which would weaken or destroy the inference.
Murder — Cause of Death — Circumstantial Evidence — Co-existing Circumstances
Where a victim is assaulted and dragged into the bush while still alive and is never seen again, but there is no evidence of what happened after the victim was left in the bush, there are co-existing circumstances which weaken the inference that the accused caused the death, and the cause of death is not established beyond reasonable doubt.
Alibi — Burden of Proof
An accused person who puts forward an alibi as a defence does not thereby assume a burden of proving the defence, but the burden of proving his guilt remains throughout on the prosecution. The prosecution must destroy the alibi by placing the accused at the scene of crime.
Murder — Common Intention — Joint Enterprise — Section 22 Penal Code
Where a number of persons jointly beat another person causing his death and it is not possible to establish which blow actually caused the death, none of the persons taking part in the beating may be convicted of murder unless it is proved that he had a common intention with the others to kill or cause grievous harm to the deceased. Common intention under section 22 of the Penal Code may be inferred from presence, actions, omissions, and failure to disassociate oneself from the attack.
Murder — Malice Aforethought — Inference from Weapon and Injury
Malice aforethought flows more readily from the weapon used and the vulnerable part of the body injured. Intention to cause death or grievous harm will more readily be inferred in cases where a club, pestle, or other heavy weapon is used than in cases where the instrument used was a stick. However, malice aforethought cannot be established where there is no evidence that death resulted from the assault.

Legislation cited (8)

Cases cited (13)

  • Sekitoleko v Uganda (1967 EA 931)
  • Uganda v Stephen Katisa (1973 HCB 138)
  • Kimweri v Republic (1968 EA 452)
  • Bumakali Lutwama and Others v Uganda (Criminal Appeal No. 38 of 1989)
  • R v Kipkering Arap Koske and Another (1949 16 EACA 14)
  • Simon Musoke v R (1958 EA 715)
  • Yowana Serwado v Uganda (Criminal Appeal No. 2 of 1977)
  • R v Busambuzi Wesonga (1948 15 EACA)
  • Magayi v Uganda (1965 EA 670)
  • Tabuleyanka s/o Kirija and Others v Rex (1943 10 EACA 51)
  • Soleman Mugayi and Others v Republic (1965 EA 782)
  • Tubere's case 1944 12 EACA
  • R v Wesirika s/o Wataba (1956 ULR 66)

Full judgment

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

Uganda v Yonasani (Criminal Session Case 42 of 1987) [1993] UGHC 52 (19 January 1993)
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.