[1996] UGHC 43

## THE REPUBLIC OF UGANDA

. My this mi Jostice Eyenn's Wiende

IN THE HIGH COURT OF UGANDA AT SESSION

## HOLDEN AT GULU

CRIMINAL SESSION CASE NO. 443 OF 1995

...................... PROSECUTION **UGANDA VERSUS**

BANYA BONIFACE ................ ACCUSED

BEFORE: THE HOMOURABLE JUSTICE G. M. OKELLO

## SENTENCE

The accused Banya Boniface was originally indicted on a charge of murder contrary to section 183 of the Penal Code Act. The particulars of the offence alleged that Banya Boniface on or about the 8th day of July 1995 at Lemo-Bongo Wie Ward Labongo Division in Chua County Kitgum District murdered one Oyoo John.

When the charge was put to him, the accused offered a plca of an A quilty to manslaughter a minor/cognate offence to murder. The Resident Schior State Autorney accepted that offer of plea. According to the facts which the State Attorney narrated, the accused had invited the deceased and other friends to a party at his home to mark the union day on 8th July 1995. This was a big day in Kitgum District and several people had organised parties in their homes to mark this day with friends. The deceased came to the party at the accused home. They were entertained to local brews. Later in the night most quests left for their respective homes but the deceased remained behind. By $3.00$ a.m., the accused instructed one of his two wives to copare a bed for the deceased to sleep on in one of the houses in the homestead. This was done. Then the deceased and the accused who were both apparently drunk retired to sleep in different

huts within the homestead. The following morning however, the body of the deceased was found dead in a pool of blood in the hut ho had gone to sleep. Narrated facts indicated that eye witnesses reported that the deceased's body had a deep cut wound on the neck. In their opinion the wound could have been inflicted by an axo!.

When tlio alarm was made, people had gathered at the scene in the accused's homestead but he was not there. The facts indicated that evidence was received that the accused had reported to his uncle Oryem early that morning that he had caused the death of the deceased whom ho had found having sexual intercourse with his (Accused's) wife. Then the uncle took him to the police station Kitgum whore ho (Accused) made a charge and caution statement. In the statement, the accused admitted causing the death of the deceased for having found him committing adultery with his (accused's) wife. The accused admitted the facts narrated as substantially correct. That ihey depict accurately how the incident happened. Post Mortem Examination Report put the cause of death e.s haemorrhagic shock.

Manslaughter of which the accused is convicted is an offence unde-'' section ¹⁸² of the Penal Code Act. It carries ^a maximum sentence of life imprisonment. Court however, has power to impose a lesser sentence if the conditions in which the offence was committed warranted.

In the instant case, the accused is ^a first offender. An establised practice of this court is not to impose maximum sentence on a first offender. It is also ^a requirement of the law that the period spent by an accused person in custody prior to his trial must be taken into account when computing sentence. This accused had been in custody prior to his trial for ¹ year and ³ months as from 11th July 1995. This period will be taken into consideration when imposing sentence. Against the above, the cardinal philosophy of sentence is

that it must not only befit the offence but also the offender.

The circumstances in which this particular offence was committed was grim. The deceased's body was found lying in a pool of blood His neck bore a deep cut wound. The nature of the injury speak for itself of the seriousness of the assault. The position of the injury would also show the intention of the assailant - Neck is a very vulnerable part of the body.

The State Attorney stated that he conceded to the plea because of the alcohol which the accused and the deceased had taken before. the I agree with that. Then /element of alleged adultory which the deceased was found committing with the accused's wife also offered reasons to negative malice aforethought. But the offence was committed in a brutal manner.

For that I consider that a more severe sentence is called for. In that regard I sentence the accused to 6 years imprisonment not withstanding that blood compensation had already been paid by the accused family to the family of the deceased. People must not take the law into their hands in the hope for compensating the victim or the family of the victim of his crime.

Judge

$4/11/1996$