[1996] UGHC 46

## THE. REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT SESSION HOLDEN

AT GULU

CRIMINAL SESSION CASE NO. 268 OF 1996 UGANDA .................................. PROSECUTOR - versus -

AT. JACKSON KOMAKSCE alias LADING) ACCUSERS A2. ODIDA CHARLES )

BEFORE; THE. . HONOURABLE MR. JUSTICE G. M. OKELI. O •

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Jackson Komakech alias Laling (A1) and Odida Charles (A2), the accused were indicted on a charge of Murder contrary to section 183 of the Penal Code Act in count ¹ and Robbery contrary to section 272 and 273 (2) of the Penal Code Act in count 2. The particulars of the offence in count alleged that Jackson Komakech alias Baling, Odida Charles and others still at large on the 6th day of May ¹⁹⁸⁷ at Opette - Lukwor Village, Chua County in Kitgum District murdered Ojoko Nelson'.

The particulars of the offence in count ² alleged that Jackson Komakech alias Laling, Odida Charles, and others still at large on the 6th day of May ¹⁹⁸⁷ at Opette - Lukwor, Chua County, in Kitgum District robbed Wilson Opwonya of ¹¹ heads of cattle, ⁵ goats, shs 100,000.= (old currency) ² pairs of trousers, ¹ skirt, ² chairs, ¹ ox-plough and at or immediately before or immediately after the said robbery threatened to use deadly weapon to wit guns, pangas and grenades on the said Wilson Opwonya:.

When the charges were read and put to them, both accused plead-r • ed not guilty. By those pleas the accuseds put in issue all the essential elements in the offences charged. That meant that each and every essential element in the offences charged had to be proved beyond reasonable doubt to secure a conviction.

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The lav; places the burden of proving those essential elements on the prosecution. An accused docs not bear the duty to prove his innocence irrespective of the defence he put forward except for a defence of insanity or where the law states so. This principle was laid down since the decision in Woolmington v DPP ( 1935) AC 462. This is still good law.

With regard to the charge of murder in count No⁴ 1, the essential elements requiring proof beyond reasonable doubt are:-

- 1) that the person alleged to have been murdered is dead. - 2) that his death was unlawfully caused. - 3) that whoever caused his death had malice aforethought. - 4) that the accused was the one who so caused the death of the deceased.

The prosecution called the evidence of three witnesses in attempt to prove the above elements.

On the question whether Ojoko Nelson is dead, it is instructive to bear in mind that the best evidence to prove death is medical evidence which spells out the fact of death and the cause thereof. That however is not by any mean the only evidence to prove death. Other cogent evidence can also prove the fact of death and the causd thereof•

Tn Republic, vs, Cheya and Another ( 1973),. BA 5.00\* the two accused were charged with murder. But at the trial no post mortem Report was produced in evidence. It was rejected on technicality and the prosecution relied on the evidence of eye witnesses to establish the fact of death and the cause of it.

It was held that in the absence of medical evidence, the fact of death and the cause of it could be proved by other cogent evidence.

In the instant case, no post mortem examination report was produced in evidence because there was no such report. No post mortem examination was carried on the body of the deceased because the

security situation then could not permit it. The prosecution relied on the evidence of three eye witnesses:-

Doreen Acen (PW 1) who was the wife of the deceased,

Damali Ayenyo (PW 2) who was the mother of the deceased and Betty Ayenyo (PW 3) who was the niece of the deceased.

They all testified that they knew the deceased. That in May 1987 they saw his dead body and took part in his burial. PW 1 and PW 2 went further to state that they observed that his skull was smashed and that the head was swollen, blood was flowing from his nostrils and that both eye balls were gorged off.

From the above evidence, Mr. Kabali, the learned Senior Resident State Attorney prosecuting the case, invited court to find that the deceased Nelson Ojoko is dead.

Mr. Olaa Counsel for the accused conceded from the above evidence that the fact of death of the deceased Ojoko Nelson was adequately proved. Like the Assessors, I find the above evidence quite cogent and I believe it. From it, I find that the prosecution have proved beyond reasonable doubt that Nelson Ojoko is dead.

As to whether the death of the deceased was unlawfully caused, it is important to bear in mind from the outset that in homicide cases, death is presumed to have been caused by unlawful act unless it is shown that it was accidental or that it was caused in circumstances which make it excusable. Death is excusable when it is caused in self defence. The above principle was laid down in the well known case of R - vs Gusambizi Wesonga (1948) 15 EACA 65.

In the instant case, the prosecution relied on the evidence of PW 1, PW 2 and PW 3 to show that the death of Ojoko Nelson was unlawfully caused. All the three witnesses testified that on an evening in May 1987, a group of Rebels stormed at their home and arrested the deceased, tied his hands behind him, and assaulted him. According to PW 1 and PW 2, the rebels arrested the deceased because he was the Secretary for Information of the Local RC 1.

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The rebels did not like RC system because it is an agent of the Govern ment in power. PW 1, PW 2 and PW 3 all testified that the attackers took the deceased with them and that the following morning the deceased was found lying dead not very far away from home.

From the above evidence, Mr. Kabali urged court to find that the killing of the deceased was unlawful. The defence Counsel concurred that from the above evidence, those who caused the death of the deceased acted unlawfully.

As I had pointed out earlier, in homicide cases, death is always presumed to have been unlawfully caused unless it was shown to have been accidental or that it was caused in circumstances which make it excusable. The above evidence do not indicate that the arrest and the assault on the deceased by his attackers were accidental nor could they be excuable. On the contrary the arrest and assault on the deceased by his attackers were unlawful. Being an executive on an RC is not out lawed. Arresting and assaulting a person for being an executive of an RC system is therefore not justifiable under the law. It is in short unlawful. It follows therefore that the death of the deceased was unlawfully caused. Like the Assessors, I find that the prosecution have proved this ingredient beyond reasonable doubt.

On whether those who caused the death of the deceased had the necessary malice aforethought, it should be noted from the outset, that, malice aforethought is a mental element which can hardly be proved by direct evidence. The general principle however, is that malice aforethought may be inferred from the surrounding circumstances of the case and of the weapon used, the manner in which it was used and the part of the body on which applied. Use of a lethol weapon like a spear, panga and a gun readily attracts an inference of the existence of malice aforethought.

In <u>Uganda -vs- Charles Bernard Ntusi and Godfrey Zereka</u>, the accuseds were indicted for murder. The deceased was alleged to have killed, the "brother of the accused by witchcraft. Before his brother died, the accused had entreated the deceased not to kill him but the deceased refused. The brother died when he was mad. Then after sometimes, the mother of the accused became similarly sick. The deceased found the accused in a banana plantation and the latter pleaded with him not to kill his mother. The deceased refused. Then the accused got angry and cut the deceased with a panga on the head.

It was held that from the nature of injuries inflicted, the ⁷ type of weapon used (lethol) and the vulnerable part of the body on which applied (head) inference of malice aforethought could readily flow subject to provocation.

In Yoweri Bamulira -vs-.^R (1.956) ²³ EACA .501, the accused assaul ted the deceased with a stick whose diameter varied between one and one and half inches and was weighing one and half pound\*

It was held that malice aforethought could not readily be infered from the use of a non lethol weapon.

The general principle applicable in deciding whether malice aforethought has been established was laid down in ^R -vs- Tubire (1945) ¹² . EACA ⁶³. Where it was held that in deciding whether malice aforethought has been established, court must took at the surrounding circumstances of each particular case. These incluse the nature of the injuries inflicted on the deceased, the weapon used, part of the body on which applied and also the conduct of the accused imme-. diately after the incident. This principle was followed in Uganda -vs- Peter Kato, and ³ others (1976) HOB 204 at .208\*

In the instant case, the evidence of PW ¹ and PW ² indicated that the attackers arrested the deceased because he was an RC Secretary for information for their Local RC I. The Rebels at that time did not want RC system because they thought the RC officials were agents of the Government which they were fighting-. According to PW ¹ and PW 2, the attackers tied the deceased's hands behind him,

assaulted him and took him away. The following morning, ho th witnesses said, the deceased was found dead. Both PW ¹ and PW ² further told court that they went to where the hody of the deceased was found lying. Prom there, they observed that'the head was smashed and both eye balls were gorged off.

Prom the above evidence Mr. Kabali urged court to find that those who caused the death of deceased had the necessary malice aforethought. Mr. Olaa Counsel for the accused concurred. Prom the nature of the injuries found inflicted on the deceased, (the head being a vulnerable part of the body was smashed and both eye balls were gorged off), malice aforethought could readily flovz in accordance with the principle in Tubire above. I therefore find that those who so caused the death of the deceased had the necessary malice aforethought. The prosecution have thus proved this ingredient beyond reasonable doubt.

As regards the crucial question whether it was the accuseds who so caused the death of the deceased, the prosecution contended that, that was so. Por that contention, the prosecution relied on the evidence of two identifying witnesses who were Doreen Acen PW ¹ and Damali Ayenyo PW 2.

The accused on their part set up a defence of alibi. That they were not at the scene of crime. Komakec Baling (Al) claimed that he was at Paluga suffering from gunea worms. Odida A2 on the other hand told court that he was in Kampala with Ms brother.

The law regarding the defence of alibi is fairly clear. It is that the duty to destroy an alibi set by an accused lies on the prosecution by leading evidence which places the accused squarely at the scene of crime.

In the instant case, the prosecution relied on the evidence of identification of Doreen Acen (PW 1) and Damali Ayenyo (PW 2) to prove that the accused were part of the rebel that caused 'the death

of the deceased and took away livestock of the deceased's father Wilson Opwonya. Both vzitnesses testified that the incident took place between 7\*00 and 7.30 p.m. when the only light available was a bright moon light. According to these witnesses, when the group of rebels attacked their home and arrested the deceased, they recognised the two accuseds among the group. They testified that they had known the two accuseds before from the accuseds childhood as children of their village. Doreen Aeon (PW 1)', testified further that they were seated only two meters away from where the two accuseds and other rebels arrested and tied the deceased. She further told court that during that period they had opportunity to observe the accuseds very well. According to PW 1, the operation took a total duration of 1£ hours. She explained that when the rebels first arrived and arrested the deceased, they took one hour. Then they wont away with the deceased to lead them to the homes of the local RC I Chairman and Secretary for finance. After two hours, the rebels again returned to their home with the deceased still tied. Doreen Acen told court that on their return, the rebels demanded for money from tho deceased and eventually took away ¹¹ heads of cattle and ⁷ goats belonging to Wilson Opwonya, father of the deceased from the kraal. She testified that when they returned, the rebels took another ³⁰ minutes'. According to PW 1, during that period she saw the two accuseds still among the group. Doreen Acen testified that the two accused were among tho eight rebels who were clad in army uniform and were armed with guns.

Damali Ayenyo (PW 2) confirmed that a group of rebels attacked their home at between ⁷ and 7.30 p.m. in 1987- She further confirmed that the light available at the time was only a bright moon light. She testified that she recognised the two accuseds among the group because she had known them from their childhood as children of that village. She even knew the parents of both accuseds. According to Damali Ayenyo, among the group of about twenty rebels, only A1 was clad in an army uniform and armed with a gun. The rest who included

A2 wore not. She did not see what A2 was having in his hands. PW ² further told court that the other rebels surrounded the homestead. Damali Aycnyo told court that she even asked A1 who appeared the leader of the group why he was doing that to the people he knew. According to Damali, that question angered A1 who raised his hand to strike her a blow but that she ducked and dodged the blow.

From the above, evidence, Mr. Kabali invited no to find that the two accuseds were accurately identified at the scene of crime. He pointed out that in deciding whether the accuseds were accurately identified court should closely examine the circumstances under which the identification was made, the length of time the accuseds had been under observation of the witnesses, the distance the accuseds had been from the witnesses, the amount of light that was available and 'the familiarity of the accuseds to the witnesses. According to the learned Counsel, the above factors go to the quality of identification which makes it safer for court to rely on to support ^a conviction. He cited Abdallali Nabudere and o.ifcers. -vs- Uganda (1979) HOB 77\*

Mr. Olaa Counsel for the accused however, submitted that the disparities in the evidence of PW ¹ and PW ² clearly indicated that the state of confusion and fear that characterised the occasion made it difficult for the two witnesses to properly identify their attackers. That the two accused were thus not accurately identified.

I agree with the above principle in Abdallah Mabudere and others vs Uganda that court must closely examined the circumstances under which the identification was made to ascertain the quality of identification in order to determine whether that was an identification upon which it could safely base ^a conviction. While the factors to be considered may include things like the longfti of time the witnesses had the accused under observation, the distance the witnesses were from the accused, the amount of lights available at the time, whether visibility from where the witnesses wore, had not been

obstructed in any way, and the familiarity of the accused to the witnesses, sight should not be lost of whether or not there was confusion and fear that might affect the quality of identification making it unsafe to base a conviction on.

In the instant case, both witnesses (PW 1 and PW 2) admitted that the only lights available then was a bright moon light, that they were both familiar to the two accused from the accuseds' childhood because the accused were children of the village. PW 1 added that they had the accuseds under observation for a total of $1\frac{1}{2}$ hours from a distance of hardly two meters. These appear to have been exaggerated. But from the general thrust of the evidence, it is clear that there was confusion and fear upon the witnesses. Both PW 1 and PW 2 testified that they could not make alarm because they feared.

In my view, that fear must have had a bearing on the quality of the evidence given by these two witnesses. There were discretpancies in their evidence as to the discription of the dresses the accuseds wore and on whether or not they were armed. Yet they were only about two meters from them and had observed them in that position for a total of $1\frac{1}{2}$ hours. PW 1 told court that both A1 and A2 were clad in army uniform and were each arned with a gun. But PW 2 testified that only A1 was clad in army uniform and was armed with a gun. The rest who included A2 were in civilian dresses. She added that she did not see what A2 had in his hands. PW 3 who was at the material time a child of 7 years, told court that some of the attackers were armed with guns, others with pangas, clubs and spears. Yet the key witnesses like PW 1 and PW 2 did not mention these other weapon. If the description of the clothes worn by the accuseds could have been forgotten by the witnesses because of lapse of time, the issue whether or not they were armed could not because that was very central. In those circumstances I am inclined to agree that the evidence of identification of these accused persons by the two witnesses are not satisfactory. They

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must have been marred "by fear. It would therefore he unsafe to base ^a conviction on it. For that reason, I agree with the Assessors that the accusods had not been proved beyond reasonable doubt to have participated in the commission of the offence.

Similarly for the charge of Aggravated Robbery contrary to section 272 and 273 ( 2) of the Penal Code in count 2, the same reason for wiiich the evidence of identification was rejected also applied because in that too, the prosecution relied on the same evidence of identification by the same witnesses.. The two offences arose from the same facts\*' Accordingly both accuseds arc found not guilty of the offences in both counts. They are therefore acquitted of them both. They axe thus ordered to be set free forthwith unless being held on some other \ lawful gound. In this regard I am in agreement with both Assesses.

G. M. OKELLO Judge

12th August, 1996

Judgement read in open court in the presence of: /

- both accuseds - Mr. Olaa for Accuseds - Mr. Kabali for State - Mr. Oyaru Court Clerk

G. M. OKELLO Judge 12th August, 1996