[1991] UGHC 26

^> ^TaL^u ^x'Cⁱ-U-ijJ^L'A/\_ ±a.rio •■- -'• \*

### THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL SESSION CASE NO. 162 OF 1991

UGANDA J:::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTOR

#### VERSUS

NTOMI WILSON:ACCUSED

## BEFORE: THE HONOURABLE MR, JUSTICE,I. MUKANZA

# JUDGMENT

The accused person in thi® case is call-oH ^M^o of Murder contrary to section 183 & 184 of the Penal Code\* The allegation being that on the 16th day of April 1990 at Rubona Mukarahizxi villas⁰ in- one Soi-o-G-i-o-

The case for the prosecution was simply that P. W.1 and P. W.2 owned bare at the trading ext; Mukax'slii-erO- On 5^-th- Ax>r^l 59^0 at around J. JO p.m. the deceased went for a drink in one of the bars owW by p. W.'f (Retort Monday). He left the bar for home at around ?. J0 p»m. Shortly afterwards at around 8»0O p-nu the -debased returned yelling saying that Tom had speared him. He came and fell in the bar owned by P. W.2. The deceased had a stab woupd on the stomach and intestines had protruded. Both P. W.1 and P. W.2 talked to the deceased and the latter told them that he had been stabbed by the accused. ^A report was made to the authorities who came to the scene immediately unfortunately the deceased passed away in the same night at around *9.00* p.m. The accused was arrested and detained at the Gombolola Headquarters.

On the following day Detective/Sgt Makoha P. W. J accompanied by Dr. Batisha P. W. J a Medical officer whose evidence was admitted under S. 6A TID visited the scene as and carried out a postmortem of the deceased's body. The body was found outside the local bar

.................... /2

He found a stab wound measuring $\delta$ X 2 centimetres. The stab wound was on the abdomen and the small intestines were out. The cause of death was shock due to internal bleeding. After the postmortem examination P. W.5 compiled a report and gave it to P. W.3. The postmortem report was exhibited in court as exhibit P.3. At the end of it all P. W.3 on information received he went to the Gombolola Headquarters where the $x$ re-arrested accused had been detained. He / . the accused and interrogated him. As a result of his interrogation the accused led him to his fathers house where the accused went in one of the rouns and recovered (brought) a spear which was said to have been used in the commission of the crime. It had no blood stain. The spear was exhibited in court as Ex. P.1.

When P. W.3 delivered the accused in the cells at Fort Portal Folioo Station accused said wanted to make an extra judicial statement. He was availed before a police officem in the names of Traphimus Balinda F. W.4 Assistant Inspector of Folice who proceeded to charge the aboved and cautioned him. The accused made a confessional statement before $P_{\bullet}W_{\bullet}$ in Lutoro language which was later translated into the English. The Lutoro statement and its English translation were exhibited in court and marked as exhibit P2.

The case for the defence was that some time back before the incident the accused as DW1 and his wife were deep asleep in their house when somebody went and cut the accused on the head. The accused was hospitalised in Virika Hospital and when he was discharged he still felt very weak continued getting treatment from Virika Hospital as an and. outpatient. By then he could not walk on his own without being supported and because of his sickness he could not go back to his job of looking after cattle. He got completely cured when he was in Katojo Prison but sometimes still feels unwell.

. . . . . . . . . . . /3

$\overline{2}$

On 16th April 1990 he remained home since morning. He could only go out for sunshine in the court yard and then he would go back to bed. While there DW3 came to see his father. DW2 was also there. He remained at home the whole day and slept all the time. He went to bed at $8.30$ p.m. and that was after supper. He slept at his father's home on that day and on leaving the hospital he continued living there.

$\overline{1}$

He did not go to the trading centre armed with a spear and never stabbed the deceased. While asleep on that day he heard the drum "Kangabaija" { $\alpha$ drum signalling danger and inviting residents to go to the scene). He did not answer the alarm because he was sick.

The spear exhibited in court was his. He used to graze cattle with it. Folice officers took him to his fathers home. He remained in the vehicle and they went and collected the spear from his fathers house. He was forced to endorse the signature on a propared piece of paper by Balinda P. W.4 who told him he was going to straighten his matter. He did not know what he thumbprinted. They were only 2 people. He denied having made a confession to F. W.4.

DW2 and DW3 stepmother and grandfather to the accused respectively came out in support of the accused's alibi. That they were with DW1 in his fathers house where he was seriously sick and never went out at all. DW2 however reiterated that DW1 sustained the injury around January, 1990 about 3 months prior to the incident and would perform his duties well. That he did not know Kiiza & Mary Byabali persons mentioned by the accused in his confessional. statement. She had been on the village for $\frac{y}{\gamma}$ ; but doesn't go out at all even does not go to the trading centre. Everything she wanted is just bought and brought to her.

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

# directed

As ^I / : the assessors in ^a charge of murder the prosecution has to adduce evidence to prove the following ingredients of the offence namely

- (a) That the accused is dead. - (b) That it was the accused who caused the death of the deceased - (c) and that there was malice aforethought as stipulated under S. 186 of the Penal Code Act. See Sentongo v 7 Sebugwawo EACA Cr. App. No. 123 of 197^ Rep. 1979 HCB P. 2^0.

Before I proceed to evaluate the evidence the prosecution has . . . cases the burden m criminal /. to prove the charge) against the accused person beyond reasonable doubt except in a few cases this being not one of those exceptions See Woolmington vs DFP 1935 AC p. ^62 Paulo Omale vs Uganda Cr. App. No. 6 of 1977 Rep, in Vol 1978 Judgment court of Appeal Uganda May/August 1978.

Turning to the first ingredient as to whether the deceased is dead. The evidence is overwhelming. P. VL1 and P. W.2 testified that the deceased came yelling in the trading centre that he had been speared. His intestines were cut and after a few minutes he died. Whereas F. V..3 and E. U.⁵ were policemen and the doctor who visited the scene and found the body of the deceased lying outside the bar at the trading centre covered under a shelter. P. VJ.5 carried out the postmortem examination. He found a stab wound on the abdomen and the cause of death was due to shock due to internal bleeding. Even DW1, DV/2 and DW3 do not dispute the fact that Selegio Isingoma was dead. Sothe fact that Selegio Isingoma is now dead and died as ^a result of violence is no longer an issue. However the searching question is who caused his death?

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

As could be deduced from the evidence on record there was no single eye witness to the killing of the deceased. In otherwords there is no direct evidence: So what we are left with is what is known as circumstantia evidence. It is trite law that in case depending exclusively yupon circumstantial evidence, the court must before deciding upon circumstantial evidence, the court must before deciding upon a conviction find that the inculpatory facts are incompatible with the innocence of the accused person, and incapable of explanation upon any other hypothesis than that of guilt See Taper v R 1952 AER P. 447. Simon Musoke vs R. 1958 EACA F. 715, Yowana Serwdda vs Uganda Cr. App. No. 11 of 1977 UCA.

$\overline{5}$

I now proceed to consider the circumstantial evidence. My firct enquiry takes me to consider the words the deceased informed P. W.1 and P. W.2 that he had been speared by the accused whether they mounted to a dying declaration. As recalled the accused frantically denied to have speared the deceased. His version of the events of the date of the incident was that he was very sick person who had not recovered from the injuries he sustained when he was attacked in his house and cut on the head. He could not have gone to commit the offence. In otherwords he put up an alibi as a defence. Of course an accused person who puts up an alibi as a defence does not thereby assume the burden to disprove it. The cnus lies on the prosecution to destroy the alibi by placing the accused person at the scene of crime. R vs Johnson 1961 3 AER P. 969 1967 Ea 531 Sekitoleko vs Uganda/ Leonard Aniseth v Republic 1963 EA P. 206.

Archbold on pleading Evidence and practice in Criminal cases 37th Edition Paragraph 1082 (9) Page 396 had this to say about what amounts to a dying declaration.

........../6

"Upon an Indictment for murder or manslaughter the dying declaration of the deceased receivable in evidence if appears to the satisfaction of the Judge that the deceased was conscious of his being in a dying state at the time he made them and was sensible of his awful situation even though he did not express any apprehension of the danger and death did not ensue until a consideration time after the declaration was made."

Also under section 30 (a) of the Evidence Act Cap 43 statements written or verbal of relevant facts made by a person who is dead as to the cause of his death is admissible in evidence.

$\overline{6}$

The deceased in this case told P. W.1 and P. W.2 that he had been speared by the accused. At that time he had a stab wound and intestinee had come out according to the 2 prosecution witnesses P. W.1 & P. W.2 It was submitted on behalf of the defence that there was no evidence that the accused stabbed the deceased. That the dying declaration was not made by the deceased in hopeless expectation of life. That the surroundings to make the statement must be given the credibility by the prosecutor. They did not do that for example they did not say how long the deceased remained alive. I do not agree with the learned counsels submissions. The deceased came yelling because of pain and fell in the bar. He had a spear wound and intestines were out and of course blood oozing. The deceased was conscious of his being in a dying state. He was in a hopeless expectation of death. He was conscious of the awful situation and passed away almost immediately in that night after his utterances that he "had been speared by Tom!" P. W.1, P. W.2, were positive that the accused was the only Tom in the village. I believed them. And even his statement to F. W.1 and P. W.2 as to the cause of his death is admissible under S. 30 of the Evidence Act Supra. I believe F. W.1 and F. W.2 that they told the court the truth. The deceased utterances to them mounted to a dying declaration and I so find.

. . . . . . . . . . . . . . /7

It was held in Jasunga s/o Akuir.u ^v R. ¹⁹.5⁴ ² ¹ ^KaCA F. ³³¹ that caution must be exercised in the reception of Evidence of a dying cisration particulary to identification when the attack has taken place at night.

And in ^R vs Said s/o Akumu ^v R. 195^ ²¹ SAC^A 1. 331» that it was unsafe to base a conviction solely on a dying declaration of a deceased person owing to the possibility of mistake on his part in the identification of the assailant but other evidence including circumstantial evidence may go to show that the deceased could not have been mistaken.

It is true it was at night when the deceased was stabbed but there was evidence that the deceased lived in the same village with the accused person- They had known each other for a long time anc even the accused Dil, Dh'³ did not dispute this. /According to the dying declaration the accused speared the deceased. F.fr.1 however informed this court that though it was dark at the time the accused came to them F. W.1 & but one could be r.ble to identify any one five metres away. I am of t^e opinion that when tie accused speared the deceased which he denied he was near enough so ,.s not to be mistaken for any other person by the deceased. The deceased rcperly identified the accused as his assailant.

There was evidence from P. W.3 a police officer that on re-arresting the accused person and after interrogating him the accused led him to his fathers house where the accused entered in one of thr> rooms and recovered spear which was alleged to have been used in the commission of the present charge. The accused in his evidence ad'vs'5x'-d that the spear which was exhibited in this court '\*-0^ h" and used to use it when grazing - ttle but he denied that he led the police to his fathers house ad ^a result cf which he came out with a spear which he handed to 1-. V/.3 and thus treated r.s an exhibit.

............... ...../8 The learned counsel representing the accused submitted that there was $\mathop{\rm nothin}\nolimits_F$ to connect that device to the crime because neither blood found on it nor was it found at the scene of crime. That was an attempt to give flesh to the dying declaration because corroboration was necessary that the case for t the defence was a total denial. The spear could have been taken to Government analyst for analysis.

I agree with the learned counsel that the spear was not found at the scene and that there was no blood on it, but I believed F. W.3 that the coused led him to his fathers house where the spear was recovered in one of the rooms. This piece of Evidence is admissible under S. 29 (a) of the Evidence Amendment Decree (Decree 25 of 1971 as information leading to discovery of facts. It was also not necessary to send the spear to the Government expert for analysis because there was nothing to analysis about. There was no blood on the spear.

This now leads me to another aspect of this case the statement by the accused to F. W.4 or call it a confession. P. W.4 testified that P. W.3 brought him the accused person who was charged of murder and that accused was confessing. P. W.3 brought the accused before him. He gave the accused to sit on a chair $\mathop{\text{\rm\#and}}$ told P. W.3 to go away. He read the charge to the accused in Rutoro language. He too was a mutoro. Accused told him he had understood the charge and he cautioned him. The accused then voluntarily gave a confessional statement admitting the commission of the crime and eventually thumbprinted the confessional statement after the same had been read over to him. In his sworn statement the accused testified that he saw Charles Balinda $P. W.4$ who took him across the road and: told him to endorse a prepared paper on the understanding that he was going to straighten his matter. e did not know what he was endorsing and never read the contents of the x accument. They were only 2 people in the room. P. W.4 promised to straighten the matter and thereafter release him. So he asked him to thumbprint the runent exhibit P.2. In his submission Mr. Mugamba the learned counsel appearing for the accused stated that the accused was a sick man and believed that he was going to be released. Mr. Balinda took advantage of his handicaps and went ahead and fabricated the story using other sources of information. His main object being that the dying declaration be corroborated. It was possible for the state with its powerful machinery

.........../9

$(\widehat{\mathcal{P}},$ to coarce to make what appears a voluntary confession. The learned State Attorney on the other hand submitted that the confession was voluntary and was given by the accused person without undue influence and promise of any sort.

In the confessional statement the accused gave the background of the conflict between him and the deceased trouble emanating from money which the deceased said the accused had stolen in a bar and how the deceased threatened to kill him and on 29/1/90 the deceased cut him on the head with a panga while asleep with his wife. $\mathfrak{X}$ He caused the arrest of the deceased but was not happy when the police released him.

The selient points of the confession were:-

"Because the accused usually declaring to kill me and bewitch me. On Monday $16/4/90$ at 22.00 hours I woke up with a spear and I went and hid myself in a small bush. The bar was at Karahizo. The deceased was in the bar drinking. There came Kiiza Kamara who by passed me and met deceased on the gate going to his home. Soon after Kiiza had entered I speared the deceased once and I removed the spear from him. The deceased ran back into the bar where he found Kiiza Kamara who tied his stomach. No one saw me spearing the deceased. But when I was arrested I told the police admitting that I killed the deceased and I even produced the spear and handed it to them as exhibit. Kiiza Kamara has no case he should be released free from custody. I am the one who killed the deceased alone."

The evidence (Amendment Act 1985 Act 2 of $1985$ replaced section $24,25$ & 26 of the Evidence Act Cap 43. In that S. 24 (1) :-

- 1. "No confession made by any person whilst he is in the custody of a police officer shall be proved against any such kerson unless be made in the immediate presence of a police officer of or above the rank of Assistant Inspector - (b) Magistrate

$\ldots \ldots$

athen im. ...

A confession made by an accused person is irrelevant if the making of the confession appears to the court having regard to the state of mind of the accused person and to all the circumstances to have been caused by any violence, force, threat, inducement or promise calculated in opinion of the court to cause an untrue confession to be made."

And in Njuguna s/o Etat 1954 21 EACA 1. 338, It was held that it is upon the prosecution to prove affirmatively that a confession has been voluntarily made and not obtained by improper or unlawful questioning or ceased to operate on the mind of the maker at the time of the making.

In the instant case P. W.4 Trophimus Balinda was an Assistant Inspector of Police. Therefore under the above law he could record ? confessional statement from the accused person because he was of the rank of Assistant Inspector of police. Ke told this court that on receiving the accused he gave him ^a chair to sit on read the .charge and cautioned him. Then he recorded the statement from the accused person in Lutoro language after which he read back to him and he thumbprinted it. They were only ² people in the office. I believe him. I do not believe the accused that he found a prepared document and was asked by P. W.4 to thumbprint without knowing its contents\* Otherwise where could have P. W.4 get all the information that was contained in the document. (the confessional statement). My finding is that the accused was trying to twist the story to look as though he was induced to make the confession. The confession was voluntarily given by the accused person to P. W.4. Neither force, threat,inducement nor promise of any kind influenced the accused in making the confessional statement. His allegations that he was told by PiW.4 that he was going to straighten the matter were all lies. It cannot also be said the confessional statement was obtained by improper or unlawful questioning or by any other improper meansi I believe P. W.4 told this court the truth.

In the end the alibi raised by the accused person has been destroyed by the testimonies of P. W. 1, P. W.2, P. W. J and P. W.4. The evidence adduced was able to place the accused person at the scene of crime. In that the dying declaration as testified to by P. W-.1 and P. W.2 was finally corroborated by the confessional statement of the accused as testified to by P. W.4. The same dying declaration was further corroborated .................... .. ./11

by the evidence of the doctor F. W.5 who carried out a postmortem of the body and found that there was stab wound on the abdomen where small intestines were haemeting and perforated with blood intrapiritonedly and that the cause of death was due to stab wound and internal bleeding. From what has been explained above $\perp$ find that it was the accused person $statement$ and nobody else who caused the death of the deceased. The confessional/ was true. The second ingredient of the charge of Murder has therefore been fulfilled.

This brings me to the last ingredient of the offence whether the accused had the requisite malice aforethought as stipulated under section 186 of the Fenal Code. The accused defence was an alibi. That he was never at the scene but it has been shown above that the prosecution managed to destroy and or disprove the alibi by placing him at the scene. However malice aforethought flows readily from the type of instrument used in killing and the part of the body that is injured. The deceased died because of being stabbed with a spear. A spear is a lethal instrument and if used on a sensitive part of the body could cause death. The deceased was stabbed on the stomach which was a vulnerable part of the body. In the premises the accused had the requisite malice aforethought. Besides that the accused way laid the deceased and the court could not lose sight of the fact that he suspected the deceased to have cut him on the lead and also accused him of declaring to kill and to bewitch him. It is who considered opinion of this court that the accused was revenging. That too was evidence of malice aforethought the intention to cause death.

From the evidence as shown above the inculpatory facts are incompatible with the innocence of the accused person and incapable of explanation upon any other hypothesis than the accused committed this offence.

$\cdots \cdots \cdots \cdots / 13$

1集

There were some discrepancies and or inconsistences in the prosecutions case. In his testimony P. W.3 informed the court that when he visited the scene with the doctor F. W.5. He rearrested the accused and brought him to Fort Fortal Police Station and then later on took him to Magistrate before whom he made a confessional statement whereas P. W.4 in his testimony informed the court that he received the accused person from P. W.3 and he proceded to record a confessional statement from the said accused person. It has been held that only grave inconsistences if not explained satisfactorily will usually result in the evidence of a witness being rejected minor inconsistences will not usually have that effect unless they point to See Tajir case EACA Cr. App. No. 167/69. Rapheal Alphonse v R 1973 EA. Celiberate untruthfulness/ I am of the view that the contradiction and $73$ or inconsistances in the evidence of F. W.3 and P. W.4 are minor and do not point to deliberate untruthfulness and we such could be ignored.

Lastily it is opportune at this time to consider as to whether on the evidence available there are any defences open to the accused. There is the defence of provocation as stipulated under $S$ 187 of the Ienal Code where this/proved the charge of Murder is reduced to that of Manslaughter contrary to section 182 of the Penal Code. To be available to an accused person the killing must be done in the heat of passion after sudden provocation before there is time to cool. The accused uspected the deceased to have cut him way back after a period of 3 months had elapsed. He killed the deceased after 3 months had elapsed. Therefore the killing was not done in the heat of passion before there was time to sool. This defence of provocation is not available to him See Festo Shirabu <u>/o Musungu 1954 Vol. XXII P. 454.</u>

The defence of self defence is also not available to him because the killing was not done in self defence. Where the defence is successful accused is entitled to an outright acquittal. Similarly the defence of

............/14

intoxications as stipulated under S. 13 of the Penal Code is not available to the accused person because he was not intoxicated when he killed the deceased where the defence is available to the accused the charge of murder would be reduced to that of Manslaughter.

$T^2$

The accused would also not be criminally responsible if the killing occurred independently of the exercise of his will or for an event which occurred by accident, where this defence was available the accused would be entitled to an acquittal. See S. 9 of the Penal Code.

The sum total of all that has transpired above is that the procecution is proved its case against the accused beyond reasonable doubt. I am therefore in full agreement with the opinions of the gentleman assessors that the accused person be found guilty and convicted as charged. I find the accused guilty of the offence of Murder contrary to section 183 and 184 of the Fenal Code Act and I convict him socordingly.

## Sentence

There is only one sent nce for a person convicted of Murder. The accused is dentenced to Death. He shall suffer death in the manner authorised by law. S. 97 of the TID.

(I. MUKANZA) J U D G E $16/7/91$