[1991] UGHC 79

ENTECING

- Concurrent<br>- Conscernative<br>- When & apply

## THE PUBLIC OF HEADA

IN THE ORIGINATE COURT OF ALOI

$K-VI-JCI$ $KG$ . 97 OF 1988

**UGANDA** $\cdots \cdots \cdots \cdots$ PROSLCUTOR V.3.

CELINA AGUTI : : : : : : : : : : : : : : : : $ACCUSED$

BEFORE: THE HON. MR. JULITUE G. M. CKLLLO

## **REVISION ORDER:**

Celina Aguti W/o Olipa (al) was charged in count 1 with being in possession of articles used in practising witchcraft contrary to section 5 (1) of the witcher ift act. She pleaded not guilty but after trial, She was convicted as charged and was subsequently sentenced to 4 months inpuisonment. In count 2, both accused were were jointly charged with practising witchcraft contrary to section 3 (1) of the witchcraft act. They both pleaded not guilty. After convicted and trial however, Celina aguti (al) was again-sentenced to 8 months imprisonment in this count. The sentences were ordered to run consecutively. She was further ordered to migrate from the area after completion of her prison Sentence.

The trial Magistrate found that there was no case to answer against Bitokarina Akit. J/O Obwa (A2) and she was discharged.

The relevant file was sent to this, court by the Chief Magistrate of Lira for a possible Mevision order.

. . . 2/ . .

On perusal of the record of the proceedings in this case, I formed the view that the conviction ^q. P the- accused in both counts are bad in law because they arc rot supported by the evidence on record. The evidence on record raises strong suspeicion of poison of the complainant by tne iccusod in ^nguli. The articles which were found in the possession ex' tt.e accused after torture were not shown by evidence that they are by common repute or belief articles which are used for purpose of ditcher- ft as required by section *⁵* (2) of " witchcraft net. In tile- absence of such vital evidence, the conviction of the accused under section 5 (1) of the witchcraft Act can not be proper.

Similarly with the ch. r.,e of practising witchcraft contrary to section ³ (1) of the witchcr-.xt Act, there is no evidence to support the conviction. There is no iot<. of evidence that the accused threatened anybody with death by witchcraft or by any other super natural means. The evidence on record merely ..,nous that the accused was suspected to have poisoned the complainant in imguli. This is not practising witchcraft.

k\*hen the relevant file was sent to the DPP for his view, George Bamugemereire & State Attorney who wrote the opinion for the DPP in his letter \*ef; 6/4/2 of 2nd august ¹⁹⁹¹ was of the view that the convictions on both counts r--.ro -bad in law because, they were not supported by the evidence. Ko aid hot support th^ convictions and did not wish to be heard in the event of a Revision order being made.

For there to be a proper conviction for an offence under section 5 (1) of the witchcraft act, it must be proved beyound resonable doubt possession of that the accused was found in $\angle$ article which by common refute or belief is an article which is used in practising witchcraft. Similarly for a conviction to be properly secured for an offence under section 3 (1) of the vitaboroft act it must be shown by evidence beyond reasonable doubt but the accused practised or threatened someone with death by witchcraft or by any other supernatural means. This had not been the case in the instant case. In the circumstances the convictions can not be clieved to stand. They are quashed.

As regards the sentence, the trial Magistrate ordered that the sentence of 4 months invisionment in count 1 and that of 8 months imprisonment in count 2 should run consecutively. I am of the view that this order is improper. Indeed there are authorities which show that where a person is convicted of several offences on different counts of the some charge sheet as it was in this case, the court has power to order the sentences to run concurrently or consecutively. But ordinarily two consecutive sentences should not be ordered for two offences which arise of the same transaction. An established practice show that sentences in such circumstances are ordered to run concurrently See ( $\kappa_{\text{epublic}}$ V. Nathoni (1965) A 777).

Since the convictions from which the sentences originate are quashed, the resulting sentences are also set aside.

Order: The accused should be released forthwith if she is still in custody unless she is being held on some other lawful ground.

JUDGE. $20/8/91.$