[1993] UGHC 68

# THE REPUBLIC ⁰⁷ UGANDA **•\*\*—ⁱ** ^m ii^^b -— **rnrm "in'■'■>**

## IN THE HIGH COURT OF UGANDA

#### CRIMINAL SESSION CASE NO. 1^7 OF 1993

UGANDA

## VERSUS

OPOKT JAPYEM

:: ⁱ ; ^s ::::::::::: :: ACCUSED

^z ::::::::: : PROSECUTOR

../2.

## BEFORE: THE HON. MR. JUSTICE G,M. OKELLO

### JUDGMENT

The accused and the deceased were related by marriage. The accused is married to the first cousin of the deceased. But it appeared that the relationship between the accused and the deceased was not the best. Accused believed that the deceased was mud-slinging him by saying that he (Accused) was sabotaging the marriage of the deceased's sister Seba < Angeyi (PW10)^o Under that back-ground, on 28/11/92 at about 7\*30 p.m. the deceased and his younger brother Odwok-Can (PW7) were returning from a visit to their said sister Seba who was reported sick. On reaching the home of one of their cousins Nancy Aceng (PW8), they found her standing outside in her compound and was talking to someone who was also standing near hei> It was already getting dark and they apparently could not recognise who their cousin was talking with. So the deceased enquired of his cousin as to who she was talking to whereupon the cousin replied that it was Opoki. From that apparently ennocuous inquiry, the accused reacted violently. He warned the deceased to stop talking about him and threatened that the deceased would that night find what he had been looking for. Then he (Accused) angrily ran to his house which was fifty meters away and returned **with** a panga. On seeing that the **accused** was approaching them in aggressive mood with a panga in-his hand, the

end his brother Odwok-Can smarted to run for their lives. Odwok-Can was leading and the deceased was following him. But the accused chased thfem\* and cought up with the deceased and assaulted him on the head with the panga. The deceased sustained a cut wound on the head He was rushed to Pakwach Dispensary from where he died the following day from the injury he .sustained in the assault, Consequently the accused was arrested and eventually indicted for the murder of the deceased Arenda Orochi C/S 183 PCA. He denied the charge.

It is needless to state that the- burden to prove the charge against an accused.person squarely lies on the prosecution. This is a cardinal principle of our criminal procedure. The standard of proof required to secure.a conviction is beyond reasonable doubt. To secure a conviction in any offence all the essential ingredients in the offence charged must be proved beyond reasonable doubt, For the offence of murder the followings are the essential ingredients requiring proof beyond reasonable doubt• —

- (1) that the deceased is dead - (2) that his death was unlawfully caused. - (3) that it was so caused by the accused. - (4) that the accused had malice aforethought when he so caused ths death of the deceased.

Thsre is overwhilming evidence in this case to show that the deceased Arenda Orochi.is dead and that his death was unlawfully caused. The » evidence of PW2 Ocham-ringa shows that the deceased was his brother. That on 29/11/92 he identified the body of the deceased to Dr. Ochora of Nebbi Hospital for purpose of post mortem- examination on it. The evidence of Dr. Ochora PW5 shows that on 29/11/92 he carried out post mortem examine.^ tion on the body which was identified to him by Ocham-ringa as that of Arenda Orochi. That externally, the body bore a deep cut wound measuring

4n x2" xl1\* On the foreheads He opinionated the cause of death ad Hypovalaemic shock due to bleeding from a cut wound on the forehead# PW7, PW.8, P>V9 and PW1O all testified that they knew the deceased and that he is now dead. That he died on 29/11/92 after an assault. on him by the accused with a panga. The law presumes that in homicide cases death is always unlawfully caused unless it is shown that it was accidental or that it was caused in circumstances which make the killing excusable. Killing is excusable when it is committed jn a self-defence.

The above presumption is a rebuttable one. In this case there was no evidence of rebuttal. Instead counsel for the accused conceded in his address to me that the deceased was dead and that his death was unlawfully caused. From the- above evidence I find like the Assessors that- the **V** deceased Arenda Orochi is dead and that his death was unlawful, caused.

That now leads me to the question who caused the death of the deceased? The prosecution contends that it was the accused who caused the death of the deceasedo In support of the above contention, the prosecution relied on.the evidence of Odwok-Can (PW7)» PW8, PW9 and PW1O. Odwok-Can described that when the accused flared up at them at the home PW8, ran to his home and returned with a panga. That though the deceased and him ran for their lives, the accused chased them and cut the deceased hard on . the head. Both Nancy Ace ng (PW8) and her daughter Jane Biywaka (PW9-) testified that they heard cry^o p'. Vu testified that she heard a cry "he has cut me" PW9 testified that she heard the deceased cried for help. That when she came to the scene, she found the accused

And the deceased on the ground with the accused on top of the deceased. He want punching the deceased whose face was already covered in blood. Seba Angeyi (PW1O confirmed the above evidence when she testified that she heard the deceased cried that "Opoki has cut me". That when she went to the scene, she found the accused and the deceased struggling on the ground. That the deceased\*¹ s face was covered in blood.

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.. A.

. accused himself doos not deny involvement in the scuffle with at the material time. He however, denied that he struck the deceased with a panga or that he caused the injury from which the deceased died. His version of the story as to how the deceased sustained the injury was that he was attacked by the deceased who cought him and they both fell down. That while he and the deceased were still on the ground, he saw Odwok-Can (PW7) pulled a £anga from a bundle of grass near the house of Nancy Aceng (PW8) very c^2seto where the scuffle had started. That when he saw PW7 pulled that panga. he got up and rushc ?. f ?r the panga because he feared that PW7 might cut him with it. That he held the blade side of the panga while PW7 held the handle side and a struggle for the panga ensued between him and Odwok-Can (P\*»,7)« That in the end, Odwok-Can succeeded fully in f^ree/ pulling the panga from him cutting his (Accused\*s) fingers in the process. The evidence of PW6-Dr. Agemo who examined the accused after the incident confirms that there were cut wounds on the Jrd, 4th and 5th fingers of both hands. The accused was of the view that it was probably when PW7 forcefully pulled the panga from him that the panga cut the head of the deceased\*

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It is clearly a question of credibility whether to believe PW7 that the accused, deliberately aimed a blow and struck the deceased on the forehead or the version of the accused.

I did tell the Assessors tb.at in assessing credibility of a witness, his consistency or inconsistency is a relevant factor for consideration as was pronounced in the. case of Alfred Tajar Vs« Uganda (EACA)CR, Appeal was Pronounced in that case that grave inconsistency unless satisfactorily explained will usually but not necessarily result in the evidence of the witness being rejected. But that minor inconsistency unless

**ih** points to a deliberate false hood, usually does not result in the ev,\_denne **of the** witness being rejectedo In any case it is op°n to the court to find a witness substantially truthful even though he had lied in some particular respect» The above principle has since been consistently followed by courts in this country e,g< II vs. Uganda (UCA) (1978) HOB lol. N. Tenga v. Uganda(CAU) Or. Appeal."No.5/82 unre ported; .and Maj id u Boonajs JJgand:-. (CAU Cr. Appeal No 19/84

In the instant case: counsel for the accused attacked the evidence of PW7 for being inconsistent with the police statement of the witness on whether the witness saw the accused struck the deceased with a panga or merely heard the deceased cried-that he was cut. That in his police statement the witness stated that he heard the deceased cried out that he was cut. But in his evidence PW7 testified that he saw the accused struck the deceased with a panga. Counsel argued that as it was dark at the time the witness could not have seen the blow being struck. That because of the darkness at the time, PW9 had to come with *a* torch to see what happened. Counsel submitted that this is a grave discrepancy on a vital issue. That it shows that hhis witness is a liar and that his evidence should not be believed.

I considered the above discrepancy and I am of the view that despite that, PW7 is still substantially truthful. There are other evidence which give credence to his evidence. For example, the evidence of PW9 and PW1O who heard the cry for help and rushed to the scene found the accused still punching the deceased whose face was already covered in blood. PW9 emphatically stated that the panga belonged to the accused and that it was the very one which the accused was always using for his other work. She described **it** confi^entlya5, a neighbour. I do not therefore accept the theory advanced by the accused as to how the deceased was injured. Like the gentlement-

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**Assessors** I find that it was the accused who unlawfully **struck** th\* bloff which caused the injury from which the deceased died.. He therefore unlawfully caused the death of the deceased\*

No conviction can properly be obtained for murder without proof that the killer was actuated with malice aforethought I agree with the learned RSA. when he said that malice aforethought can be gathered from the conduct of the accused before, during and immediately after the killing, type of the weapon used, manner of use of the weapon, 'part of the body of the deceased on which applied and the nature \ the injuries inflicted. ^.vulnerable Use of a deadly weapon on .tty ?ble part of the body of the deceased. has been held to Steadily attract inference of the existence of malice aforethought.

The learned RSA referred me to Uganda v. Y. B. Kabandigj (1982) HOB 93, In that case the accused and the deceased quarrelled and almost fought in a bar. After wards the accused went away for thirty minutes. He charged *(* **his** dress, armed himself with a spear without handle and returned to the bar• He returned to the bar concealing the spear under his armpit and covering it with a coat. He then walked to the deceased and stabbed him on the chest and stomach three times. He then ran away. He was arrested® When asked by the Chief why he killed the deceased, the accused replied that the deceased had threatened to burn him in his house with all his family.

At the trial provocation w^s raised and argued. It was held that this • was not available because "the evidence revealed that the accused did not act in a heat of passion. The learned RSA equated that case to the present one and invited court to find that the accused had malice aforethought. That there was no defence of self-defence or provocation available to the accused•

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I.

It was submitted for the accused that the accused acted under provocation. That the accused testified that the deceased had insalted the accused using a vMlgar language and that this caused the accused to lose his temper and acted in the heat of passion.

Both Nancy Aceng PV/8 and Odwok-Can PW7 who were present at the spot where the alleged insalt was uttered by the deceased to the accused, denied that any such insult was made. The gentlement Assessors found that there was no such an insult and therefore no provocation. But there • is the passage in the police statement of Seba Angeyi PIV1O which was put to her in cross-examination. It tended to suggest that the deceased had uttered some words which the accused was offended by. PW1O was quoted to have stated in her police statement that she heard the accused shouting to the deceaseds-

"You Arenda, refrain from me. Do not talk to me in such manner"

It was argued for the state that even if that insult was uttered, the accused had ignored it and therefore could not have been provoked by it.

I appreciate the above argument. I also agree that the accused told court in his sworn statement that he ignored the insult because he treated the deceased as drunk. But the conduct of the accused did not show that he truly ignored the insult. That insult was vulgar and capable of constituting a legal provocation. That passage in the police statement of Seba Angeyi (PW10) makes it more likely that such utterances were made. With that slight possibility of provocation, it is unsafe to convict of murder. The weapon used was indeed a deadly one - a panga. It was used once on the vulnerable part of the body^head. But it is still not safe to convict for murder in view of that slight provocation. In disagreement with the Assessors, I find the accused not guilty of murder but of manslaughter c/s 182 of the PCA and convict him thereof.

G. M. OKELLO JUDGEc 10/12/93.

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