[1992] UGHC 46

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

Mr Institution F. M. S. Engonda - Nikude

CRIMINAL SESSION CASE NO: 1040F 1990 cusable from each,

The Hon NW

Senten ce UGANDA::::::::::::::::::::::::::::::::::: - VERSUS -FREDERIKO NDOBIYA::::::::::::::::::::::::::::ACCUSED. BEFORE: THE HONOURABLE MR. JUSTICE I MUKANZA.

JUDGMENT.

The accused Frederiko Ndobia was indicted of murder Contrary to Sections 183 & 184 of the Penal Code Act. The Allegations being that on the 21st day of June, 1987 at a place called Katolhu in Kasese District he murdered one Antonio Muhindo. The accused pleaded not guily to the indictment.

The case for the projecution was simply as follows: The accused and the deceased were neighbours. Their homes were separated by a distance of about 40 metres and both were married people. The wife of the deceased was known as Olivia Birra (PW6). The two families had cordial relations. They were friendly. Prior to the incident the accused and his wife had some domestic quarrel which ended up into a fight. The accused's wife escaped and run to the deceased's home where she spent night. The accused did not follow her at the deseased's home.

$\alpha$ 0n the following morning which was 21/6/87 the wife returned to the Accused's home without any problem. However on the same day at around $8.00$ p.m the couple fought once more. The wife once again as she had done before ran to the deseased's home for safety. She complained of having been assaulted by the accused. Immediately she fled to the deceased's house the accused followed her up right into the deceased's house. As soon as the wife saw the accused following her she escaped through the back door. The deceased's house had two exits, the front and back doors and the house had only 2 rooms. According to PW6 the accused came by. the front door. He found PW6 in the sitting room having her supper. The deceased was resting in the sleeping room. He did not have supper because he had eaten elsewhere and was feeling some how feverrish.x

$\cdot \cdot \cdot \cdot \cdot /2$ .

The accuse enquired from PW6 the whereabouts of his wife and she replied .him that immediately his wife saw him approach she escaped through the back door and fled. According to PW6 the accused appeared annoyed. He kicked the food which PW6 was eating (her supper) and also gave her about five slaps\* As a result PW6 appealed to her husband who was resting/slepping in the next room for assistance\* The deceased responded. He woke up and came • . . to the sitting room where PW6 and the accused were. The deceased according, to PW6 got hold of the accused and pushed him outside. Thereafter the accused rushed to his home and returned armed with a spear while shouting that he -wanted the owner of the house outside. The deceased andPW6 were still in the sitting room when accused kicked the front door open and confronted the deceased. The latter stood and enquired why the accused had returned at such late hours of the night when hehad promised to enter into their matter on the following day. Without uttering a single word the accused speared the deceased • once in the stomach/Diasphram and abandoned the spear at the scene of crime andfled. The deceased died instanly. **Aeeording** to PW6 she was in the house together with the **deteased** and two small children aged ² years respectively. There was a tadoba light on throughout the incident in the house. And according to her there was moonlight outside.

('

- ² -

was a neighbour to both the accused and the deceased. While at her place she'heard some cries at the deceased's home. She answered to the cries only to find that the deceased had been speared to death and PW6 was-trying to tie the deceased's stomach whose intestines had protruded. PW6 reported to her that it was Ndobia who had killed her husband.

.--s the F/\*? Chrir'r-' • th.. 0; infrrr-3

PW4 was the Chairman RC2 of the area. On information received he proceeded to the scene where he viewed the body of the deceased and a blood stained spear which he handed over to PW3Wafula a Police Officer at the scene. Because of distance and transport problem the body could not be taken to Kasese/FortPottal for Postmortem.

*- ⁵ -*

The evidence of PW1 and P'V2 was admitted at the preliminary hearing under S. ⁶⁴ of the trial on indictment decree. PW1 Dr. Gahafa examined the accused who he found aged 33 years and was mentally normal whereas DAIP Birungi re-arrested the accused person.

In his unsworn statement the accused stated that he is a cultivator of Rutoke village nearLake George at Kah-endero Fishing village, Muhokya Sub County. The Climate for growing cotton at Muhokya was not good. He therefore migrated to Katolhu village where he learnt there were favourable conditions for growing- e-ot-ton. - He was-given ...two acres therewitha vi-ew to growing cotton, He-lived with a man called Nyambehendwa to begin' with- but--later he built his own' shelter. He was- taken before the PCs where he gave all his credentials^. He grew cotton and later •- harvested. He cut down the-cofeton stems after which ' despatched his wife home later- on followed her.

Before his departure his relationship with the people around was good. When back at home and while proceeding to Kahendero shore he met the Chairman PC2 known as Gampingi who told him that he had commited a crime at K^t£i.° (Katolhu),. He thought he was wahted therein ^- • connection with the. cotton stems.which he had finished j. cutting. One Gampingi ordered soldiers who arrested him . : • •L-.t ir.u? 3r in I... . -r- '

'• \*"• • " \*hc-/'i; ' •' \* k-:nr-n someone.

......................... /4

and detained him in Prison. ••\*^Jhile. in Prison that was when he received the allegations that he had killed someone. Later some Policemen from Katolhu came and re-arrasted him and escorted him to Kasese Police Station. He denied having murdered Antonio Muhindo.

In criminal case the prosecution has the burden to prove the guilty of the accused person beyond reasonable doubt. As I warned the gentlemen assessors this burden does not shift except in a few exception the instant case not being one of those exceptions. See Woolmington vs DPP 1935 at P.462. See also Sulaiman Katusabe vs. Uganda Criminal AppealNo 7/1991SCUat Kongo (Unreported).

With the burden of proof squarely "resting with the accused throughout the trial, the prosecution has to adduce evidence to prove the following ingredients of the offence. That the victim is dead, that death was due to unlawful act. That the unlawful act causing death was caused with malice ^a forethought. And finally that the accused caused death with the requisite malice aforethought.

On the first ingredient whether the victim Antonio Muhindo is dead we have record on the evidence of PWJ to PW6 The testmonies of these witnesses had not in any way been challenged by the defence. Therefore the fact that Antonio Muhindo is dead is. no longer in issue..

As to whether the death of the deeeased was due to unlawful act. The law applicable\*'here is that homicide unless accidental is always unlawful except iⁿ circumstances making . It;, excusable. See ^Busambuzi Wesonfea Ld yg ^R 1948 ¹⁵ EACA P. 6^. The circumustances under which this homicide was carried out did not make it look excusable

................ /5

- 4. -

Homicide is said to be excusable when committed in self defence and also ofcourse when it is accidental. See Archbold Criminal Proceedings evidence and Practice 38th Edition paragraph 2496 Pages 923 - •

As to the cause of death there was no Medical report or call it postmortem report as to the cause of death PW6 and PV/4 testified to the effect that because of distance and lack of funds the body could not be brought to Fort Portal for Medical examination. There was also evidence to the effect there were no faculties at Katelhu to have had the body examined! ;And it appears also according to PV/4 & PW3 there was no dostor at Kasese to carry out the postmortem examination but there is ^a propostion of the lav/ to the effect that death and the cause of it could be established otherwise than by Medical evidence. See Republic vs. Cheeya & Anoor '1993 300. Also see Kimweri Vs. Republic 1968 EA P, 4^2. Uganda vs. Yosefu Kyabanda

1972 24 LR P. 19, Batala vs. Uganda 1974 HCB P, 219.

In the instant case there was evidence from PV/6 who said the deceased was stabbed in the stomach/diaphram with a spear and died almost immediately. PW3» PW4 & PW3 came to the scene and viewed the body. All testified to the effect that the deceased had a spear-wond at the stomach. PW5 testified to the effect that when she came to 'answer the cries of PW6 she found the latter tying the -•'-•-•stomach or the intestines with a kitengye where intestines had come ^ut. I have nd hesitation in finding that the deceased bled to death and died as a result of the spear wound inflicted on his stomach/diaphram. I do not therefore subscribe to the submission by Mr. Kagaba .......... ./6 ...

- ⁵ -

**ir**

learnt Counsel appering for the prosecution that lack of a postmortem report was a lacuno in the prosecution case\*

- 6 - ^a

This now bring to the last ingredient of this case who caused the death of the deceased and whether the death was caused with malice aforethought.

In her testimony PW6 who was the sole eye witness to this incident testified that she saw the accused spear her husband to death in the night of 21/6/8?. She explained how the accused had quarrelldd with his wife prior to the incident, and she further explained how the accused came following his wife on the second occassion and how he rushed back home and returned with a spear which he abandoned at the scene after stabing Antinio Muhindo to death.

The accused in his unsworn-statement distanced himself from the scene of crime.. He explained that he came to Katolhu village but lived somewhere eLse and that was where he carried out his task of gfowijig cotton and when he had harvested the same he went back at Kashse fishing village. In essence the accused was putting jip the defence of alibi. It is It is trite lav/ that an accused who puts forward an alibi as a defence to "criminal charge does not-thereby assum the burden to prove it but the burden rest solely on the prosecution to destroy the alibi by placing the accused to the scene of crime. See Leonard Ariseth VR 1963 EA 206, Sekj.toleko vs. Uganda 1967 EA 331. RV Johnson 1963 AER P. 967. The question here is has the prosecution discharged that burden. It must he recalled that PV/6 Olivia was the sole eye witness to the killing of her husband. I cautioned the gentlemen assessors the danger of acting on the evidence of sole identification ^witness. in the guide lines in Rorias case 19 ^E 383, Abdala Bin Jondo & ^Anor

/7 ^R 195.3 20 EACA P.66 I found that the accused person and PW6 were known to each other. PW6 testified that she had known the accused for one year. They were neighbours and their homes were separated by mere ⁴⁰ metres and they used• to;- visit each other. They were friendly. Besideds that though the incident took place at night PV/6 was consistent that she. had the tadoba light on when' the accused entered their house while pursuing his wife and a'Tso when he returned for the second time when he speared the deceased to death. It is also evident that this incident took ^a long duration. I say so because when the accused came to tjiat house for the first time ^exchanged views with PV/6-. He slipped\* her, kicked her''food until the latter appealed to the deceased who came and pushed the intruder outside. In addition ^I can.lose sight of the fact that the accused returned for the second time at the same place while the tadoba light was still on. The sum total of all this is that th.er.f. were conditions

favourable fcr proper identification of the accused as the man who speared the deceased to death. The alibi by the accused person therefore that he was elsewhere at the time he was stated to have killed '■"the deceased has been destroyed and or disproved by the testimony of'PW6\*whO managed to place the accused at the scene of crime. I do believe Pk/6 as having told this Court the truth. She was consistent in her testimony despite the fact that this incident almost happened some four years ago. She was in no way shaken in the lengthy and vigorous cross examination by the learned counsel appering for the accused.

I do not therefore agree with Mr. Kagaba that ^c u: - th./?a wa ^e : .<1 ¹ . . • t-ie

f '■ ^C ' " .... u.. ^&gt;

because there was cassava plantation between the deceased and accused's homes therefore PM6 could not identify the accused. The incident took place in the house of the deceased and not in the cassava plantation therefore the deceased was properly identified by PW6 in their house (house of PW6 & the deceased's) as opposed to the cassava plantation. I am not also agreeable with the submission of Mr. Kagaba that the tadoba light was not enou, b to enable PW6 to recognise their assailant. The light was enough and the incident was on for a long time to rule cut any mistake identity of the culprit. In the end I reject the accused's story as being false. My findings therefore is that it was the accused who caused the death of the deceased by stabbing him on the stomach with a spear.

As to whether the killing was with malice aforethought the general principle law is that malice aforethought flows very readly from the mature of injuries inflicted on the victim. The type pf weapon and the vulnerable part of the body on which it is used. However this is not always conclusive evidence since each case has to be decided on its own fact. See RV Tubere Spochen 1945 12 E/CA.

## Uganda vs. Charles Benard Ntusi & Another.......

In the instant case the deceased was speafed on the stomach which is very delicate and vulnerable part of the body and lethal weapon a spear was used in the circumstances that is evidence of malice aforethought. The accused denied all that. He stated that he was elsewhwere on the date of the incident. I had already found that his alibi was destroyed by the testimony of $PW6$ whom $...$ ....../9

$8 -$

I believed as having told this court the truth.

- 9 -

Lastly it is pertinent at this time to consider whether there are any defences available to the accused according to the evidence on record. PW6 testified that in the night of the incident the accused followed his wife to the deceased's house On enquiries he was told by PW6 that his wife had escaped through the back door. The accused got annoyed kicked the food and slapped PW6.. The deceased came to the rescue of his wife got hold of the accused and pushed him outside. According to PV/6 the accused rushed to his house and immediately returned and speared the deceased once on the stomach and the latter passed away. My finding is that the accused believed his wife was being given senctuary in the deceased's house and was upset when he was pushed outside. The killing of the deceased took place therefore in the heat of passion after sudden provocation and before there was time to cool off. See Section 187 of the Penal Cede. See also RV Hussein s/o Muhammed 19^2 9 BACA-and Juma Mafasi s/o Wabimina. See also • Digest of East Africa, Criminal case Lav/ 1897 - 195^ Festo Shirabu s/o Musungu VR 195^ Vol\* This killing of course was unlawfiilbut lacked the requisite malice aforethought.

With regard to inconsitances and discrepances in the prosecutions case wherever these occurred were not major one but were minor ones and they did not lead to'deliberate untruthfulness therefore the prosecutions case should not be rejected on that ground alone. See Raphael Alphonse and Tajir'^s case E<AC^a Cr. App. No 167/169

............./10

In the end in agreement with the gentlemen assessors I find'.that the prosecution has failed to prove beyond reasonable doubt that the accused murdered Antonio Muhindo in contravention of Sections 185.& \*184 of the Penal Cede. Consequently the accused is acquitted of that.offence forthwith.. However in agreement with the gentlemen assessors I find that the prosecution has proved beyond reasonable doubt that the accused commited the lesser offence of mansluaghtcr Contrary to Sections 182 & 185 of the Penal Code Act. I found the accused guilty of that offence and convict him accordingly. • ■. • • \* 'i

In a summary, accused is found guilty of the offence of manslaughter Contrary to Sections 182 & 185 of the Penal Code and I convict him accordingly.

> ( I. MUKANZA ) JUDGE. 25/8/92

25/8/92: Accused before Court.

i •

Mr. Bireije for the prosecution present, Mr. Kagaba on state brief appearing for the accused'person present.-

Assessors¹ Miss. Nyangoma'absent and Mr Alisen Kiiza present.

Court Judgment read and explained. Mr. Bireije: This Court has rightly found the accused guilty of manslaughter. We do not have previous record of the convicted person. He has been on romand since 1988. He first appeared in Court in December,*28*th 1989\* The accused has been on remand for ²1/ years. He has been convicted of felony which carries life imprisonment«

............./11

In passing sentence consider the misery caused on this unfortunate family of the deceased. Time and again defence Counsel say the accused has a family so •»is':the deceased. The deceased was still ^a young He had ^a lot to contribute to this country. Further consider the fact that the accused was agressor-. The deceased had gone to bed in house. Also consider the fact that the deceased wa not armed at all\* The convict / accused was \a tresspasser. Apparently the deceased was not involved in the domestic quarrel with his wife. -The accused was an innocent person when he met his death\* The accused should not have extended his domestic quarrels to other families\* The deceased's family doing senctuary to the accused's wife was done in good faith. The accused person deserves ^a deterrent person. There were a lot of avenue available to the accused person inorder to redress his griecance. This Court has to assist the Society by punishing law breakers like the accused person. It is onthis premises ^a heavy punishment be imposed on the accused as deterrent punishment to other possible offenders^

•' Mr. Kagaba: The convicted person has been on remand for about 2/2 years. This was an unfortunate case the killing was done to a friend and a close neighbour.- And for that reason my client is extremely sorry. Muhindo become amatyr because of the love affair between the accused and his wife.

I pray that you do not pass a deterrent punishment because this judgment is not going on the radio. The sentence would only effect the accused here and would not deter others. I pray for the lenient sentence. He is ^a simple minded person. He thought he could exeisc- his eights ................/12

right from his house up to the deceased's ho-?e. It;is this mistaken brief\*' which surrounds this act.

The- 'accused thought when his wife vanished he remained hidden in. the deceased's house. I pray., that you exercise lenience. He is ^a young man aged ⁴² years.

## RE^ON FOR THE SENTENCE

I have listened very attentively to the submissions of the learned Counsels in this case and I have *given* nnxeious consideration to their submissions. However I made the 'following observation. The accused is ^a first offender. He has been on remand for about ²1/z years. He is a young man aged about ⁴² years. I am however of the firm view that he committed ^a very serious offence which carries the maximum sentence of life imprisonment. There were avenues open to the accused person and could have definately avoided this incident. At least ^a life was taken away.

## SENTENCE.

The accused is sentenced to ⁷ years Imprisonment. R// Explained.

( I. MUKANZA ) JUDGE. 25/3/92.

12-