[1990] UGHC 26

THE HONOURABLE MR. JUSTICE A. R. OLUADE

### ^KB\_Rr;J\_V3^IC\_0F\_yGAnpA

IN THE HIGH COURT OF UGaNDA aT FORT PORTAL CRIMINAL SESSION. CASE NO. \*\*5/1989 '

#### UGANDA : PROSECUTOR

### VERSUS

GOOD POx^TINANTO I:::::::::::::::::::: :ACCUSED

# JUDGMENT

## BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

. The.accused in this case is .called Good Jortinanto. Originally was indicted of Murder contrary to section 183 of the Penal Code. The charge was reduced tothat of Manslaughter contrary to.section ¹ ⁸² of the Penal Code. He pleaded not guilty to the reduced charge. Evidence was then led to prove the new charge.

The particulars of-the or fence were that in March 1982 at Bujubuli village in Kabarole District the accused unlawfully caused the death of one Balyesiima w/o Byaruhanga but without the intention to do so.

i

The prosecution called three witnesses in order to establish its case. The prosecution 's case was that in the year 1962 UMLA soldiers from Kabamba army barracks used to terrorise villages around. They used to rob and even killed the residents of those villages. Bujubuli tillage was among the areas terrorised by the soldiers^ ^P'72, Ph3, the accused and the deceased because of the insecurity in-their area move far deeper in the bush in order to avoid being.killed by the soldiers. . The soldiers had chased them away.

According to Pw2 & PWJ families had to put up temporary huts in the bush where they settled and waited for situation to settle down. pb2 and PUJ ±>ut up their temporary shelters in the bush A but they were not togeth r. The deceased, her husband called Byaruhanga plus the accused who was a brother to Byaruhanga and brother in law of the deceased stayed together with their families.

Sometime at night around 10.00 p.m. on the date of the incident PW2 and PWJ heard gunshots coming from the directives PW2 and P./J had migrated from. And at the same time they heard an alarm coming from the direction of the deceased's camp • 1-WJ rushed to answer the wound alcirm where by he found that the deceased had a spear/'. near the breast. The lungs could be seen as she was breathing. found her still alive but was in critical condition. According to ^P'»j5

the deceased was not. stable in her talk1' - P«.'³ talked to her and the deceased informed her that she had been speared by ''Good" her brother in law but that the accused had wounded her accidently.

Shortly afterward according to Pl«3? PW2 also came to the scene. PV;2 in his testimony also had the occassion to talk to the deceased. The later informed him that she had been speared by Good. There was no Hospital or Dispensary around since they were in the bush and it was at night\* PV.-3 testified that from midnight till 10.00 a.m. on the following morning the deceased was in a comma and efforts to take her for treatment proved futile. The deceased passed away. She was eight months pregnant. Matters were reported to the police who ordered for burial. The accused hud disappeared.

. PV/1 was a police officer attached to Fort l-ortal police Station. On 29th July, 1986 he received the spear and was also handed over the accused by a Detective Sergent Katungwensi from Kyegegwa police station.

In his unsworn statement the accused explained how the deceased got the spear wound. lie stated that in the confusion that followed the gunshots from the village they had abandoned they tried to run away. He had a spear which he stuck in the ground outside their hut. He continued that he had dogs tied on a rope. The dogs pulled him in an effort to go where the gun shots were coming from.

............................. /3

As.a result -the dogs stumbled over the spear which fell on the.ground. The deceased who came running bagged herself on the spear.

As I directed the assessor the burden of proof in criminal cases lies on the prosecutions throughout to prove the guilt.of the accused person beyond reasonable doubt. That burden does not shift except in a few cases the present case not being one of them-\ The. accused has no burden to prove his innocence Woolmington vs DPP 1933 AC F. 46g.

to The admissibility of a statement by a person as/the cause of his death //^ePen'c^%n section 30 of the Evidence Act Cap 43-

The only direct evidence against the accused who stand charged with the offence of Manslaughter is the dying declaration made to both pl?3 and PW2 ^I the deceased woman. The rest of the evidence'if any is purely circumstantial. P'. V3 talked to the deceased' and the - latter informed him that the accused had speared her accidently whereas she told PV/2 shortly afterwards that in fact it was the accused who speared hei; Shortly afterwards the deceased died.

Tnere were two versions in the evidence'of the 2 pro.secution witnesses. F. V2 said the deceased told him it was the accused who had speared her and in the same breath the deceased informed PW3 that the accused speared her accidently.

Under section ⁹ of the Penal Code a person.is'not criminally responsible for an act or omission which occur's independatly of the exercise of his will or for an event which occurs by accident unless the intent to cause a particular result is -expressly declared to be an element of the offence constituted in whole or part by an act or omission and the result intended to be caused by an act or ommission is immaterial.

In the instant case the intent is not an. .element of the offence of manslaughter contrary to section ¹ 82 of the penal code. The dying declaration therefore fully exonerated the accused in that the deceased was speared accidently.

.............................. A

Although that statement by the deceased was not on oath and was made in the presence of the accused is admissible in evidence either against or for the $v_{1-1}$ S accused provided that at the time when the statement/ made the person making it had unqualified belief a without hope that he was about to die almost immediately. RVs Jenkins 1869 LR ICCR. 187 at FP 192, 193 RVs Staiffe 18361 Mood & 551 Rev Coleridge J. See also Halsbury Laws of England 10th Ed. P. 723 Page 723 Para 1389.

According to PW3 the deceased was in a critical condition, she had a spear wound near the breast and the lungs could be seen she made the statement in hopless expection of death.

In addition to what has been explained above the evidence of PW2 and FW3 to whom the dying declarations were made contradicted each other. These contradictions and or inconsistences were of a serious nature and go the the route of the case. They made it impossible for this court to decide whether the evidence of the prosecution is capable of being believed See Uganda vs Bikamikire Cr. Case No. 63/72, Uganda vs Dusmani Ndyaka Sabuni HMB Vol. 13 1981 P1. t and other vs Uganda 1978 HCB 181. It is the considered opinion of the court that evidence was lacking to persuade me to accept the stories given by both PW2 and PW3 as being the truth. to pr d'ant

The learned State Attorney in his submission asked me to consider the conduct of the accused because immediately after the incident the latter disappeared. The accused explained why he went away. They were told to go to a place called Apunyo after the incident and other people went to other villager there Then in 1983 refugees were sent in on their land. He returned $\Lambda$ . and was arrested in 1986. Evidence is lacking to show who arrested the accused and when $1\text{-}\texttt{W1}$ D/C Cguttu received the accused and the spear from Detective/ constable Katungwensi of Kyegegwa Folice Station. Katungwensi was not called as a witness to explain the circumstances surrounding the arrest of the accused person and the receipt of the exhibit the spear. PW2 and PW3 simply testified that the accused disapreared after the incident. There was no evidence to show that the accused was looked for and could not be found. That was a lacuna in the prosecutions's case. In the absence of such evidence his story that they shifted to a place called Apunyo

$\mathcal{M} = \mathcal{M} \mathcal{M} = \mathcal{M}$

Immediately after the incident and returned to their original home when the refugees had been settled there has to be accepted as the truth donby after all the burden to prove the charge beyond reasonable rested on the the prosecution. The accused has no burden to prove his innocence.

$\overline{5}$

From what has been explained above I endorse the opinion of the first assessor that the accused be acquitted of the charge and I reject that/the second assessor that accused be found guilty and convicted as charged. I find that the prosenution has failed to prove beyond rereasonable doubt that the accused unlawfully caused the death of the deceased. I find the accused not guilty of the offence of Manslaughter contrary to section 182 of the Penal Code Act and I acquit him of the charge forthwith and unless the accused is being held on another charge 1 order for his immediate release.

Juliqi ( I. MUKANZA ) J U D G

$7/8/90$

$7/8/90:$ Accused present.

> Bireij: Resident State Attorney - Present. $Mr.$ Mr. Kagaba counsel appearing for the accused present.

1st Assessor Mr. Isingoma Present. Assessors:

2nd Assessor Mr. Mu_Cenyi Present.

Court:

Judgment is read and signed.

Sgd: $d_{4M} \leftarrow 20$ ( I. MUKANZA JUDGE $7/8/90$