[1990] UGHC 33

IN THE HIGH COURT OF UGANDA AT KAMPALA HOLDEN AT GULU BEFORE: THE HONOURABLE AR. JUSTICE G. M. OKELLO. CRIMINAL SESSIONS CASE NO. 71 $OF$ 1990. $\mathcal{A} = \mathcal{A} = \mathcal{A} \oplus \mathcal{A}$ $U G A N D A$ ..... .................. PROSECUTOR. $-$ versus-

The How Mr. Justice Solvade

JEPANIA OKOT ..................................

## $J U D G M E N T₂$

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The accused Jepania Oket and the deceased Edisa Lamunu were husband and wife. They were married to each other and lived for about thirty years. They were peasants who lived in a small village called Lujorongole in Bobi Division of Omoro County in Gulu District.

On the 7-1-90 the couple went to attend the last funeral rite of one Okot Apil within their village. At the funeral both took some alcoholic drinks. On their way back home, the deceased somehow collapsed and fell down. The accused seeing this went to the nearby home of Mathew Owiny. He woke the said Mathew Owiny and informed him on what happened and asked Owiny to go and assist. Mathew Owiny obliged. He accompanied the accused to the place where the deceased was lying. $0n$ arrival Mathew Owiny confirmed that the deceased was in a bad with her children condition. Eventually he assisted/in carrying the deceased to her home.

The following day the deceased died and the accused was arrested and charged with the manslaughter of the deceased contrary to section 182(1) of the Penal Code Act. The prosecution alleged that on or about the 7th day of January, 1990 at Lujorongole village in Bobi Division of Omoro County in Gulu District Jepania Okot unlawfully caused the death of Edisa Lamunu.

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The defence on their part denied the alley"tion. Hence the trial which ;-av?. rise to this judgment.

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The offence created by section 182(1) of the Penal Code Act may He committed by ar1, unlawful <?.ct or by an unlawful omission. Those constitute' ;he essential in-are. ients of the offence of manslaughter.

In order for the offence against the accused uo be established it must be proved that:-

- (l) Edisa Lamunu is dead⁵ - (2) that her death vw s unlawfully caused by the accused Jepania Okot.

It is the cardinn]. Principle of our law that the burden of proving all the above ingredients lies on the prosecution and the standard of proof required is beyond reasonable doubt. Authorities for this principle are ^r\any. See

V/oolmington v. DPP (1935) AC 462; Olreth Okale. v. Republic (1965) EA 555.

In a bid to discharge the above burden, -il.e prosecution called and relied on two -'finesses - Llathew Owiny (P'.7l) and D/IP Thompson Christopher Onaka (2'73). The third witness Enacimu Okello (P'?2) was declared hostile thus rendering his evidence valueless both for the prosecution and the defence as by that declaration it is sought to show that he is an unreliable witness.

On whether the deceased Edisa Lamunu is dead, there is no dispute from both Parties. There is ho -ever no medical evidence on this point but --he evidence of Kathew Owiny (P"'l) shows that he knew the deceased very ■•.•ell since they were neighbours.. That he sav/ the dead bo-'y of the deceased lying in ? house in the accused's home, '.'he accused himself in his unsworn statement uo cj n:t admitted that the deceased was his wife ad that she is now' dead.

The law is that death can be proved beyond reasonable doubt by some other evidence other than medical evidence. This principle of the law was estated in the case of Republic vs. Cheya and Anor (1973) EA 500. a and the start

In the instant case though there is no medical evidence of the accused the evidence of P'1 and the unsworn statement/show clearly that the deceased Idisa Lamunu is dead. Like the gentlemen Assessors I find that the prosecution has proved beyond reasonable doubt that the deceased Edisa Lamunu is dead.

As to whether it was the accused Jepania Okot who unlawfully caused the death of the deceased, the prosecution contend that this was so. In support of this contention the prosecution relied on two sets of evidence namely -

- (1) Confession by the accused to Mathew Owing $P/I$ and the accused's charge and caution statement made to Detective Inspector of Police Chompson Christopher Onaka P73. - (2) Circumstantial evidence: I shall consider the above evidence in that order. - $(1)$ Confession made by the accused to Mathew Owiny $P:11$ .

The law regarding a confession made by an accused person to a person other than a Police officer or a person in auth-<br>that it is ority is/admissible in evidence and can be proved against the accused if the court is satisfied that the confession was $12.00$ really made.

In the instant case P''1 Mathew Owiny testified that the accused is his neighbour and that in the night of 7.1-1990 the accused come to his home and told him (the itness) that he (accused) assaulted his (accused's) wife when they were returning from the funeral of Okot Apil and that she was badly off on the way. We asked the witness to go to assist which he (the witness) obliged. He accompanied the accused to the place where the deceased was lying. That on arrivel he (P71) tried

•••to lift her up'but she cried to be left alone because she .was feeling much pain. That the night was not very bright. That as he (P'7i)' tried to lift the deceased, he touched on her right ear something wet which he thought it was vomit as both the accused and the deceased were smelling alcohol. But that when he smelt it, he realised that it was blood.

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The defence did not challenge this evidence of confession 'by the accused to PW1 either in. cross-examination or in the unsworn statement of the accused in court. The effect of this omission is the inference that this piece of evidence is admitted by the defence.

• rio • ' ' ' - The prosecution further relied on the charge and caution statement which was made by the accused to Thompson Christopher. Onaka (PW3) an Inspector of Police of Oulu Police Station on 10-1-1990. This statement was received in evidence and marked Exh. P.1 for the English version and - Exh. P.l(a) for the Luo version. P:73 testified. vhat he obtained the. above statement from the accused .who opted to make in Luo after he had duly administered to the accused a charge and caution in Luo which is a mother tongue of both the accused and the witness. In the statement the accused admitted to have killed his wife though that' the killing was accidental. - - ••

•The defence did not dispute the. making of the above statement nor that it was made after the administration by the Inspector of Police to the accused a charge and caution. The defence however challenged the date when the document was signed by the accused. It was argued by the defence that whereas the documents show that they were made and signed on 10-1-90, they were infact not /.igned by the accused on that date and that they were signed on 21-11-90. That the accused was led outside by a- Prison V^rder and

there asked to sign.the document which he did. On this

ground Mr. Orach who appeared for the accused on private brief invited me to reject these documents.

Under section 24 of the Evidence Act as monded by Act 2/85, a Police Officer of and about the rank of an Assistant Inspector is empowered to take from an accused person who opted to make a statement after a charge and caution is duly administered to him by the officer. Such a statement can be effectively challenged if it can only be shown that no charge and caution was first administered to the accused by the appropriate Police Officer in a language which the accused understands.

In the instant case, there was no such complaint. The complaint was about the date when the document was signed by the accused. It was emphasised that the document was signed by the accused on 21.11.90 because the colour of the ink used by the accused to endorse his signature differ from the colour of the ink used in writing the rest of the document.

I am of the view that even if this claim is right, it does not invalidate the statement which was otherwise voluntarily made by the accused after a due charge and caution was administered to him by the appropriate officer in a language which the accused understands and at the time of signing the same by the accused it was first read over to him. Once all the above is complied with, it is in my view imm. aterial when the accused endorsed his signature on the document.

In the instant case, there was no complain from the defence that the document was not first read over to the accused before he endorsed his signiture. In those circumstances I um of the view that the charge in elabion statement was volunterily made by the accused to the Inspector of Police after a due administration of a charge and caution and that it was read over to the accused before he appended his signature on it. It is therefore a "valid document."

•The defence further .\rgi?.ed that there were serious lucunas in the evidence of the Prosecution to prove that it was the accused who caused the de<xth of the deceased. They pointed out that the prosecution had put the defence on notice in the summary of evidence that the accused assaulted the deceased with a stick and that the stick /ould be produced in evidence at the trial but that this was not done. Counsel submitted that the prosecution should have led evidence to show the existence of the stick but that even this was not done. Secondly that the prosecution have failed to produce Post biortem Examination Report to show the precise cause of the deceased's death so as to rule out the defence claim that the deceased might have died from poison or from a combination of a cronic alcoholism and a long TB illness. Counsel \* submitted that the absence of the stick, the absence of the-Post I.iortem Examirition Report, showing the precise cause of death of the deceased arid the absence of evidence as to the injuries sustained'by the deceased created serious gabs in the prosecution case. That in the face of these gabs, the prosecution has' failed to prove beyond reasonable doubt that the accused unlawfully caused the death of the deceased.

I considered the above argument and I am of the view that the case of Rajabu v. Republic above was cited out of context because it is irrelevant to the facts of the instant case. The Rajabu v. Republic.case decides on the Principle of the Recent Possession whether possession of an article which is directly connected with a crime leads to irresistible inference that the Possessor of the article'participated in the.crime.

He relied on the case of Rajabu. v.\_/.:epublic .(..1.97,0,1

In that case a spent catridge for a shortgun was found at the scene of a Robbery where a person was killed. Several months later the appellant was found -ith a shortgun. It was. prove'' positively '.'hat the spent catridre • ns fired from

that shortgun, It vis held o? appeal that ;o draw the inference thrt the. ppellant participated in the Robbery was affected by lapse of time.

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In the instant Cc'se the prosecution- case does not depend on Pne doc tri of Recent Possession, It depended largely on the confession made by the accused Of his assault of his wife to IIathe-; Owiny and on his charge --.nd caution , . ^T rr • . (. J ^r ^I statement made to hhe Inspector of Police PV/3. In the statement he admitted that he killed his wife though accidentally. P'"1 did not indicate in hi's evidence that the 'accused in his' confess! ,n told him the kind of weapon used in beating 'the ' wife. This witness gave his evidence in a straight forward manner. He w s never shaken in crossexamination. Like the Assessors I find him a truthful witness. I believe him and I find that the accused indeed made the confession to ;he witness. Similarly I also find that the charge and caution statement was voluntarily, made by the accused to the Inspector ot Police Onapa after a due caution having betn administered to him.

As regards the absence of the Post Mortem Examination Reportj I told the -Assessors as I direct *my* mind in this judgment thi.it Post Iiorte™ Examination Report is the best evidence to prove the cause of death but it is not the only one. Cause ofideath can still bo proved beyond reasonable doubt by some other evidence than modicvl evidence (see Republic v. Cheya ¹ nd -A nor (T\$73)'-EA 5 00).

In the instant case, the evidence of P'.?1 shows con-. fession -of the accused to him that the accused assaulted his wife before she died. 'This confession was corroborated by t)ae charge and caution statement made bp the accused to an Inspector of Police OnapaL In .the statement the accused admitted that he killed his wife though accidentally. The evidence of P '1 further shows that fter the report of the

-Accused, he -acco'y anied the accused to n/.e. place where the wife Weis lying, and there he found tha\*-; the condition of the deceased was "bad. That in trying to lift her, he witness. had seen the deceased at the funeral place seated ' in a tent 'with' other women well and drinking enguli\* found blood' on' her lieft ear. Yet during the day the

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There was no retraction confessions hence there is no need for corroboration or repudiation of the above Ho.we.yer,-'the c onduet of the. deceased may. provide corroboration if. needed. The. evidence of P'⁷¹ . shows that when.he,raccompanied the accused to the place where ' the deceased was lying, the accused refused to assist in carrying her home. Further that v/hen the .witness went to the home of the.accused that night to inform the children of the deceased of the condition of tfcp.ir. mother, the accused refused to. inform his children of that .fact claiming that his children/-/quid not believe him,./\_^he following morning when the.condition of the deceased was, critical the accused went away from, his home ostensibly that he was returning to the funeral for a meeting.

Mr. Orach submitted that the conduet of the .-accused was consistent with innocent and referred to the case of Doroviko Bangizi v. Uganda (1976) UCB 41,

This case is distinguishable from, the case of JDoroviko Bangizi v. Uganda (1976) UCB 41 on their facts in that in Bangizi the conviction was depended entirely r • ' on the undoubted strange behaviour of the appellant. In the instant-case the above strange behaviour of .the accused are in addition to the other incriminating evidence of confession of <assau.lt> by .the accused on t: 0 deceased. Considering al3. the evidence on record nd the

unsworn statement of Tae accused, like the gentlemen my ' Assessors, ^I un s-wsisfied in/mind without any doubt, that

## unlawfully

tng accused/ecujc<. cne ds. 'uii of the escc-c-soc .c-.isa Lamunu by unlawfully assaulting her. I reject the accused's claim that the-deceased died from a natural cause -nd second' to that extent I v.gree with the gentlemen Assessors that the prosecution has proved beyond'reasonable doubt ingredient No.2.- Conoocuently I find the accused guilty of unlawfully causing the death of Edisa Lamunu as charged c/s 182(1) of the Penal Code -Act.

G.u. Okello.

J. 26/11/1990.

## . Ogwal-Olwa• • .

Accused is a first offender but I pray for a- deterrent sentence since be has another wife more so since he has not shown'us any " repentehee

Oyarmoi;-- . ....

It is rightly stated that the convict is a first offender. He has been on remand for a period of one year. He is'an old man. of 65 years -of age. The convict is suffering frov1 TH of -.hich he is undergoing treatment as out patient. The convict fully regrets having killed his dear younger wife who has now left him with six children to care for. The convict is also to cater for seven other children of another wife these thirteen children are in school and the convict was the one paying their fees. The *1 . ,* convict was also Coring for his'very elderly mother. There is now no body taking care of his home. I pray for leniency. S.ent ence

> The Principle of sentence is really to adequately. reflect the disapproval fty the majority of the public\*of a particular crime. The great majority of the public in this Pegion no doubt disprove 'unlawfully taking ones life

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by another, This was indicated as the records show that the- villagers in the accused's own village expressed their disapproval by attempting to-kill him after learning, that he killed his wife. The accused has not shown any reason which prompted• him to. do what he did, ' Lien should have the sense to treat their wife as equal partner in that •i- \*• ■» Partnership of Marriage. I have taken into consideration the mitigation facts given by the learned counsel for the defence. But considering the circumstances of th,e'.case as .a whole, I consider that five years imprisonment is adequate reflection of the public disapproval oi the offence. So I sentence the accused to five years imprisonment,

- G. M. OKELLO. J.

26/11/1930, '