[1994] UGHC 50

# IN THE HIGH COURT OF UGANDA

### HOLDEN. AT KAMPALA

#### C. RIMINA SESSION C.-iSE NO. 25^/95

UGANDA PROSECUTOR VERSUS YAKOB INDRIFUA I:::::::;::::::

#### BEFORE HO\*T. MR. JUSTICE G. M. OKELLO

# JUDGMENT:

The accused, Yakob Indrifua was indected for the' murder of Nicholas Kuduku contrary to section 18? of the Penal Code Act. The offence was alleged to have been committed at Ofua village in Moyo District on 15/11/91. When the charge was put to him, the accused denied the of-fence.

The prosecution called the evidence of a total of 8 witnesses. According to Alonsio Omonyi Oja PW7, in the evening of 15/11/91 at about 10.00 p.m., he was with the accused and Maiko Richard- (PW8)• They were on their way to . attend ayiyi dance within their village.

*t- '^j* ^j • Ayije is ^a kind of ^a Rtimba. dance for the y-outh. On the way they Reached a path Junction when they heard a shout,of someone who sounded drunk and had lost his way. He was calling- for help to be shown his direction. The accused had put on a yellow/Green slippers and was tj.psy. He had taken some enguli **at** the home of the witness's brother. On hearing the shout the accused cupped his hands and <blew.it> insulting the mother of the caller. When the caller reciprocated the insult, the accused rushed towards the caller threatening to beat the unknown caller. When he- / (pw?) and Maiko (PW8) failed to restrain the accused from going on the

attack of the unknown caller, the two of them (Oja. and Maiko) went . away. He proceeded to th.e dance but Maiko returned home. The accused had aireddy become a^cressiv® and threatened to beat them. . He was older and

obviously stronger than them. So they left him proceeding in the direction of the caller. The following day he (Oja) was arrested and brought to the place where they had left the accused going towards the the unknown caller. There he was shown a green/yellow slipper. He recognised it as the one which were warn by the accused the previous evening. The evidence of PW8 supports the above evidence of PW7 in all the material particulars.

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The evidence of prosecution witnesse Nos. 1-6 were admitted under section 64 of the TID. The evidence of Mrs. Sabina Okot (PWI) shows that on 16/11/91 she was going to her field in the morning hours. She was passing through the cassava field of her son William Indrifua when she found someone lying down looking dead in the cassava field. Near the body was a green/yellow slipper. She became frightened and returned home where shs informed her son of her finding. According to William Indrifua (PW3) on receipt of that report from his mother (PW2), he at once reported the matter to the area RC1 chairman Geoffrey Drani PW1). Together with the Chairman and other RC 1 executives, they proceeded to the scene. At the scene they found the person he recognised as Nicholas Kuduka a $only$ market cleaner of Ofua market. He was not dead. He was/unconscious. He had injury on the lip and blood was oozing from his nostrils. Near him<br>slippers was indeed found a green/yellow-which was indentified by Henry Magowi PW4 as that of the accused who is his closed acquitance. They took the vactim to Ofua sub-Dispensary where he was examined by a medical Assistant (PW5). The evidence Henry Magowi PW4 confirmed that he identified the slippers as that of the accused. The evidence of PW1 confirms the evidence of PW3 in all material particular³. The victim died shortly after arrival at the despensary. The evidence of the medical Assistant PW5 confirms that a victim of assault was brought to him at the Dispensary on 16/11/91 by the chairman Rc 1 of Ofua central. He examined the patient and found that he was unconscious. Had a cut wound on the right-side of the lip. loss of some teeth and a swollen chest cavity. He administered on him a

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a PPF injection. But thaf\ did not help\* The patient died shortly later. In his opinion the victim was assaulted the previous night. He later filled the treatment form which was later received in evidence and marked Exh. P1. The local RC authorities reported the matter to the police. The evidence of a police officer (PW6) shows that on instruction he visited the scene of crime and drev? a skatch plan of the scene. 'The plan was later received in evidence and marked exh. P2i The officer later proceeded to Ofna.sub. dispensary 'where the body of the deceased was shown to him. As there was no ,Doctor available, *no-* p'ost mortem examination was carried on the body. He accordingly-.- ordered it to be buried.. The accused later gave himself up to police and was arrested. He was eventually indicted.

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At his trial, the accused gave a sworn statement in his.- defence. In the statement he admitted that he struck someone in the .'evening in question at.-' about the place where the deceased. was3found" lying unconscious. He explained that he struck the person thinking\* that he was a rebel who migh have crossed from Gulu District into their village as that was common. That rebels from Gulu District often" crossed into their village and disturb people in' their village at night.' That at the material time it was night and he was going to attend'Ayije dance. He was with PW7 a^d PWfl\* When t^ey reached at Cassava field, they found someone who stood in the cassava .plantation but was closed to the 'pathr~\*W,hen he'wTib'was leading the way.came closer: to him,' the person ordered him in Acholi language ''bed. piny" meaning sit down. He thought that he had entered into ³ - • ' • the rebel ambushi When he glanced behind him, he found that PW7 and PW0 were not there. They 'had run away. So he struck the person. one: blow with his fist and ran away. As he was running he lost his slipper. Later he proceeded to the "ayije" dance. The following day, he was informed that

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he was wanted because his ^xipper was found. He proceeded to his uncle at Ad?umani. When he explained to his uncle what had happened the previous even ing and how he lost his slipper, the uncle took him to Adiumani police post and handed him over to the police. The police arrested him and he was subsequently charged.

It is the duty of the prosecution to prove the charge against an accused person beyond reasonable doubt. This is one of the canon principle of • the our law. To secure a conviction all the essential elements of/offence ' charred must be proved beyond reasonable doubt. In murder as it is in' this case, the followings are the essential elements requiring proof beyond reasonable doubtj-

- (1) that the person alleged murdered is dead. - (2) that the accused caused his death - (3) that the accused caused the death unlawfully - (^) that the accused acted with malice aforethought when he caused the death of the deceased^ 11 .r

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In the instant case, there is over whelming cogent evidence to show that the deceased Nicholas Kududa is dead though there is no medical evidence as no post mortem examination was carried on the body. Absence of medical evidence is no obstacle to proving death. It was stated in Cheya and Anor. Vs. Republic (1973) 500 that ''the fact of death and the cause of it could be established otherwise than by medical evidence".

In the instant case, the evidence of Geoffrey Drani (PV/1), and of William Indrifua PWJ shew that on 16/11/91'they carried the injured Nicholas Kuduka from the cassava field to Ofua Dispensary where he died shortly after arrival. The'evidence of Cele Julious (PW5) the medical Assistant at Ofua sub-Dispensary shows'that a patient was brought to him at the Dispensary on 16/11/91 and was introduced as Nicholas Kuduka. He

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had been a victim of assault and died soon after arrival at the Dispensary. No. 5695 D/Cpl John Oke'di (PV/6)Is evidence shows that on instructions he visited the scene of crime ?>nd later he proceeded to Ofua Dispensary where ' the body of the victim of the alleged murder case was identified to him H • • . : : 7 as that of Nicholas Kuduka and he ordered the relatives to bury it. All the above evidence were admitted under section 64 of the Trial on Indictment Decree. In his submission to me, counsel for the accused conceded *, •.. .it* to the fact of death. From the above evidence like the gentlement Assessors I find that the deceased Nicholas Kuduka is dead.

This now leads me to the question, tho caused the death of the deceased? The prosectutibn contended that it was the accused who caused the death of the deceased. For-'-this contention the prosecution relied on circumstantial evidence[1](#page-4-0) \*a's^-there' was no direct evidence to support that' claim.

For the accused it was Contended that there was no sufficient evidence to prove that the accused caused the death of the deceased. That th?re was ⁴ no medical evidence to show the cause of the deceasedfs death to.-be: traced to the accused.

<span id="page-4-0"></span>I have considered-the above argumentso^hat is circumstantial evidence? Circumstantial--evidence has been described in'Waibi Vs, Uganda (1978) HCB 218 to be the surrounding circumstances capable of proving facts in issue.- Available authorities show that to found a conviction solely on circumstatial evidence, court must be satisfied that the inculpatory facts produced by that evidence must be incompatible with the innocence of the accused and incapable di any explanation upon any other reasohable' hypothesis than that'of guilt. See Musoke V. R (1958) EA 715";~Uganda 'Vs; Leb'Mubyazita and 2 others (1972) 2 ULR31->.

In the instant case, the circumstantial evidence on which the prosecution relied on are-.-- the c >⁴ ic-icc' oi\* Oeoffrcy Dbani PW1 ' which shows that' a slipper was found near the deceased in the cassava field. That he called Henery Magnwi (PW4) to identify the slipper. Then there is the evidence

*of* (PVA) Henry Magowi which shows that he identifier! the slipper shown , who is . to him by PW1 as that of the accusedAhis acquaintance. Further there of ' - ' is the'evidence of PW7 and PW8 bothZwhom testified that at about 10 .f'O, p.m • on 15/1^/91 they were with the accused. They were on their way to attend Ayije dance.- On the way, they heard a caller who sounded druck and was seeking'direction. The accused insulted the caller. When the caller reciprocated the insult the accused was seen rushing in the direction of the voice'' threatening to beat up the caller. He had green/yellow slippers on. The 'following day PW7 was arrested and was taken to the scene where a slipper was shown to him'. He identified the slipper as that which the accused had worn the previous night. Then there was the sworn, statement\*. .■•\*\* of the accused himself. In the statement the accused admitted that he had struck some one at about the same place where the deceased was found lying unconcious. That when he was running away after striking the -person, his slipper fell and got lot.

It was contended for the accused that the above evidence did not rule' out the possibility of the\* deceased having been assaulted elsewhere by an unknown person before the accused struck a person at the same place. think that theory is for fetched in view of the above evidence. The . evidence of PW7 and PW8 show that the accused was seen rushing in the directi'dri ""df'th'e caller "threatening to beat up the caller. He refused all attempts by PW7 and PW8 to restrain him from **going- cn** the attack. He himself (Accused) admitted that he struck someone at about the same place and the deceased was found lying unconscious at the same place. He had injuries on the lips, loss of teeth and swollen chest. In my view the above evidence point irresistibly that the accused was the one who struck the~8ec~easedl

It was further submitted by counsel for the accused that without medical evidence to show the cause of death, it was difficult to say that the deceased died from the injury inflicted by the accused's blow. I admit medical evidence is the best evidence to determine the cause of death.

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But that is not the only evidence. The evidence of PW5 shows that the deceased had swollen chest cavity resulting from the assault. In these circumstances the most probable cause of the death is the injuries he sustained fr.om the assault o.n: him. It was • the'•a-e-ott-sred,"who assaulted the man.

This brines :me to: consider the question whether the accused caused the death of the deceased was unlawfully. It was contended for the prosecution that the cause of the.deceased relying bn the presumption of the law. It was held in Rv v. Gusanibizi Wesonga (19^8) 15 EACA *65 that ''in* homicide, death is presumed :to have been caused by unlawful act unless it is shown that it was caused by accident or committed in circumstances which make it exeusable". Killing in self-defence is excusable.

In this case, the accused raised the defence of self-defence. The accused told court in his sworn statement that rebels usually cross f\* . from Gulu District to their village and disturb people-.at night.- That' ' ; at the material time when someone ordered him in Acho.li language to sit down, he believed that he was in the rebels ambush and was therefore in imminent danger of death or seriously bodly harm. So he struck the person •: once and ran away. It was contended for the accused that in those circumstances the. defence, of self-defence was available to the ai'ccused.

For the prosecution it was contended that the defence was not ayaible to the accused. The prosecution relied on the evidence of PW7 and PV/8. Both. these witnesses testified that the accused was the aggressor who even . defied attempts to restrain him from going on the attack when he heard the voice of the caller. They also denied that there were Rebels . in the area that time though that at times rebels do cross from Gulu district to their village and disturb people at night.

One of the elements which must be present before the defence of self, defence can apply'is that the accused'must believe on reasonable ground that he was in imminent 'danger of death or serious bodily harrrfc. (See Uganda v.

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Mbabali (1975) HCB 226. Avaiblable authorities show that the ground for such belief may exist though they are founded on a genuine mistake of fact. See Hvlsbury La»ws of\* England 3rd Ed. Vai 10 Title Criminal Law Page 721 paragraph 1382.

In the instant case, the claim of the accused that he thought he had entered the rebel's ambush can. not be taken to be a genuine mistake of fact in view of the evidence of Alonzio Omonyi Oja PW7 and Maiko Richard PW8. They testifiecL.that when they heard the shout of a caller who sounded drunk and had lost his direction and called for help, the accused . , , /the responded by insulting the caller. Then when the caller reciprocated •/ in\_ suit, the accused rushed' into the- direction of the caller threatening to , attack. This evidence ruled out the theory, of rebels. I believe these two witnesses; PW7 and PW8. I found them credible. They gave their - -evidence forth rightly and answered questions put to them in crossexamination without any hesitation. In the circumstances I find that the defence of self defence is not available to the accused. The concocted rebel theory is therefore rejected. I find that the accused caused the death of the deceased unlawfully.

Then the next question is whether the accused had the necessary intent to cause death when he caused the death of the decased. It was contended for the prosecution in the affirmative. The learned RSA submitted that this can be inferred from the conduct of the accused immediately before this incident and from the nature of the injuries found on the deceased. The evidence of PW7 and PW8 show that the accused had insulted for no apparent reason, the unknown caller who was'seeking' for'direction. He further rushed to attack the caller also for no apparent reason. The evidence of PW5 the medical assistant who examined the deceased shows that the deceased had sustained injuries on the head and chest regions. The learned RSA submitted that those are fragile parts of the body and that whoever strikes at them must be intending to cause the death of his victim. He invited court to infer the existence of malice aforethought from the above evidence.

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For the accused, it was submitted that even if it was found that the accused caused the death of the deceased unlawfully, the killing would still not be murder having regards to the evidence that the accused had taken alcohol. Counsel cited Sesawo s/o Kermesi vs. Uganda (1979) HCB 122 asihis authority for^that proposition.

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I have had the'chance to read the above case. The gist of its decision as is relevant to this case is that where there is evidence that the parties L.d had been drinking before the act which caused death, the court must in considering whether malice aforethought was proved beyond reasonable doubt, take into account all the circumstances of the case including the fact of drinking, and to decide whether it can be safely said that the prosecution have proved beyond reasonable doubt that accused had the requisite intent to cause death at the material time. I have no quarrel with the above principles.

In the instant case, there was evidence of PW7 and PW8 that the accused had taken alcohol at the home of the brother of PW7 before the incedent. On the principle in Sesawo\*s case above, considering all the circumstances, of the case, including the fact of drinking by the accused, I am of the view that it would be unsafe to say that the prosecution has proved malice aforethought beyond reasonable doubt\* In agreement with of the assessors therefore, I find that that last ingredient has not been proved beyond reasonable doubt. The accused is therefore found guilty of manslaughter c/s 182 of the penal code act a minor and cognate offence to murder and convicted thereof.

G. M. OKELLO JUDGE.

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### Sentence

The primary principle of sentence is that it should be commensurate ■.1th carries with the offence.. Manslaughter is an offence which ?.••< a sentence of — -life imprisonment. But the court has discretion to give less- The discretion is governed by the circumstance of each case^o Mo doubt like in .many other cases I have so far dealt with here, alcohol plays a-dominant part in the course of the offence. Taking into consideration all the circumstances of the case including the period spent .by the accused .in custody while on remand before his trial, the fact of his being a first offender I consider 5 years imprisonment commensurate.with this offence. Accused is therefore sentenced to 5 years imprisonmento.

-fl G. M.... OKELLO •

JUDGE.

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