[1991] UGHC 33

| IN | THE<br>HIGH | | COURT<br>'OF | UGANDA | | HOLDEN | AT | ARUA | |----|-------------|---------|--------------|---------|-----------|---------|---------|------| | | CRIMINAL | | SESSION | 'CASE | NO.<br>31 | OF | 1990 | | | | UGANDA | VS<br>- | NOAH<br>- | ASEA | | ACCUSED | | | | | BEFORE | HON. | MR, | JUSTICE | G,<br>M, | | OKELLO. | |

## ^J ^U ^D ^G ^M KN ^T

Noah Asea, h^r^inaft\*\*r referred to as-the accused, was indicted for murder of-his wife Susan Awoto contrary \*o Section 1&5\*of the Penal Code Act? mhe particulars of offence allege \*hat-on the 3rd day of Septnrnbor 1988 at Ajia village in arua District the accused murdered-Susan Awo-'-o.

\* m^o constitute <-hp offence of murder, ^ho following ingredients must be presen\*^&lt; mh«y am:-

- (1) that 4-hp person alleged to have been murdered is dead. - (2) that \*he death of \*hat person was unlawfully caused by the\_accused. - (3) that the accused was actuated with malice aforethought when he unlawfully crused \*he death of \*hat person.

\* ^0 secure a conviction in any Criminal offence the prosecution must prove beyond-reasonable doubt-all ^ho ingredients of thn-offence charged, In-\*he ins^n\* case \*e secure a conviction for the murder charged, -prosecution must beyond reasonable ddub\* all the above ingredients, mhe accused does not bear any duty 4.0 prove his innocence.

- On whether or not Susan . Awoto is dead, prosrcu\*ion-con- ten^-s that she is dead and \*he defence does not dispute that fact, '''he evidence of Jeffery Ali (PW2) and that of Anjela Nyakuru (PW^) show that \*hey are brother and sis'\*^r of Susan Awoto respectively. '''hey both testified that ^-h«y saw-h^r dead body on 3/9/88. - Anjela Nyakuru further testified that she later identified the body to \*he Doctor who carried on it autopsy. rehe evidence of Prospero Ongem PW3 shows that he knew Susan Awoto as his neighbour and that he too saw hrr-dead body, "'he postmortem examination Report Fxh. P1 shows that body-was identified as that of *1* Susan Awoto.- mhe Postmortem Report determined-the cause of death **a<** due t0 intimal bleeding resulting from raptured bladder and ex-tensive bruising of the intestines and la'cnra'tion *bt \** **»ry•**

From \*he above evidence, like-\*he gentleman Assessors-I found no difficulty in finding \*ha\* \*he deceased Susan Awoto is dead. mhe prosecution has thus proved this ingredient beyond reasonable doubt.

As to whether the death of Susan Awo\*o was unlawfully caused, th^ prosecution cont^hdft "-ha¹- this was so. \*>he defence again do«-s not dispute this fact.

I⁴- is the principle of our law '•ha⁴- in homicide cas^a \*-h^ killing is usually presumed \*o have been unlawfully caused unless **it** was caused accidentally or i⁴- was committed in circumstances which make it excusable. (Sep

R V Gusambizi Wesonga (l9\*+8) 15 FACA 65)

Killing can bp excusable when i⁴- is committed in self-defence. . -

In-tfoc instant case, ehere was no direc⁴- evidence as to lh« circumstances of xh^ killing and t^e circumstantial evidenceavailable-do not show 4ha⁴ 4hn killing was accidental or that it was committed in self-defence. Hence like the gentlemen Assessors ^I find that the death of Susan Awoxo was caused unlawfully by a third Party.

"'he question is who caused her death ? Before an accused can be prep\*rly convicted of any Criminal offence, he must be linked with the commission of offence with which he has beencharged. '"he prosecution must prove-beyond reasonable doub^x 4hat the accused committed th/- offence with which he has been charged. Mere suspicion will not be enough however strong 'h\* suspicion may b«, - - - - - ^~ - - -

In the instant c°se '•h'' pros ^cut inn-cont ends that 4-he accused unlawfully caused th<' deaxh of Susan Awoxo. -mhis was denied by the defence. In this contention xhe prosecution relies on ⁴hr™ categories of evidence as '•h'-r\* is no direct evidence. ''Vs\* categories of evidence are;-

- (1) Circumstantial evidence. "'his typA of evidence is made up of 4hr evidence of Prospero Ongom (PW3) and that of Anjelr Nyakuru PV/4. - (2) '''he statement (^xh P2) which was made by xhe accused \*o D/AIP Hillary Aluma \_(PW5) on 7/9/88. - (3) "V post Mortem examination Report 'Rxh P1.\_

As regards circumstantial evidence, th^ law is xhat \*o base a conviction-on-a circumstantial evidence, the inculpatory facts produced by that evidence must point irresistibly-to t^p guilt of 4hn accused and must not be capable of explanation upon any ,other reasonable hypothesis than that-of guilt of-thn accused. Further that must be no co-existing circumstances which would weaken or destroy such inference of guil\*. "'h-r^ is a wealth of au\*hortir>s for this proposition. See Musoke VS R (1958) rA 7'15; TUMUHFIRms; VS UGANDA (1967) T?A 528; UGANDA VS JOHN KAKOOZA AND ANOR (1985) HCB 19.

In the instant case, the evidence of Prospero-Ongom PW3 which form part of-the circumstantial evidence is that in the night of 21.8.88 a+ abou+ 41.00 p.m.-while he was $\frac{1}{2}$ a+ his home, he heard alarm emanating from the home of his neighbour the accu-"ha+ shor+ly af+rr-+ha+ alarm, +ho-accused came +o his Sed. (Prospero Ongom's) home +ha+ very nigh+ +o collect fire. "hat when he (Ongom) asked the accused about the atarm which was heard emanating from his home, the accused replied that he would tell Prospero (PW3) above the alarm the next day. But that the next day the accused never came to Prospero's home and never told him about the alarm.

$-3$ .

Mr. Oyarmoi argued that Prespero Ongom-(PW3) is a liar because in his earlier statement $Exh D1(a)$ to the Police he con-\*radic\*s his evidence as to whom the decrased-complained about the assaul+ on her by the accused. That in his statem-nt Find D1(a) Prospero Ongom s+a\*-d that it was-his wife who went to the accused's home where the deceased told-her that it was-the accused who assault \*-d her by stepping on her stomach. But that in his-evidence in court Prospero $+s+ifi-d$ that it was he who went-to the accused is home six days after he had heard the alarm emanating from the accused's home. "That when he arrived-at the accused's home he found the deceased lying down sick but the accused was not at-home. "hat when he enquired of the deceased as to what was wrong withher, she replied that it was the accused who assaulted her-by stepping on her stomuch. Mr. Cyarmoi submitted that this contradiction is serious as-i+ raises doub+ as +o who +he deceased made +ha+ dying declaration or if it was over made.

-Secondly that this Prospero Ongom also lied that he is illiterate, yet the evidence of D/AIP Hillary Aluma PW5 shows that when he recorded the statement (Exh D1(a) from the witness \*he wi\*n-ss signed i\* after i\* was read ever to him. Mr. Oyarmoi argued that-if Prospero can sign his statement which he made to the Police then he is not illeterate as he claimed. From the above Mr. Oyarmoi submi++nd +ha+ Prospero Ongom (PW3) is an un reliable witness and should not be believed.

Mr. Lubwa the RSSA argued that the statement Mx D1(a) which was made by Prospero Ongom to D/AIP Hillary Aluma PW5 should be rejected because-the record shows that the Police efficer who recorded-the statement did not use an interpreter to record the statement from the witness who is illiterate and who knows only his mother tongue which is Alur language.

$... / 4 ...$

addressed I addressed my mind $\bullet$ o- $\bullet$ he above arguments and I found $\bullet$ ha $\bullet$ although the record does not reveal that the Police Officer who recorded the statement (Exh D4(a) from Prospero Ongom on the 7/9/88 did not use an interpreter. I de not believe that Prosp-ro Ongom (PW3)-is-illi+-rate because the evidence of Hillary Aluma-PW5 shows +ha+-+he-wi+ness Prospero Ongom signed +ha+ s+a-<pre>\*emcn\*-before him af\*er \*he s\*a\*emcn\* was read-over \*o\*him. I\*</pre> is-quite possible that Prospero Ongom might not understand-English $bu+ I$ do not believe that he is illiterate. I believe that the Police-officer Hillary Aluma PW5 must have used a language which \*he-wi\*ness understands in order +o-be able +o record his statement and to make the witness understand it when it was read back \*o him before he signed i\*. I-believe Hillary Aluma PW5 because he gave his evidence in a straight forward manner admi-\*\*ing-readily-where he made any omission. I \*hus find him an hones+ and a +ru+hful wi+ness.

$-4$

In +hose-circums+ances I find +ha+-Prospero Ongom (PW3) has lied when he told court that he does not know how to read and write.

Secondly-there is no satisfactory-explanation of the con-\*radic+ion between his Police statem-n+ (Exh D $4(a)$ and-his evidence in court regarding to whom the deceased told of the assault on her-by the accused. Prose ro admitted under cross-examination $+ha+ i+$ was his wifr who wrnt to the accused's home-where shefound the deceased and that the latter told her of the assault on her by the accused. It is therefore clear from the above \*ha+ Prospere has again lied to court when he stated in his evidence $\pm$ ha $\pm$ i $\pm$ was himself who wen $\pm$ +0 $\pm$ he accused is home where he found the decrased lying down sick and she told him of the assault on her by the accused. In those circumstances Prospero-Ongem must be an-un reliable witness whose evidence must be treated with great caution.

However, +hough he +old lies on +wo occasions I never+holess s+ill believe him when he-said +ha+-after some day from the date when he heard alarm emanating from the accused's-home, he learned +ha+ +he-deceased was dead. "ha+ on receipt of +his news-he went to the accused's home where he saw the dead body of the deceased lying on the floor in a house. I am fortified in this belief because this piece of evidence is corroborated by them evidence of D/AIP Hillary Aluma PW5 whom I found to be a truthful-witness. Hillary Aluma-(PW5) testified that-when he went to the scene of crime on duty, he first re arrested the accused

...../ $5$ ...

from Ajia sub county Headquar\*-rs and he was accompanied to \*he accused's home by xhn RC I Prospero Ongom who led him \*o \*-hp house wh^re he found a dead body lying on the floor and was covered-with an old sh^n\*- and again wi^h papyrus ma\*-, '''ha\* \*he rc identified body to him as \*ha\* of . Susan Awo\*o»

From this evidence I believe ^hat Prospero Ongom did sop \*ha dead body of deceased Susan Awo^-o.

\* - But as 4-0 his evidence regarding the failure of the accused to \*ell him (Prosp-ro Ongom) about alarm which he (Prospero) claimed \*o have heard emanating from ♦hn home of the accused on the night of 21z8.88, tha+- failure if it was so, does no\* • in mji view alone point-irresistibly xha\* was accused who unlawfully caused th© dea\*h of his wife Susan Awn^o. '"his is a very weak circumstantial evidence.

Bu^x 4-here is \*he -vidence of-Anjela Nyakuru P?/4. She ratified Jha\* she is xhe sis¹ r of \*h° deceased Susan Awoto. '"ha\* on 3/9/88\* xhc accused came \*o h-r home at Mvara and informed h^r-tha\* her is\* <-r-Susan Awo\*o was sick and he requested her \*o go to-see-h'-r condition. Nyakuru-furxher testified \*ha^x sh» accepted -\*-he Tcqu^s4- nd *s^⁴- off together* with xhe accused-tonwards his home where her reportedly sick sister was. Bu\* \*ha\* midway on xhe way,-■'•he accused sudden\*ly dropped his bicycle and ran away in\*o \*he bush nearby and disappeared leaving-her s\*randed there. "Somehow however, she managed to reached the aecusedts home a\* Aya village in Ajia Division where she found her sister Susan Awoto already dead and the body was lying on \*he floor in a house.

■I believe this witness because she gave her evidence forthrightly and impressed me as a truthful witness. I \*hereforebeliAfP her evidence and find xha\* \*he accused who had gone \*o collec\* his sis\*er -inlaw--to go to see h^r sick sister suddenly wi\*hou\* any explanation ran pway and disappeared in \*he bush leaving t^ sister in law s\*randed.

Mr. Lubwa RSSA submitted xha\* this conduct of \*-he accused in running away from his~sis\*^r in-law-whom he wsb taking supposedly to-see h-r reportedly sick sie^r can only show that he knew xha\* xhe deceased was already dead and xha^t he was r^sponsibble for her dea\*h. '"ha\* \*he-running away was a demonstration **of** guilty conscience on \*he par\* of the accused.

For the defence Mr. Oyarmoi argued ths\* \*he running away

- -5 -

of from-his sister in-law whom he was taking to his homo to snp-h^r sistpr whe was reportedly sick only-raises-suspicion against ^ho accuspfHo have unlawfully caused \*-h\*-d»a\*h of- \*he deceased, He submiftpd ^ha⁴- suspicion alone is no⁴- enough 4o fix-a person with 4hn commission of an offence. Counsel relied on \*-ho casp of DOROVIKO BANGI3I-VS- UGANDA (1976) HCB M where the accused was charged with xhe murder of his wife who it was alleged he pushed in4-© a River when-h© was crossing ^ho Riv©r wihh her and-^ha⁴- ^ho wife was drawn. A⁴- the ^rial before ^ho High Cour4-, the accused denied pushing his wife in4-© \*hp River bu⁴- h© pleaded ^ha⁴- '-h© wife f^n in4-© '-h© Riv-r by herself'. mhe accused was -nevertheless convicted for murder of-his wif© on xhe circumstantial ©vid©nc© tha⁴- hr never r^por^-d 4he drawning of his wife xo \*-hn Policr or to any oHi^r authority. -On appeal, \*-hr court of Annual quashed '■h©-convic x ion-holding '-ha⁴- 4hn failure of 'he accused \*0 renor4- '-hr incidrn⁴- 4o ⁴-h<\* authorities only crpa^pd suspicion.

On '-ha⁴- authority, the learned counsrl submitted that th© »unning-away of the-accus©d from his sister-in-law whom ho was taking t0 his home to spn hrr r©part©dly sick sist^r-ceuld only erratp suspicion-and ha invited mp not 4-0 infer guilt to the accused from that conduct.

\* I addressed my mind 'o-tfap above argument and xhp authority eitrd-but I am ef thp view that the-above ca^p is distinguishable from thp instant case before me on th«ir facts. - - \*

In Bangizi's Case,-the accused just failpd 4o report the drawning of his wife with whom he was crossing a bridge to any authority, Bu\* in the cas\* before me, thp accused knew that his wife was sick and he reported t0 his sister-in-law that fact though without disclosing 'hn-'-ypA and cause of thp-sickness. H© reques\* ted his sister-in-law t0 g© \*o see xhp condition of her sis^p?. wh© sist©r-in-law set off with him \*o his home where thp patient was supposed to be. But-op \*he way as '-h©y are midway to thehomp, the accused sudd©nlj:yran inxo xhP bush and disappeared there leaving his sister-in-law branded on the way. "hat conduct dc^.s not only raise suspicion, bti4\* shows a guilty conscience. rohe only possible inference that can be drawn from that conduct is that 4-ho accused must-have Itftown 'hat deceased was already dead even wh©n-h© w^nt-to in::orm her sisxer hest©nsibly about sickness. Further that he h-d also known that he was responsible for that death. Besides whe : t^0-sistor (PwM managed to reach th© accused's home, she foun< ^I that th© deceased was already dead.

*6*

w

....

'''h\*³ pog4, Mortem Report P1 revealed that the deceased died from internal bleeding resulting from injury \*0 various organsitn her abdominal cavity.- -

- 7 - ~ "

- In those circumstances, I agree with gentlemen Assessors that \*his-cendueof 4h\* accused irresistibly point \*0 his guilt as being t^ person who unlawfully caused those injuries from which the deceased died. " "

'"he prosecution further relied on the. statr^n⁴ (Fxh P2) which the-accusod made to D/AIP Hillary Aluma on-7/9/88. In '•ha\* statement ^h^ accused confessed to have kicked the deceased once in the stomuch because he was annoyed wixh h^r on the ground.tha^x she had drunk off all tfc^r money which he had given her for buying food stuff and she returned from ⁺ he market la4-P in the night drunk but without any foodstuff. mhaf from the day when he kicked b^r, the deceased became sick unxil she passed away.

Mr. Oyarmoi argued for the defence that this s'-a'-nm^n¹- (rxh P2) should be ignored because it was made contrary to Sec. 24 of the evidence Act-and the rules made thereunder. D/AIP Hillary-Aluma PW5 admitted in cross-examination that he did not administer a caution the accused before hp recorded his s+atenant-.

- I-agroe with Mr. Oyarmoi because ^h^ statement (^xh P2) shows that it-was recorded by the-police Officer without first administering to the accused a caution or at all as required by rule 4 made under Section 24 of the PA\* mhis rule is mandatory. Rulo 7 which is also made under this section requires that such a-s^ament must be tak^n in a language used by the accused and must be recorded as near as possible in the words used by the accused. mhat intefcppnt^r must be us^d wherever necessary.

Rule 10 requires 4hH⁴ the caution must be as hear as possible in the following form:-

"You need not say anything ''unless you wish but whatever you do say will be \*-ak^n down in writing and may be given in evidence" - - - - In the instant case, all-the above-procedure have not been-followrd. Mr. Lubwa submitted that \*-he failure to comply with -

that procedure-is-merely a ma^nr-of form and 4hat it does net affect thP content of the document. - -

With all duo respect to the learned R. S. Statp Attorney, these rules are mandatory and they must be followed, '"hey are made to avoid the Police extorting confessions from accused persons either by force-or by fraudulent promises, "'he rules must therefore be strictly followed.


t

Failure to comply with them is failure to comply with the provision of the law and such statement recorded in non compliance with the rules-must be rejected. For the reason ef-this-failure as f dirigtrd the gentlemen Assessors this statement Exh P2 must be ignored.

$- - 8 -$

Before-an accused person can be properly convicted of murder; the prosecution must prove beyond reasonable doubt not only that the \*he-accused unlawfully caused the death of the deceased but also \*ha+ he did so with malicr afore+hough+.

In the instant case the prosecution contends-that the accuaed unlawfully caused the death of Susan Aweto with malice afore-\*hough\*. The defence left + his point open to the court to decide on. I+ offered no views on $i+$ .

The prosecution relied mainly on the injuries revealed by \*he Pos+ Mer\*em Repor\* Exh P4. "his Report shows \*ha\* various organs in the abdominal cavity of the deceased were injured. The spleen and the bladder were raptured. There was extensive bruissing of the intestines and-laceration of the mesentery.-

Mr. Lubwa argued that those injuries were consistent with blows $\pm$ o $\pm$ he abdomen of $\pm$ he deceased. "hat an abdomen of a woman is a very very vunerable mar+ of her body and +ha+ whoever strikes blows or steps on the abdomen of a woman must only intend to kill her. And he invited me to infer malice aforethought from this.

- - $\overline{f}$ addressed my mind +o-the above argument but I am of the view \*ha\* \*here-was no suffici n\*-evidence from which an-inference of in\*~n\*ion \*o kill can be justifiably drawn agains\* the accused. The $k$ ure-and extent of the injuries sustained by the deceased do no+ by +hemselves jus+ify drowing an inference of in+en+ion +o kill. More is required. For instance the type of weapon used is required to be shown and the manner in which it was used ough+-+o have been shown. In-+he absence of the above, I-agree with the gentlemen Assessors that the prosecution have not proved beyond reasonable doub+-+ha+ +he accused unlawfully caused the dea+h of Susan Awo+o wi+h +he necessary in+cn+ion-+o-kill. Even \*ha+~failure-by \*he accused \*o \*ake \*he deceased \*o \*he Hosni\*al for $+rea+men+$ as from 21.8.88 un+il she died on 3/9/88 is-no+ sufficien+-+o justify drowing the inference of intention to kill on the part-of the accused because, that failure could be due to various fuc+ors. "There could have been lack of +rangpor+ more so when the couple lived 18 miles away from Arua-Hespital. Besides the prosecution has not shown by evidence that the failure was deliberaterand that the accused had all the facilities to take her

$+o$ $+ho$ Hospi+al.

In circumstances I find \*-hn accused no\*- guilty of\* murder instead I find him guilty-of manslaughter contrary + o Section 182 of ♦•he Penal Code Ac⁴- and convic⁴- him thereof.

- " ,\*r " 9 ' - - -

?• - z

G. M. OKT'LLO.

JUDGE. 30 - ¹ - 1991-

Cour\*^&gt; Judgmen⁴- delivered in open courS in 4h\* presence of

> Accused. - - - Mr. Oyarmoi for ⁴hr Accused on s^pbmf Mr. Lubwa R. S.8. Attorney for 4hn state.

Lubwa:» Accused is a first offender.

Oyarmoi;**-Convict** is a first offender. He **is** a youngman of about

31 years old. He is very-repentant of having killed his only wife who has left with him two young children. ^hese children are now in custody-of 4hn convict's\*. sister. mhe mother of \*hn convict is tOo old and ihfc father died long time. ago. Accused had been in custody since 3/9/88 to date this makes a period of over tWo years. We pray for leniency.

Sentence.

Accused is a first offender. ""his factor is taken into account in favour of-the accused. He has been on remand in custody for over tw0 years. mhis-too is taken into account in his favour. Considering the circumstance in which the killing-was committed,-the killing must have been an unfortunate result from the usual domestic browl. In those circumstances I shall impose a sentence\*which will reflect the disapproval of the majority of the member-of 4hp public of the crime, -I consider 3 years under those circumstancps-sufficient sentence. -Hence the accused is sentenced to 3 years imprisonment.

G. M. OK^LLO.

JUDGE. 30.1.91