[1993] UGHC 80

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL SESSION CASE NO. 56 OF 91

PROSECUTOR UGANDA :::::::::::::::::::::::::::::::::: versus-ACCUSED JOHN OCHIENG :::::::::::::::::::::::::::::::

BEFORE: THE RON MR. JUSTICE TINYINONDI GIDEON

## JUDGMENT

The accused was indicated for the murder of Emmanuel Odhai which occurred on 10.5.1987 at Nagoke village in Toror District. He was charged under section 183 of the Penal Code $Act_o$

The prosecution called three witnesses and had the evidence of witnesses Nos. 7 and 8 in the summary of the evidence . admitted. Witness No. 7, No. 381 PC Okecha, a District Administration Askari stationed at Kirewa sub-county was detailed to escort the accused to Nagongera Police Post He complied and handed the accused over at 9.00 p.m. on 14.5.1987. He also handed over one stick as an exhibit in the investigations.

Witness No. 8, No. 6650 D/Sgt. Alligat testified, that on 16.5.1987 at 8.00 a.m. he received instructions from the $0/\psi$ CID, Tororo Police Station to investigate a murder case in which the accused was alleged to have killed Emmanuel Odhai. This witness went with Dr. Omunuk to the scene of the crime where the doctor carried cut a post mortem examination and the witness drew a sketch plan of the scene.

PW1, Ochieng Katerama, aged 73 testified that on 10.5.198 he was at his home in Nyagoke village holding a conversation with John Ojwang, Vincent Owere, Lawrence Oburu and John Ochien

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(the accused). The accused was his nephew. At about 11.00 a.m that day Odhai ( the deceased) came and greeted the group. He then moved nearer to and held the accused by the hand and demanded his money. The accused acknowledged the debt but asked the deceased to let him go and look for it. The deceased started insulting the accused and also, the accused's parents. There followed a scuffle but Oburu separated the accused and deceased and told them not to quarrel.

The accused left the place for his home telling the deceased that he was going to look for his money. The accused ¹¹¹ followed him. The accused's home was fifty yards from the witness'^s house. The accused reached his house but the deceased did not reach as far. He stopped on the way about 25 ~ yards from the witness's house when he saw that the accused had picked a stick. The witness described the stick as.a ¹'Casia' stick normally used to mix local beer in a drum and that it was as thick as a person¹ ^s hand and nearly four feet long\*

; The witness further testified that the accused then on both struck the deceased' / • sides of the lower abdomen with that thick stick. That he kind of pierced the deceased. The deceased fell down and was later carried by Lawrence Oburu, Ojwang, Vincent Owere and another Vincent Oweye to one of these Owere\*s houses.

The witness visited the patient (the deceased) at that house where the patient remained for three days after which he died when he was being taken to hospital on the third day.

PW2, Ernest Ofwono, was aged 65 and a cultivator of Nagoke village. He testified that the deceased was his nephew and a cousin of the accused. That he did not know when the

deceased died but that he saw his body at the house of the accused. He said be recollected that the deceased died on 17.5.1987. On that day the witness went to Nagongera Police Post to inform the police who told him to go and call a doctp He called the doctor who carried out a post-mortem examination in his presence. He identified the body to the doctor. He further stated that he personally saw the accused strike the deceased only to change and say that he was told so. He also testified that he made a police statement that before he died the deceased told him that the accused had hit him on the stomach. The witness was present at the burial.

PW3, Bernard Peter Owori, stated that he was 56 years o and a cultivator of Nagoke village. On 11.5.1987 at about 7.00 a.m. one Vincent Owere came to inform him that their brothers - the accused and deceased - had fought on the previous day. The witness went to the house of Vincent Owere where the deceased was lying seriously sick. They talked together. The patient told the witness that the accused had hit him with a stick on the lower abdomen. The deceased showed the witness the part that was struck.

The witness thereafter went to call members of the village resistance committee ("the R. Cs hereafter). They arrested the accused on the ground that the person he had fought was about to die. The accused's house where he was arrested was about 100 yards from the house where the patient lay sick.

Before the accused was taken away under arrest the RCs asked him what he had used to beat the deceased. He pulled a big dry stick used for mixing local brew in drum, about four feet long, from the eaves of his house and showed it to them.

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The stick, and accused were t~kcn bo the sub-county headquaiteis

On 8.5\*1987 the patient was being taken to Busolwe Hospital when he died on the way. The witness stated that the deceased was beaten on 5\*5-1987• He later clarified that the report of the fight was made to him on. 11. 5-1987 and the patient died 4 days later. When the patient -passed out the witness joined the group that offered to escort the accused to the sub-county headquarters while another group took the body home.

The witness had requested the authorities -at the sub-county headquarters to allow the accused help in taking the patient to the hospital and had undertaken to return the accused to his custody.

The witness further testified that he personally did not witness the fight. He also stated that the accused was a very good person. That closed the prosecution case.

At the close of the prosecution case both counsel submitted on the issue of a prima facie case. I ruled that the prosecution had made out one necessitating the accused to be heard in his defence.

The accused made an unsworn statement. He stated that he did not know anything concerning the 10.5-1987- That he did not. do anything either. That on 11.5.1987 at 7.50 a.m he jwas in his house when Bernard Owori came to tell the accused that they should go together to Vincent'^s house. The accused spent a night there and was later released. On 14.5\*1987 people came to his home, arrested him and took him back to the sub-county headquarters. From there he was taken to Tororo Police Station where he stayed five days. Thence he was taken to court, charged and remanded. That closed the defence.

Both Counsel made submissions. Thereafter I summed up for the assessors. I directed them, as I do myself now, on the essential ingredients of murder as contained in section 183 of the Penal Code Act. They are:-

- (a) that a human being is dead; and - that the death was unlawfully caused by the $(h)$ accused: nd - that the accused had malice aforethought when he $(c)$ caused the death of the deceased.

Many authorities have been pronounced on this section. I need only refer to UG. vs. JULIYA AYO: H. C. C. case No. 127/91 and UG. vs. NYANDWOHA: H. C. C. case No. 253/91.

I also directed the assossors, as I do myself on the burden of proof in criminal law. Except in very few statutory exceptions, in all criminal cases the burden of proof is on the prosecution throughout. The prosecution must prove their case beyond reasonable doubt, that is, they must prove all the ingredients of the offence beyond reasonable doubt. They must negative/possible defence. If after consideration of the whole evidence on record any reasonable doubt arises the accused should only be convicted on the strength of the prosecution case but not on the weakness of his defence. Authorities for the above principles include:

UGANDA VS. P. KASUULE H. C. Cr. 31 of 1973 UGANDA VS. NYANDWOHA (supra) UGANDA VS. OLOYA: 1977 HCB 6 WOOLMINGTON VS. DPF: (1935) AC 462 REP. VS. ACHIETU /19347 1 EACA166

Connected with the foregoing I directed the assessors and reminded myself of the necessity of evaluating the whole

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available evidence both for the prosecution and the defence.

I also directed bhem, as I now do myself, that unsworn evidence by the accused is perfectly in order. It is allowed under section 71(2) of the Trial on Indictments Decree. Judicial authority exists on this point: Refer to: LUBOGO & OTHERS vs. UG. /W/ ^E^A ¹⁴⁰ ; JGA. IDA vs, PETER, CHEBENTI: ^H. C. Or. C. NO, 190 o^f 1974 ND-^jTO vs, REP. /19697 EA 575.

The prosecution called the following evidence to prove that Emmanuel Odhai was dead. PW1, PW2 and PWJ saw and buried the body of the deceased. The?/ all knew him and PW2 and PWJ were his close relatives. It is a.fact that the prosecution did not produce and tender a .medical report although PW2 and ^sthe admitted evidence of No.6650 D/Sgt. Alligat speak of a post-morten examination report having boon carried cut. The omission to tender the report, however, does not creat any doubt in mind that Odhai died\* I find support in my holding in PEP.ys\*,OHEEYA AND ANOTHER /1975/ EA 500 that a death can be proved by evidence other than, a medical report.

The next ingredient of the offence is whether the accused unlawfully caused the death of Odhai. PW1 testified that he personally witnessed the quarrel that culminated in the fateful blow which the accused administered by use of a stick as thick as a man'^s arm and so long as four feet. He testified •fjhat it was 11.00 a.m. He knew both parties and the incident took place about twenty five yards away from his house. This was the only evidence of the eye witness to the fight. PVJJ Bernard Peter Owori testified that on 11.5.1987 at about 7.00 a.m Vincent Owere called on him. at his house and told him that the accused and deceased had fought the previous day.

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The witness went to Vincent Owere's house where the deceased was lying seriously sick. The deceased told the witness that the accused had struck him on the lower abdomen with a stick. The deceased showed the witness the part which was struck. The deceased was then lying on his back.

The witness testified further that four days after he had visited him on his sick-bed the deceased passed out while being taken to Buschwe hospital. He was present at the burial. I also directed the gentlemen assessors at this point and do myself new on the law regarding a dying declaration. In R. vs. MGUNDULWA & 2 OTHERS (1946) 13 EACA 169 it was held that it is unsafe to secure a conviction based on a dying declaration which has not been satisfactorily corroborated. See also UG. vs. E. TINKASIIMIRE: H. C. Cr. Session case 16 of 1990 (Hoima)

In considering the whole of this evidence I noted some discrepancies and inconsistencies. I directed the assessors as I do myself on the appropriate law in such circumstances. Which law states that grave inconsistencies, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. Minor inconsistencies will not have that effect unless the court thinks that they point to deliberate falsehoods: UGANDA VS. SEMBATYA & ANOTHER: 1974 HCB 278. The court will of course ignore minor inconsistencies ifthey have no effect on the main substance of the prosecution case: KIGUNDU VS. UG. (1978) HCB 287; UG. VS. NRA 47415 CPL MUHOOZE: H. C. Cr. C. NO. 105 OF 1991.

The evidence of PW3 contains some inconsistencies He stated that the deceased was taken to Busolwe Hopsital on 8.5.1987 after he was beaten on 5.5.1987.

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--- arriver office the Bou information on 11.5.1987 that the fight took place on 11.5.1987 and four days later the This deceased passed out before reaching Busolwe Hospital. witness was illiterate, he was of the advanced age of 56. Apart from the lapse of six years since the incident I hold that these are minro inconsistencies which have no effect on the totality of the cyidence.

PW3's evidence also contained inconsistencies when compared with PW1's evidence. Whereas PW1 testified that the deceased was beaten on 10.5.1987 and died three days later PW3 stated that on 11.5.1987 he received information that the p previous day the accused and deceased had fought and that four days later the deceased passed away. This would give a difference of one day between the two versions. PW1 was also illiterate and 73 years old. Six years had passed by since the incident occurred. Both PW1 and PW3 appeared steady and struck me as honest old folk. I believe their evidence. I regard these discrepances as very minor and they do not affect the combined effect of their evidence.

It is a presumption of the law that in all homicide cases death is unlawfully caused unless authorised or by accident, See GUSAMBIZI s/o MESONGA vs. R. (1948)15 EACA 65. Having considered all the evidence and the law I find that the death of Odhai was caused unlawfully. It was not accidental. Nor was it authorised. I also find that the accused is the one who caused that death.

I shall now proceed to consider the issue of malice aforethought. The law is contained in section 186 of the Penal Code Act. It reads as follows:

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"186 Malice aforethought shall be deemed to be established by evidence proving either of the following circumstances

..... property once we get information on 11.5.1987 that the fight took place on 11.5.1987 and four days later the This deceased passed out before reaching Busolwe Hospital. witness was illiterate, he was of the advanced age of 56. Apart from the lapse of six years since the incident I hold that these are minro inconsistencies which have no effect on the totality of the evidence.

PW3's evidence also contained inconsistencies when compared with PW1's evidence. Whereas PW1 testified that the deceased was beaten on 10.5.1987 and died three days later PW3 stated that on 11.5.1987 he received information that the p previous day the accused and deceased had fought and that four days Later the deceased passed away. This would give-a difference of one day between the two versions. PW4 was also illiterate and 73 years old. Six years had passed by since the incident occurred. Both PW1 and PW3 appeared steady and struck me as honest old folk. I believe their evidence. I regard these discrepances as very minor and they do not affect the combined effect of their evidence.

It is a presumption of the law that in all homicide cases death is unlawfully caused unless authorised or by accident_® See GUSAMBIZI s/o WESONGA vs. R. (1948)15 EACA 65. Having considered all the evidence and the law I find that the death of Odhai was caused unlawfully. It was not accidental. Nor was it authorised. I also find that the accused is the one who caused that death.

I shall now proceed to consider the issue of malice aforethought. The law is contained in section 186 of the Penal Code Act. It reads as follows:

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"186 Malice aforethought shall be deemed to be established by<br>evidence proving either of the either of the following circumstances - An intention to cause death of any $(a)$ persons whether such person is the possen octually killed or not; or - $(5)$ Knewladge that the act or caission causing death will probably cause the death of some person. whether such person is the person actually killed or not, although<br>such knowledge is accompanied by indiferance whether death is caused or not, or by a wish<br>that it may not be caused.

Thus malice afcrethought may be summarised the "intentional killing of a human being or knowledge that one's act or omission will probably result in the death of a human being." In deciding whether malice aforethought has been established the court takes into account the following:-

- (a) the number of injuries inflicted; - $(b)$ the part of the body where the injury was inflicted; - $(c)$ the nature of the weapon used; - $(d)$ the conduct of the killer before and after $\cdots \quad \cdots \quad \cdots \quad \cdots$ the attack.

Numerous authorities exist on this legal position including UG. Vs. TINKASIIMIRE H. G. Cr. Case No. 16 of 1990: TUBERE $s/o$ OCHEN vs. R. (1945) 12 EACA 63.

Considering the element of the number of injuries inflicted PJ1's testimony was that the accused struck the deceased "on both sides of the abdomen:; that he sort of pierced. During cross-examination the witness admitted to have made a statemen t the police that the accused struck the deceased "twice" in<br>I find and old that the the accused struck the deceased the lower abdomen /once as testified on oath. The inconsistent is minor and I shall ignore it. Stricking someone on the lower part of the abdomen is a serious matter because that is a vulnerable and sensitive part of the body. It is evidence

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of evil intention to cause the death of the victim or<br>knowledge that the act will probably cause death

The description of the stick given by PW1 corroborated the description in the dying declaration in PW3's evidence. I believe the evidence of PW1 on this point. There is an omission by the prosecution to exhibit the stick. I have doubts about the size of the stick as described by PW1 and $PW3.$ But I have no doubt that it was such a stick as eventually caused the fatal blow. It cannot be said to have been a straw.

The conduct of the deceased was, however, provocative. The deceased behaved like a bully by insisting on holding the accused by the hand, insulting not only the accused but the accused's parents who had nothing to do with the indebtedness of the accused, and in following him to his home.

I find this is also the appropriate point to consider the defences available to the accused. The accused made an unsworn statement. I directed the assessors that this perfectly in order. The law S.71(i) of the T. I. D. allows it and the assessors should make no bones of it. I also directed the assessors, as now direct myself, on the law. It is the duty of the trial court to deal with all the alternative defences, if any, if they emerge from all the evidence as fit for consideration notwithstanding that they are not put forward or raised by the defence for every man on trial for murder is entitled to have the issue of manslaughter left for the assessors if there is evidence on which such a verdict can be given him. To deprive him of this constitutes a grave miscarriage of justice: MANCINI vs. D. P. P. (1942) A. C. I; DIDAS KABENGI vs. UG.1978 HCB 216;

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YOV. M vs. UG. (1970) EA 405; E. GALIKUWA vs. R. (1951) 18 E. C. 175.

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Provocation is provided for in section 187 of the Code Act. It goes:-

$"187.$ When a person, who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden prevocation as hereinafter defined; and before there is time for his passion to cool he is guilty of manslaughter only.¹<br>1960/EA 323 In YOKOYADI LAKORA s/o OMERI vs. R., it was held that "Each case must depend on its own facts; and the question in each case is whether or not upon the facts of the particular case, the killing was done (or there is a resonable doubt that it may have been done) in the heat of passion caused by sudden provocation as defined by s.188 of the Penal Code Act and before there was time for the passion to cool

Let it be noted here that though the onus is on the accused to establish provocation /OBAI ONYANGO vs. R: (1952) 22 EACA 422/ if there is evidence from which the court can proceed to consider the issue, then the court will have acted within the law as enunciated in the MANCIM case (supra).

Consequently I find that the evidence of PW1 in this case discloses a case of provocation. I need not revisit that evidence here. I hold that the accused was provoked.

directed the assessors on self-defence pointing $\mathbf{T}_{\parallel}$ out that if the defence is upheld the accused is entitled of an acquittal unlike under provocation where the charge is reduced to one of manslaughter.

The defence of self-defence is found in section 17 of the Penal Code Act. It reads: -

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$"17.$ Subject to any express provisions in this Code or any law in force in Uganda, criminal responsibility

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(a) for the use of force in the defence of a person and property; and

(b) $\cdots$

shall be determined according to the principles of English Law."

The said principles of English law have been pronounced upon by several judicial authorities.

In R.vs. JULIEN /196972 ALL ER 856 it was laid down:-

"It is not, as we understand it, the law that a person threatened must take to his heels and run in the dramatic way suggested by counsel for the appellant; but what is necessary is that he should demonstrate by his action that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps to make some physical withdrawel; and to the extent that that is necessary as a feature of the justification self-defence, it is true, in our opinion, whether the charge is a homicide charge or something less serious.".

Here I must revert to the case of SMITH (1837)8 C && P $160$ at P.62 where it was stated that it is lawful for a person to kill another in self-defence if it appears:-

"that the defence was necessary, that he did all he could to avoid it, and that it was necessary to protect his own life or to protect himself from such serious bodily harm as would give rise to a reasonable apprehension that his life was in immediate danger."

Smith and Hogan on "Criminal Law" state that it is only fear of death or grievous bodily harm which will do. Fear of a mere assault will not justify the use of deadly force. The degree of force used in repelling the assault must be proportional to the one used by the assailant.

The evidence before me was that the deceased initiated

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, scuffie. '^h,en the warring brothers were separated from their scuffle by Lawrence Oburu, the accused walked toward his home. But the deceased followed him insulting him and hi parents. Probably having retreated to his home and seeing tt deceased following him lie picked the stick and this time round, moved towards the deceased and struck him. However, can it be the law th.au when the accused picked the stickj. whatever it is size, and advanced toward and pierced thefdlf-f deceased with it on the abdomen, the accused was protecting ?lf fre when the combatants locked horns Oburu found little reasonable apprehension that his life was in immediate:! dan bodily harm as would give rise I do not think sc. The deceased was not armed. Earlier bn" difficulty in separating them. In my view the accused did not retreat enough. It is the law that in self-defence "the danger measures the right:" SYMONDSON .(1896)60 J«P, 645 quoted in Smith and Hogan (supra) p⁰ 2J2. ^I find and hold ^H i' that the force used was unproportional to the force 'of '! ¹ l.lj! ^I II. insults and sc unreasonable as to deprive the accused of defence. ^I '■! »1Hi ;

I next directed the assessors and reminded myself oil the possible defence of alibi. An accused person who puts In rff"ll up hrs defence does not have to prove it, See:-

DG, vs. F. KAKOOZA 1984 HOB ¹

UG. vs. EJABB; 198\$ HOB 82

UG-\* vs. RUKAFYAHA: H. C. Cr. C\* 4\$/86

Once the defence is raised it now remains the duty of the prosecution tc destroy or weaken it by adducing evidence which puts the .accused ' the place of the crime. See:- '• SEKITOLEKO vs, UG, Oesy^EA ! rj

In this case the accused did not raise the defence. He only stated that he neither knew nor did anything on 10.5.1987. But following MANCHINI (supra) I had to review and evaluate that statement along the evidence of the prosecution witnesses. In which light I find and hold that the evidence of PVv\*1 and the dying declaration squarely placed the accused at the ccone of the crime.

The gentlemen assessors advised me as follows. That they believed Emmanuel Odhai died. That though the accused denied the incident the evidence on record placed him at the scene and pointed to him as the person who killed the deceased. That they believed PW1^t Ochieng Katerema'^s evidence. They considered the inconsistencies in the evidence to be minor; they stated that the dying declaration i.,, *, was* corroborated by PW1, Ochieng Katerema. That the accused acted in anger due to the insults hulled at him and his parents. They opined that the accused was provoked and did ^j. ¹ not act with malice. They stated that the death was accidental They advised me to return a verdict of manslaughter. It is the Court'^s view that given the detailed opinion by the assessors when they stated that the death was ''accidental" they did not mean the legal defence of accident 01 which would entitle an accused person to an acquittal. Rather they meant that though the accused unlawfully killed the deceased he did so without any malice aforethought

In agreement- with the- opinion of the assessors I find Irk' ! the accused not guilty of murder but of the lesser charge of manslaughter for which I ace- rcinj convict him.

Sgd. ' Tinyinondi Gideon

J U D G E 5.5.1995

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Accused: I have been on remand for 6 years. My people - 6 children, a mother who is a widow 70 years old - are suffering, I pray for lenience.

Sgd. Tinyinondi C'apon

JUDGE 3.5.1993

Mr. Ochienghs: I pray that court takes into account that accused has been on remand for 6 years. Prisoner is a first offender. The law should lean leniently towards him. Circumstances of crime: Court should consider the accused had withdrawn from place of first fight and accused behaved like a bully. The attitude of deceased greatly contributed to the misfortune. If deceased had not followed accused there would have been no death. If deceased was so aggrieved the best course would be to file civil suit.

The law does not condone those who cannot control tempen. At the same time the law should not forget human weakness. Humans are not angles.

As accused said he has 6 children and helderly mother all depending on him I would say the accused has stayed in prison for 6 years, court finds a lenient sentence preferably 6 years. And considering he has been there 6 this court could order immediate release. I pray accordingly.

> Sgd. G. Tinyinondi JUDGE 3.5.1993.

> > $...$ /16

M? ss Khisa: Under s. ,184 of the Penal Code Act sentence is life imprisonment. This is a very serious offence where human life was lost at the hands of the accused. In the allocutus accused referred to his family. While Court can consider these points it should bear in mind that deceased is buried and will never assist his family. Society deserves protection from like., o, .ic accused. I pray for a stiff sentence to be meted out for other members of community to desist from settling their scores in the way the accused did.

> Sgd. G. Tinyinondi JUD GE 5-5.1995\*

^Court^s I have listened to the points raised by the accused and both counsel. It is true as agreed by all that the way the. accused decided to settle his scores with deceased was abominable. The circumstances were not such as to summarily extinguish the life of the deceased. The accused may state ihe has a large family to care for but he should have thought about this before striking the deceased, who also had people looking upon him £ • support them. I have taken account of the fact the accused is a first offender and the period he had boon on remand and his dependants. I would have- sentenced him to seven years imprisonment. Since he has served six years he is now going to serve one year more^r ^v ^x

> Sgd. G. Tinyinondi JUDGE

> > 3.5-''>995-

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