[1993] UGHC 93

Ok- —

REPUBLIC OP UG. U7DA IN THE HIGH COURT OP UGANDA - AT KAMPALA HOLDEN AT GULU

HIGH COURT CRIMINAL SESSIONS CASE NO.143/91 (Original criminal case No. MG. 217 of 1990)

UGANDA PROSECUTOR.

- versus

BOSCO OKELLO alias ANYANYA ACCUSED.

BEEORE; THE. HONOURABLE. MR.. JUSTICE G. M. OKELLO.

## JUDGMENT

The accused Bosco Okello alias Anyanya was indicted in three counts for murder contrary to section 183 of the Penal Code Act. In the fourth count, he was indicted for aggravated Robbery contrary to sections 272 and 273(2) of the Penal Code Act.

The particulars of the offence allege that the offences were committed by the accused on the 20/2/90 at Layibi village, Omoro County in Gulu District. The persons alleged to have been murdered were Auma Odida, Lucia Acen and Hillario Ochola in counts Nos. 1, ² and ³ respectively. The particulars further allege that the same assailants at the same place and time after murdering the three deceaseds committed robbery against Beatrice Lamunu. She was allegedly robbed of a Blanket, ² bedsheets, ³ drosses, one plastic mug, ³ blouses, ⁷ children's dresses and cash of shs. 1,500./=. That a deadly weapon to rat a gun was used in the course of the theft.

It was the case for the prosecution that the third accused Hillario Ocnola had eloped with the mother of the accused in March ¹⁹⁸⁹ and cohabited with her at Layibi village. That at this time, 'the accused was a rebel. In January 1990, the accused who was not at all happy with the relationship of his mother and Hillario Ochola. came to Ochola's home at Layibi village and expressed his

displasure of that affairs and threatened that he would return and kill both his mother and her lover.

That on the 20.2.90, the accused came back at night in the company of his other colleagues who are still at large and shot dead the three deceased persons. He was identified. That after the incident, the accused went into hiding but he was later arrested and charged with these offences. He denied all the charges and pleaded an alibi. That he was a soldier of the LDU and was at their Camp.

To secure a conviction for murder it must be proved (a) that the deceased is dead, (b) that his death was unlawfully caused, (c) that it was caused by the accused and (d) that the accused acted with malice aforethought. The duty to prove the above essential elements of the offences lies squarely on the prosecution. That burden does not shift on the accused. An accused does not bear the duty to prove his innocence. This is an established principle of our criminal law. (See

Voolmington $-vs-$ DPP, (1935) AC 462).

The above principle holds true even where an accused sets up an alibi like in this case, as his defence to the charge against him. It is still the duty of the prosecution to disprove the alibi by leading evidence which places the accused at the scene of crime. See Francis Schitoleko -vs- Uganda $(1967)$ EA 351.

In that case, Sekitoleko was charged with Robbery contrary to sections 272 and 273 (2) of the Penal Code Act. His defence was an alibi. In the course of his judgment the trial Magistrate said that the burden of proving the alibi lay on the Sekitoleko was convicted and sentenced to three accused. years imprisonment. He appealed.

On appeal, it was held that as a general rule of law, the burden on the prosecution to prove the guilt of a prisoner beyond reasonable doubt never shifts whether the defence set up is alibi

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or sone thing else. Authorities relied on were IL-vs- Johnson ASR 96.91 Leonard Aniseth tA. 20,6.

The standard of proof required to secure a conviction is beyond reasonable doubt. The tern "beyond reasonable doubt" was hold to mean that the evidence adduced must carry a reasonable degree of probabilities of the accused's guilt leaving only a very remote possibility in his favour. (. Sec,J.iiIler -vs- Mini.s\_ter of Pensions (1947) ² AER ³⁷² at 373-4) •

In the instant case? to discharge the burden cast upon it by law, the prosecution adduced the evidence of ⁵ witnesses. Of those the evidence of (PW1 ? PW2 and PW3) were admitted under section ⁶⁴ of the T. I. D. PW4 and PW5 testified in open court. The accused- gave unsworn statement in his defence.

With the above principles in mind? I shall now proceed to consider whether the evidence adduced proves beyond reasonable doubt all the above essential elements in the offences charged. On ground of convenience? I shall consider the offences in counts 1? ² and ³ together.

On whether the three deceaseds - Auma, Odida, Lucia Aeon and HiIlario Ochola are dead? there is no dispute. Both the prosecution and the defence admit that the three deceaseds are dead. That admission apart? there is overwhelming evidence showing that the three deceaseds are dead. There is the evidence of P'72, PW4 and PW5 which show that they know the throe deceaseds and that they arc now dead. These evidence wore supported by the evidence of PW1, the Doctor who performed Post Mortem Examination on the bodies of the deceaseds. His Post Horton Examination reports Exii. P1 ? Exh. P2 and Exh. P3 further support that the three deceaseds are dead. The Post Morten Examination Reports show the cause of death in each case to be haemorrhage and shock duo to gun-shot wounds.

The above evidence have not been challenged and there is nothing instrinsically false with them. I therefore believe them. Like the gentlemen Assessors, I find that the three deccaseds - Auma Odida, Lucia Acen and Hillario Ochola are dead.

On whether the death of these three deceaseds were unlawfully caused, the prosecution contended in the affirmative. The S. R. S. A argued that homicide is always presumed to be unlawful unless it is accidental or excusable. He relied on the case of R $-v-$ Wesonga (1943) 15 EACA 65.

In that case, the appellant was convicted of the murder of Kesekiya. Kesekiya was living adulterously with a woman who by custom was inherited by the appellant's father from his late brother. Kesekiya was cohabiting with the woman in the house which was also by custom inherited by the appellant's father. The appellant's father complained to the authorities against those affairs. He was advised to catch the two by night. When the appellant and his father went to the house to catch the couple, the appellant's father was killed by the deceased. Seeing what happened to his father, the appellant slew the deceased.

At his trial, the appellant admitted the killing of the deceased but pleaded provocation. That his father was killed by the deceased in his presence and that this amounted $\scriptstyle\text{to}$ It was argued that the killing of the appellant's provocation. father by the deceased was not in unlawful act to amount to provocation. The appellant was convicted.

$\texttt{O}_n$ appeal, it was held that homicide unless accidental is always unlawful except in circumstances which make it excusable. That if the deceased had not been killed and stood his trial for causing the death of Wesonga, the prosecution might have proved that he exceeded his right of self defence.

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The presumption that homicide is always unlawful can be rebutted by evidence that the killing was either accidental or that it was committed in circumstances which make it exusable. Death is justified or excusable if it is caused in self-defence. The burden to rebut the above presumption is on the accused. The standard of proof to rebut the presumption is low. It is only on the balance of probabilities. This is a standard much lower than beyond reasonable doubt required to secure a conviction.

In the instant case, there is no evidence to suggest that the death of any of the three accused persons was either accidentally caused or that it was justified or excusable. There is no evidence that any of the three deceased persons was killed in self-defence. Clearly there is no evidence to rebut the above presumption of the law.

On the contrary, the evidence of Beatrice Lamunu (PW4) shows that the deceased persons were killed by revengeful assailants who attacked their home in the night of 20.2.1990 and shot dead the three deceased persons.

The defence did not dispute that the death of the three deceased persons were unlawfully caused. From the above evidence, like the Assessors, I find that the death of the three deceased persons were unlawfully caused.

The next ingredient is that the killer acted with malice aforethought in causing the death of the three deceased persons.

The S. R. S. A contended in the affirmative. He relied on the evidence of PW1, the Doctor who carried out Post Morten Examinations on the bodies of the deceased and on the Post Mortem Examination Reports - Exh. 71, Exh. P2 and Exh. P3 showing the nature of the injuries inflicted on the deceased, the part of the bodies on which the injuries were inflicted and the nature of the weapon used.

Malice aforethought is defined under section 186 of the Renal Code Act to mean intention to cause the death of any person, whether such a person is the person actually killed or not or (b( knowledge that the act or ommission causing death will

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probably cause the death of some person whether such a person is the person actually killed or not.

Malice aforethought is therefore a mental element of the offence of murder. As such it is difficult to prove by any direct evidence. But it is now established that malice aforethought can be inferred from the surrounding circumstances of the offence. This includes the weapon used, the part of the body on which such weapon was applied and the nature of the injuries inflicted. Use of a lethal weapon like a panga, or a spear, or a knife or a gun on vunerable part of the body of the victim readily attracts inference that the assailant had the necessary malice aforethought.

Sec R v Tubere s/o Ochen (1945) 12 EACA 63.

In that case, the appellant was convicted of murder. It was proved that he had seriously assaulted the deceased with a heavy walking stick, causing severe injuries from which the deceased died shortly afterwards. The appellant himself did not deny the use of the stick.

On appeal, Sir Sheridan CJ as he then was said; "With regard to the use of a stick in cases of homicide, this court has not attempted to lay down any hard and fast rule. It has a duty to perform in considering the weapon used, the manner in which it is used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the use of say, a spear or a knife than from the use of a stick; that is not to say that the court takes a lenient view where a stick is used.

Every case has of course to be judged on its own facts." The court has not laid down a rule where the hiller weapon was a stick. In such situation each case must be judged on fts own facts to decide whether malice aforethought has been established.

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In the instant case, the evidence of Beatrice Lamunu P'74 shows thcit the weapon used was a gun fired at close range, The evidence of P-V1, - the Doctor who carried out Post Mortem Examinations on the bodies of the deceaseds show that the cause of death in each case was haemorrhage and shock duo to gun-shot wounds. The Post Mortem Examination Reports Exh. P1, Exh. P2 and Exh. P3 show that each victim had a gun-shot wound which penetrated through the chest destroying cither the lung or the heart. The evidence of PW4 further shows that after killing the deceaseds, the killer got out from the house briefly and returned. That on his return, the killer was demanding money from the dead bodies while IcnocldLng their heads. There was no contrary evidence from the defence.

Considering the weapon used, the manner in which was used and the part of the body of the victims on which the weapon was applied, I agree with the gentlemen Assessors that the killer had the necessary malice aforethought, Whoever at close range, fires a gun aimed at the chest of his victim must but intend to kill his victim. The chest is a very vunerablo part of the body. Again, demanding money from dead bodies while knocking their heads is an act showing lack of remorse on the part of the killer. It is a reinforcement of the inten'bi on to kill. I find that this ingredient too was proved beyond reasonable doubt.

The last end most crucial ingredient is that the accused was the killer. The prosecution contended in the affirmative. They relied on the evidence of identification by Beatrice Lamunu PW4. Bor the defence it was contended that the single identifying witness did not accurately identify tj..'.e assailant because the conditions did not favour correct identification.

I did direct the Assessors as I now direct myself on the principle of the law governing the evidence of identification by a single witness. The law is that before acting on the evidence of identification by a single witness, court must first consider

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the conditions in which the identification was claimed to have been made. V/hcro the conditions favoured correct identification, and court is satisfied that the identification was accurate, it may convict on that single evidence of identification. But, where the conditions were difficult court should not act on such evidence without corroboration.

See Uganda -vs- Angello jais.es^o .and ^Anor (1.9.82) ^HO^B 72,

In the instant case, Beatrice Bamunu ^P'⁷⁴ testified that she had known the accused before the incident because, on four separate occasions, the accused had 'visited his mother who was cohabiting with Billario Ochola the brother of the witness. That at all these occasions, she greeted him end thereby became familiar with his voice and facial appearance.

The accused gave unsworn statement in his defence. In that statement, he did not deny that the witness know Ilin before the incident. On the contrary, he admitted that at one time, he stayed for one full week at the home of Alon (Hillario Ochola) where lais mother was cohabiting. In those circumstances I find that Beatrice Bamunu PW4 had known the accused before the incident.

On whether she had accurately identified the accused at the scene of crime, Beatrice Bamunu (P',74) testified that on the fateful night, the two deceased women - Auma Odida and Bucia Acen ■who were her mother and aunt respectively and herself had already retired to bed in one hut when she hoard a voice outside calling "Odida" to open the door. She did not recognise that voice but she got up from bed and sat on her bed. There was some food on fire in the cooldng place in the house. That her mother Auma Odida who had also hoard the voice, got up and opened the door. Then a gun mon in military uniform entered the house, stood behind her (P',74) and ordered for light to bo lit.

Beatrice Bamunu (P',74) told court that, she identified the gun man as the accused when he was entering the house. ^That she was able to identify him with the help of the light from the glowing

fire in the coolclng place. Secondly that she further identified the assailant as the accused hy his voice when ho ordered for light to ^Ido lit. That when her mother Auma Odida lit ^a Tadoba and placed it near the polo in the centre of the round hut, the two deceased women stood side by side by their beds which was noar tho centre of tho hut. Thon she heard a voice from outside saying in swahili "Piga Risas" That this was followed by a gun-shot from outside. Thon tho accused who was inside the hut with them responded by firing a shot shooting Auma Odida and Lucia Aeon with that one shot. Tho two deceased fell down, groaned and died.

That after killing tho two docoasod women, the gun man got out briefly and returned. On his return, the gun man stood behind her and demanded money from her. 'Then she replied that she had no money, he assaulted her. Thon she got up, put her child on her back and wadlcod out. Ho followed her. From outside, she saw two other gun men both clad in military uniform. Those gun mon asked her as to what was wrong. She replied that there was no tiling wrong. Thon she pulled some grass from the roof and returned into tho house to light it in order to go to her father's house for money to give to tho assailant. That the gun man (Accused) still followed her into the house with some grass also in his hand. Me stood behind her when she bent to light her grass torch from the fire in the coolclng place. lie later moved and stood beside her to light his own grass torch. That at this time, she camo face to face with the gun man when she was rising up after lighting her grass torch. That she again confirmed that tho gun man was the accused. She testified that the operation took 30 minutes.

Mr. Atare argued for the accused that tho condition did not favour correct identification. I am inclined to share that view. First of all, PW4 testified that she first identified the assailant as the accused when ho was entering the house after the door was opened by Auma Odida. That she was able to identify him with the

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help of the light from the gloving fire in the cooking place. She also testified that there was food on that fire. If there was cooking pot on that fire, it must have covered the glowing fire thus making it dim. This in my view must have left the house inadequately lit. I think this explains why the assailant on entering the house ordered for light to be lit. I am of the view that with that dim light, Beatrice Lamonu (PMA) could not have accurately identified her assailant.

PW4 further testified that she also identified the assailant as the accused by his voice when he ordered for light to be lit. PW4 had earlier testified that she had talked to the accused on four previous occasions when he visited his mother who was cohabiting with her brother. That at each of these occasions she only greeted him and went away. There is also evidence by PW4 that at the time of the alleged identification she was gripped with fear. In those conditions it is my view, that PW4 could not have accurately identified the voice of a person she had been meeting in passing. / She did not have time to sit together and converse with the accused beyond mere greetings.

The S. R. S. A submitted that if corroboration was required, the threat made by the accused a few days before the incident and his conduct subsequent to the incident provided the needed corroboration. The cited R v OkSacha s/o Olilia (1940) 7 EACA 74 to support his view that an earlier threat made by an accused was capable of providing the necessary corroboration. He also relied on <u>Kaladio Terekabi v. Uganda (1975)</u> HCB 63 to support his view that a strange conduct of an accused subsequent to the event was capable to provide corroboration against him.

I did direct the Assessors as I now direct myself on the law governing corroboration. Corroboration is an independent evidence which implicates the accused in material particulars in the commission of the offence. Previous threat by an accused was held to be capable of providing the necessary corroboration against him.

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In Okecha s/o Clilia above, the appellant was convicted of murder. The material evidence against him. was of a child. The question arose as to whether there was corroboration of that evidence. There was evidence that the previous wook, the appellant had threatened the deceased on account of cattle trespassing. It was hold on appeal that, that evidence amounted to corroboration. That it was consistent with the words

"you often allow your goats to stray on my cotton plot and today you are doing the same thing on my potato patch; I shall kill. you today" which the appellant

said immediately before strangling the deceased.

In the instant case, PW4 testified that three days before the incident the accused camo to the homo of Ilillario Ochola with whom Us mother was cohabiting and on finding that the latter was assaulted by Ochola, threatened that ho would return and revenge the assault on Ins mother. The accused denied making such a threat.

Clearly, whether the above throat was made by the accused or not is a question of credibility. I did direct the Assessors as I direct myself on the law governing assessment of credibility of a witness. The principle of the law is that consistencies and inconsistencies in the evidence of a witness are relevant consideration in assessing his credibility. Grave inconsistency unless satisfactorily explained, usually but not necessarily, results in the evidence being rejected. Elinor inconsistency however, unless the trial Judge thinks that it points to ^a deliberate untruthfulness will not have the same effect; in any case, the trial Judge may find a witness substantially truthful even though ho had lied in sone respect. This principle was laid in the case of Alfred Tajar -y- Ug^da EACA Or., Appeal No. 167/69•

However, it was also held in Z Ndyayekwa and others -v- Uganda EACA Cr. Appeal No. $2/77$ that failure of a witness to name his assailant at the first opportunity is a serious flaw which greatly affects his credibility as well as the cogency of his evidence.

In Efurasi Ndyayakwa and others' case above, Ssekandi J. A. as he then was, when dealing with assessment of credibility of a witness observed:-

"Although it is open to a trial Judge to find that a witness has been substantially truthful even if he had lied in some particular respect, in the instant case, we find it difficult to separate as did the learned trial Judge, the inconsidtencies in the evidence of Bageine given in court and his Police statement from the material evidence regarding the identification of the three appellants. We feel that the failure of Bagcine to name the three appellants to Bataka, his own uncle, on the first opportunity, was a serious .flaw and, in our view, it greatly affects his credibility as well as the cogency of his evidence on the vital issue of identification."

A similar view was taken in the case of David Mukasa and Another $-vs-$ Uganda EACA Cr. Appeal No. 41/76 regarding the failure of a key and only identifying witness to name the assailants on the very first opportunity.

In the instant case, Beatrice Lamunu PW4 was the key and only identifying witness. Odida Cjok $(P75)$ 's evidence had been menifestly unreliable and was seriously discredited in crossexamination. Beatrice Lamunu PV4 did not name her assailant at the first opportunity. On the above principle, the failure greatly affected her credibility as well as the cogency of her evidence particularly on the issue of identification. With her credibility undermined, it is unsafe in the absence of corroboration to find that the accused made the alleged threat. There is no other evidence in support of the claim that such a threat was made.

The learned R. S. Attorney further submitted that the conduct of the accused after the incident provided the necessary corroboration against him. He relied on Kaladi^o Torekabi ,-y- Uganda

I did direct the assessors as I now direct myself on the law governing the strenge conduct of an accused after the event. It is that the conduct of an accused in disappearing from his village after the incident provided corroboration against him.

In . To.ypkg-bi '\_s case aboyo ⁷ the deceased was seen running with a cut wound on his head and was covered in blood. He complained to two separate people that he was cut by Torckabi. The deceased died a few hours later. The accused who hoard of the deceased's death disappeared from the village for throe days. He did not a,ttond the inquiry into the death of the deceased.

In Kayibgnda, -vs- Uganda ,. C1.97\_6)JICB ²⁵³ ⁹ the appellant was charged with rape. He ran away when the complainant repeated the allegation against him. in his presence before her God-mother. There was also evidence that after running away, the appellant was found hiding in the kitchen and would not come out of the kitchen voluntarily when he was coiled out. He was physically pulled out.

It was held that the above strange conduct of the appellant provided corroboration to the complainant's allegation against him. Clearly, strange conduct of an accused after the event is capable to provide corroboration against him.,

In the instant case, it is alleged that the accused went into hiding after the accident. That he never attended the funeral of HiIlario Ochola who was his step father and never reached HiIlario Ochola'^s home after this incident. It was argued since that the above conduct was strange ' the accused used to frequent the home before the incident. It was submitted that that conduct was capable to provide corroboration to the evidence of identification by Boatlice Lamunu PV/4.

Tins case is distinguishable from -the above two, In this ease, there is no evidence that the accused was informed of the incident or that he had Imovzn about it and hid himself. In the absence of the above evidence, the failure of the accused to attend the funeral of his step father can not be attributed to hiding. It night have been due to ^a genuine lack of knowledge of the death. In those circumstances the conduct of the accused can not be considered si-range. All in all, there is no sufficient evidence to establish beyond reasonable doubt the identity of the accused as the assailant in this case. There wore several doubts regarding Ills identity that have not been resolved He must therefore take advantage of those doubts.

The charge of Aggravated Robbery in the fourth count was also linked to the first three counts. It was alleged that it was the same assailant in the first three counts who committed the Robbery as well.

The evidence of P',74 proved beyond reasonable doubt the first essential elements in the offence of Aggravated Robbery. It showed that there was theft of the items listed in the indictment. The theft was againstbier - Bea.trice Lamunu PW4. The evidence further proved that a deadly weapon was used in the course of the theft. ^A gun was fired killing three people. After that the assailant demanded for money from her (P'74). She was assaulted. And as she was going towards her father's house for some money to give to her assailant, another gun shot was fired. At this stage she (P',74) managed to flee into hiding. On return, she found her properties listed in the indictment were missing from the house.

The question is who stale then? The assailants wore suspected. But who are those assailants? Like in the first three counts of murder, there is no evidence to establish beyond reasonable doubt Hie identities of those assailants.

The accused was not sufficiently linked with the commission of those dreadful offences. In cho circumstances I disagree with the gentlemen Assessors - who found that the accused was accurately identified by I thus find that the prosecution have not proved beyond reasonable doubt the charges against the accused in all the four counts. In consequence, the accused is acquitted of the offences in all the four counts. He is therefore ordered to bo sot free forthwith unless ho is being hold for some other lawful ground.

G. M. Okeho^

Judge 17/8/1993.

Judgment read in open court in the presence of: Mr. Ogwal-Olwa for the prosecution.

Mr. Ataro for the accused.

G-. II. Okello Judge

17/8/1993.