[1995] UGHC 45

THE REPUBLIC OF UGANDA

JUSTLEN

$um + 11 ur +$

r. 11115. Egonda - Netende

IN THE HIGH COURT OF UGANDA.

AT SESSION HOLDEN AT ARUA

CRIMINAL SESSION CASE NO. 84/95

<pre>UGANDA :::::::::::::::::::::::::::::::::::

**VERSUS**

LAZARO DANIEL IDUBALE ::::::::::::::::: ACCUSED.

$BEFORE: -$

$\mathbb{C}$

## JUSTICE G. M. OKELLO

## JUDGMENT

The accused Lazaro Daniel Idubale was indicted on a charge of murder contrary to sections 183 and 184 of the PCA.

The particulars of the offence alleged that Lazaro Daniel Idubale on the 3rd day of February 1994 at Owayi Village in Arua District murdered Janet Nyakuru. When the charge was put to him, the accused pleaded not guilty thus setting in issue all the essential elements in the offence charged. That meant that all the essential elements in the offence of murder had to be proved beyond reasonable doubt if a conviction was to be secured of the accused for this offence. The burden to prove those ingredients lies throughout on the prosecution. This is a cardinal principle of our law. It is derived from the principle that an accused is presumed innocent until proved guilty. It follows therefore that an accused has no duty to prove his innocence.

Elements requiring proof beyond reasonable doubt in the offence of this nature are:-

(1) That the deceased is dead.

the deceased.

- (2) that his death was unlawfully caused. - that the death was caused with malice aforethought and $(3)$ - $(4)$ that it was the accused who so caused the death of

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The prosecution called the evidence of 8 witnesses in a bid to discharge the burden cast upon it by law. The evidence of FW1-5 at a preliminary hearing under section 64 were admitted of the TID. The rest testified in court. The accused also gave evidence on $o_0$ th in his defence.

On whether the deceased Janet Nyakuru is dead, there was overwhelming evidence to prove affirmatively. FW1-3 who are local leaders and whose evidence was admitted at a preliminary hearing under section 64 of the TID is to that effect. They all told court that they received a Report of the alleged murder by the accused of the deceased using a pestle. According to them on receipt of that report they visited the scene and confirmed that the decased was indeed dead. They sew the body which was laid in house. FW3 who was the District Administration Police Constable attached to Omugo Sub County went further to say that he observed that the scalp of the deceased was destroyed and blood was oczing from the head.

PW7 and PW6 who are the father and grandfather of the deceased respectively testified that the deceased died in the early hours of 4-2-94 and that on the authority of their county chief they buried her three days later.

No medical evidence was adduced to prove the deceased's death $\mathcal{L}_k$ and its cause. Mr. Murumba the RSA explained that no post mortem examination was carried out on the body of the deceased because at the time it was difficult to secure the services of a Doctor for the purpose. I do agree with the learned Resident State Attorney when he said that available authorities indicate that though medical evidence is the best evidence to prove death and its cause, the same can still be proved to the requisite standard by evidence ather than medical (see Republic VS Cheya And Another (1973) EA 500; Uganda VS Iga (1977) HCB 216).

In the instant case therefore, the evidence of PW1-3 who saw the dead body of the deceased any the vidence of P77 and P76 who are the father and grandfather of the deceased and who saw her died and later burried her are sufficient evidence to prove the deceased's death beyond reasonable doubt. The accused also admitted the fact

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$\mathcal{I}$

*jf* deaths From the above evidence I agree with the assessors that this ingredient had been proved beyond reasonable doubt\* I thus find that the deceased is dead\*

On the unlawfulness of the causation of her death, the law presumes that in homecido cases death is always unlawful unless it was accidental or was committed in circumstances which make it excusable (Wesonga v ^R (1948) ¹⁵ EACA 65)\* In the instant case the accused raised the defence of accident\* The law makesaccident an absolute defence, Section 9(1) of the Penal Code Act absolves a person from criminal responsibility for

" an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident"•

In support of that defence, the learned counsel for the accused relied on the evidence of the accused\* According to the accused the death of the deceased was caused by accident\*

In response, Mr\* Murumba the RSA submitted that there was no grain accused's claim of accident\* The learned Resident State Attorney relied on the evidence of PVZ6 and PW7 who were eye witnesses of how the deceased met her death\*

The accused explained in his evidence that he had armed himself with the pestle (Exh P1) to scare away his brother the father of the deceased with whom he had been fighting and was stopped by their father (PV76)\* According to the accused, the father of the deceased instead came for the pestle and tried to remove it from him\* Then ^a struggle over it ensued between then\* Unfortunately in the view of the accused, the deceased who had been asleep in a house was probably awaken by their fighting noises, came out and tried to pass between them\* It was then that she was hit accidentally as they struggled over the Pestle\* PW7 admitted in cross-examination that he indeed tried to remove the Pestle from the accused but failed\* He denied that the deceased met her death as described above\*

According to PW7 who is the father of the deceased, when their father (PW6) separated them, the accused instead wont into a house where the dc-ccased was asleep, brought her out and ordered him to -hake away the deceased from the accused's homo\* The deceased had

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until her death was living with the accused. PW7 testified that before he could go nearer, he say the accused just struck the deceased on the head with the Festle and ron away. He chased him but invain. When he returned from the chase, the deceased had already died. According to PW7 he was able to see the accused struck the deceased by the aid of the moon light.

The above cvidence was supported substantially by the testimony of PW6 who is the father of the accused and of PW7. According to PW6 a fight broke out between the accused and Eesma (FW7) the father of the deceased when Ecema tried to stop the accused from quarreling with their sister. Though they had drunk several bottles of Enguli their sister. that evening, the accused still wanted more. PW6 distilled by L cestified that when he stopped the fight he went infront of his house From there he soon heard the accused colled out that Ecema should take away the deceased from the accused's home. As I had pointed out cerlier, the deceased had until her death was staying with the accused According to PW6 before long he heard a sound of besting in the direction where the accused had called. When he rushed to the scene, PW6 found that the deceased was already lying down injured but the accused was not there. He had run away. PW6 testified that the might was dark and that he could not sec.

Mr. Okwongeli attacked the evidence of PW6 and PW7 on two grounds:-

- $(1)$ that they were conflicting since PW6 claimed that it was dark while PW7 testified that there was mounlight. - $(2)$ that the demeanour of FW7 was poor and he urged me not to believe thom.

It is in my view instructive to bear in mind the principle governing resolution of discrepancies in evidence. This principle is to be found in Alfred Tafar V Uganda (1969) EACA Cr. Appeal No 167/69 It is that grave inconsistency if not satisfactorily explained may lead to the evidence being rejected Minor discrepancy also if delimerately nade to mislend court, may lead to the evidence being rejected.

In this case, the issue of lighting though important can be explained on lapse of time. The incident happened a year ago. On the demeanour of PW7, I must admit that he was very slow in answering questions put to him. But 5 think that should be considered in light $\frac{1}{5}$

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of the fact that he is a peasant with very low educational background. Infact according to him (PW7) he went to school only to P5. My own assessment is therefore that PW7 was a witness of very low intelligence. But that is far from saying that he was untruthful. On the contrary, though slow, he was never evasive in answering questions put to him. On the whole, I find him substantially truthful. I therefore believe him and PW6 and hold that the accused unlawfully struck the deceased probably to among her father who had just fought hin. I do not believe the theory of accident advanced by the accused.

$5$

This new leads me to the the question whether the deceased died from the injury inflicted on her by the accused.

Mr. Okwongeli argued for the accused that in the absence of enedical evidence to clearly and conclusively establish the cause of the deceased's death, it was not possible to rule out absolutely other possible causes. In his view, in the absence of the necessary 100; og mom medical evidence, at worst the accused should be convicted of common osseult as it was done in Uganda vs Kulabaku Night Jenuifer CSC No 61/91 but that at best he should be acquired all together.

Iam afreid the above is but afanciful argument to say the least. It can only serve academic exercise. Clearly, the Tublic would not be protected if courts were to be carried away by such arguments. It. e ill be noted that that case of Kulabaku on which the learned counsel places so much reliance clearly differs from the present case on their facts. In Kulabaku's case, the deceased was detained and while in detention was assaulted by the accused using a stick of coffee tree described to be as big as a human arm. The asscult was committed on 6-11-81. At the time of the assault, the decessed was pregnant. Later she was released and from her home she was taken to Hospital for delivery. On 31--12-9; she died in Hospital of raptured uterus. It was alleged that the accused had quesed the deceased's death by beating. But there was no medical evidence to establish that the beating administered by the accused had caused the rapture of the deceased's uterus nor that it caused any other injury. On the contrary: the medical evidence indicated that the rapture of the uterus was due to her delivery of an unusually big haby- So the Judge rightly convicted

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the accused for common assault\* In the instant case, the clear evidence of P776 the grand father of the deceased indicated that before that savage attack on her, the de ceased was we 1.1 and healthy\* But immediately after that assault, her life be cane so suddenly in grave danger that her grand father had to administer to her first aid. But according to the grandfather, even that first aid did not help. The deceased passed away ⁸ hours later. According to the testimony of PW3 it was not surprising that the deceased had died. He observed that her scalp was destroyed and blood was oozing fron the he ad •

Fron the o.bove evidence, it is only resistible to conclude that the deceased died fron that injury which the accused unlawfully inflicted on her.

The next Question to consider is therefore whether the accused had nalice aforethought when ho so caused the death of the deceased.

Malice aforethought is a. nontal element of the offence of murder. It nay be gathered fron the conduct of the accused immediately before and after the act causing death. It nay also be gathered fron the type of weapon used, the manner in which used and the part of the body on which applied. It has been held that where lethal weapon like, gun, spear or panga ore used, nalice aforethought, is readily infeared but not so readily where a. non lethal weapon like ^a stick was used. In that case other natters had to be considered also\*

It was argued for the accused that by reason of intoxication the accused could not haw '^o'zmecl the intent necessary to consititute nurder. Evidence was given by P76, PV77 and even by the accused that they all including the accused drank enguli (Patent Gin) prior to the incident. The accused put the number of bottles drunk even higher.

It was submitted for the state that since- the accused told court that he ran away because he feared that he would be assaulted by people who cane to his hone after the incident and some threatened him', he was couscious of the consequences of his act. Therefore he could have formed the necessary intent.

I fully agree that the conduct of the accused infl^eing fron

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r- ⁶ -

from his village immediately after the incident was evidence of his consciousness of the consequences of his act. But in view of that evidence of the quantity of alcohol which PH6 testified they had drunk 3 bottles among three people, it is unsafe to convict for nurder because in those circumstances it can not be said that malice afore thought was proved beyond reasonable doubt. In agreement with the Assessors therefore, I find the accused not guilty of murder and convict him of manslaughter contrary to section 182 of the Fenal Code Act.

$16 - 6 - 95$

## Sentence

$\mathcal{E}$

This offence of which the accused was convicted carries a maximum of sentence of life imprisonment. But court has discretion to impose less if the circumstances of the case warranted. The principle is that the sentence should be commensurate with the offence.

It is the practice of the court not to impose on a first offender the naximum sentence. Therefore the maximum sentence proyed for by the RSA is out since the accused is a first offender.

I shall take into account in favour of the coused these factors:-(1) first offonder

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(2) hod been on remand in custody for ¹⁸ months\* The above must be contrasted with the circunstonces in which the kilXiiS was committed\* It was senseless on ^a defenceless child of only ⁶ years old\* Use of such weapon as 1'ostlo applied on the most vulnerable part oh tho body tho head\* Alcohol should never bo used as excuse to commit serious crime\* I sentence the accused to 7 years imprisonment • I consider this appropriate in the circumstances\* So I order\*

O 4 JUDGE 16-6-95

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