[1993] UGHC 46

## TEE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA - . AT KAMPALA HOLDEN aT GULU.

HIGH COURT CRIMINAL SESSION CASE NO.281/92 (Original Criminal Case No. MG. 364/91)

UGANDA. ...... ......... ........ ............ . PROSECUTOR. - versus

OTIM GABRIEL OGOLA ............. ..... ACCUSED.

BEFORE: THE. HONOURABLE MR. JUSTICE G. M. OKELLO.

## ^J ^U ^D ^G IVx ENT

The accused, Otim Gabriel Ogola was indicted for the murder of Maurina Langwen contrary to section 183 of the Penal Code Act\*

The particulars of the offence allege that Otim Gabriel Ogola on or about 20/1/90 at Lalar village, Alero Division in Gulu District murdered Maurina Langwen.

It was the case for the prosecution that the accused and other rebels attacked the home of Marko Odongo on the 20/1/90. They arrested a number of people from the home, assaulted them using panga, led the deceased and other people away from the home and hacked the deceased savagely with a panga. She died later from the injuries so inflicted on her. The accused who was known by his victims was identified by them.

In 1991•.the accused surrendered under the amnesty and started to stay in Gulu Municipality. Later one of his victims found him in town and reported the matter to the security authorities. In consequences, the accused was arrested and eventually indicted for the murder. He denied the charge and pleaded alibi.

To secure a conviction for murder the following essential ingredients must be proved:

- (1) that the deceased is dead; - (2) that his death was unlawfully caused; - (3) that the death was caused by the Accused; - (4) that in causing the deceased's death the accused acted with malice aforethought.

The burden to prove the above ingredients lies squarely on the prosecution. This burden does not shift to the accused. An accused does not bear the duty to prove his innocence. The standard of proof required to secure a conviction is beyond reasonable doubt. The above is an established principle of our criminal law. See Leonard A sineth v. R ( 1863) 206 at 208.

In the instant case, there was no dispute that the deceased Maurina Langwen is dead and that her death was unlawfully caused. Counsel for the defence conceded those facts in his address to me. Apart from the above concession, there is overwhelming evidence to show that the deceased Maurina Langwen is dead. The undisputed evidence of PW1 showed that the deceased was his wife. That she died on 20/1/90 and was buried The above evidence was corroborated by the evidence of Agness Ajok PV/2. Her evidence showed that the deceased was her mother-in-law. That the witness saw her dead body which was later buried.

There was no medical evidence as to the cause of death . No Post Mortem examination was carried on the body. This was due to the insecurity then in the area. Rebel activities were very rampant in the area and transport was not available

The law is however that where there is no medical evidence \* death can still be proved by some other cogent evidence. See Republic vs. Cheya and Anor (1973) && 500. .

In the instant case, PW-j testified that he was the husband •of-^the deceased. That he saw her dead body and buried it. PV\*2 also testified that the deceased was her mother-in-law. That she saw her dead body and was buried. Both testified that prior to the assault on her, the deceased was healthy.

From their evidence like the gentlemen Assessors, I find that the deceased is dead.

The prosecution contended that the deceased's death was unlawfully caused. The prosecution relied on the presumption of the law and on the evidence of PWi and PW2>

It is trite laft that in homicide cases, death is presumed to have been unlawfully caused unless it is shown that it was accidental or that it was excusable. See R v. Gusambizi Wesonga (1948) 15 SAGA 65• ■■■ —— ........ ........... ■■■ v ---

In the instant case, there was no evidence that the death of the deceased was either accidental or justified. Leath is justified if it was committed in self defence. There was no evidence that the death of the deceased was caused in self defence

On the CQntrary the evidence of PW\*i showed that the death of the deceased was unlawfully caused. That she was arrested by an assailant who led her away from home and hacked her with a panga brutally. The above evidence was corroborated by PV/2 - Agnes A'jok.

From tho above evidence, like the gentlemen Assessors, I find that the death of the deceased was unlawfully caused\*

The next ingredient is that it was the accused who caused the death of the deceased. The prosecution contended that the accused caused the death of the deceased. The prosecution relied on the evidence of identification of pW-j and P^2.

The law regarding identification by a single witness is that 'Where the prosecution case depends on the evidence of identification by a single witness, the court must first consider

the conditions under which the identification was claimed to have been made\* Where the conditions favoured correct single identification, the court can convict on the^evidence of identification. But where the conditions did not favour correct identification, the court must look for corroboration single . before acting on the^/evidence of identification. This is to avoid acting on mistaken identity. See Uganda -vs-Francis Ayisu (1982) HUB 7,

In the instant case the evidence of identification was given by two witnesses - Marko Odongo (P'<1) and Agnes Ajok PV/2.

PV/-J testified to have known the deceased since 1985. They had lived in the same village. He had thereby got familiar with the accused's voice. The accused himself admitted in his evidence that PW1 knows him very well. That he too knows P'^1 very well. They had known each others since 1985.

PW1 testified that on the material evening he first identified the accused by his voice and later by his face when he saw him with the help of the light from the camp fire and later from the burning houses. Tfoat at the camp fire the accused came as close as less than one meter away from\him arid took a fairly long time with them. He was :removing the shirt from Oryem and later tying Oryem's hands using the shirt. That this gave him (PV/i) ample time to identify the accused whom he had known before.

That while at the camp fire after tying Oryem'^s hand, the accused turned to him (P^l). He tried to tiie his hands but the sleeves of the Kaunda shirt was too shor\*»b. Then the accused started to cut him with a panga. That at\* this stage, Oryem escaped and ran away. The accused left him and chased Oryem. In the meantime, he (PWf) also escaped and hid in a

nearby bush. When the accused returned from chasing Oryem, he set all the three houses in the homestead on fire\* From where he hid himself,• he (witness) was able to identify the accused with the help of the- light from the burning houses.

P-^2 \*• Agnes Ajok testified that she had known the accused since 1588 when she was brought to the home of pV/i foliovang her marriage to his son one Oryem. That there was a foot path which passed through the home of P\*/1. That the accused used to pass through that path\* That that gave her opportunity to get to know the accused. The accused himself admitted that there was such a path and that he used to pass through though he denied that he had known pW2 or that pV/2" could have known him one sidedly. PW2 testified that on the niaterial night, she. identified the accused by the light' from the. burning houses from where she was waiting for the^ accused under the guard of the deceased's colleague. Then again by the light from the stars while they were on the way when the accused caught her by the hand and pushed her infront of him\* ...

Mr, Ogwal-Olwa invited court to believe the above witnesses and to find that the accused was accurately identified. Mr. Atare submitted for the accused that the conditions under which PV/'1 claimed to have identified the accused did not favour correct identification. That the sudden appearance of the assailant must have frightened P^1 and thereby affected his capacity of recognition. Secondly that the position where the witness hid himself and claimed to have identified the accused by the light from the burning houses was not stated to be free from obstruction of visibility.

As for PV/2, the learned counsel dismissed her as being unreliable. That her evidence was contradictory. He invited court not to believe the above evidence of identification.

In my view the accused was properly and accurately identified by the two witnesses from different positions. Both witnesses had known the accused before the incidents The deceased himself admitted that Idarko Odong -Wi knows him very well. That he had known him since 1985. I am satisfied that at the camp fire ^fthere was sufficient light from which P^1 could have identified the accused whom he had known before., The accused took a long time at the camp fire where he came very close to PW-|. That offered PW-| ample time and opportunity to properly identify the accused. Even if there was doubt as to the clarity of his vision from where he hid himself, PV?1 had ample time, light and opportunity at the camp fire to accurately identify the assailant.

PV/2 too had known the accused before the incident. She had known the accused since 1988. She had ample opportunity to identify the accused when she was placed under guard of the accused's colleague to wait for the accused who was setting the houses on fire>. Two of the three houses were burnt down before the accused came to where they (PV/2) and other captives were at the edge of the compound. That gave PW2 opportunity to identify the accused by the ample light from the burning houses. • Secondly when the accused finally came to them, he caught PVV2 by the hand and pushed her infront of him. In that •proximity in the clear night the witness had another opportunity to properly identify the accused whom she had known before.

The witnesses impressied me as truthful witnesses. They gave their evidence in a straight forward manner and answered questions put to them forthrightly. I therefore believe them. I find like.the Assessors, that the accused was accurately identified by the two. wit messesr

Having found as above, the alibi set by the accused must necessarily fail because he the accused could not have been at Amuru and at the scene of crime at the same time. This is humanly impossible. This now leads me to .the last ingredient of the offence. That is that the accused acted with malice afore thought when he caused the death of the deceased.

No conviction can be properly achieved for murder without establishing malice afore thought beyond reasonable doubt. (See Lokoya -ys- Uganda (1968) 332 at.. 334).

Malice aforethought has been defined under section 186 of the P\*C. A. The gist of the definition is that it is an intention to cause the death of a person, whether the person killed is the one intended or not. This is a mental element. As such it is difficult to prove . by direct evidence. But it can be gathered from the surrounding circumstances of the offence. These include the nature of the injuries inflicted on the deceased, the part of the body on which inflicted, the weapon used and the manner in which it was used. Use of a lethal weapon, struck on vunerable parts of the body of the deceased readily attracts inference of the existence of malice aforethought.

See Uganda -vs- No. 13026 P/C Wakhasa Solomon and 2 others (1984) HCC 29.

In the instant case the evidence of P'^1 and PW-2 showed that the deceased was literally butchered. She had several ¹ uncountable deep cut wounds all over her body. On her back at the .vertabroe was a deep long cut wound measuring one foot long.. This wound was so deep that tendon could be seen in it. P^'2 testified that the weapon used was a panga.

Clearly whoever inflicts such injuries on another must but be intending to kill his victim.

The prosecution further alleged that the accused was a rebel whose intention was to kill PW'ⁱ because he (Pb'i) was R. C. and therefore the agent of the Govenr^ent. Marko Odong testified that he was the Chairman RO.11. The accused denied that he was ever a rebel. That he was merely abducted by rebels in January 1991 and he escaped from them in March 1991 • Tha.t in 1990 he was with his parents at Amuru. That P'^1 fabricated the story against him because of the grudge' which existed between his father and PWl over a land dispute.

It is trite law that a fabricated alibi is capable of providing corroboration against the accused.

See (1) Abdalla and others -vs- Uganda Cr. Appeal No.9/78 (unreported)\*

(2) Moses Kasana -vs- Uganda - Cr. Appeal No.12/81 (unreported)\*

In the instant case the accused pleaded that he was never with the rebel in 1990. That he was at Amuru. Yet there is a Graduated Tax Ticket (Exh. P.2) for the year 1990. It was issued by Gulu Municipal Council in the name of the accused. It was found on him at the time of his arrest. It showed that the holder was a resident of Laroo in Gulu Municipal\* *j* Council. There is also an identity card Exh. P.1 in the name of the accused. It was found on him at the time of his arrest.. He admits it is his. The identity card purports to have teen issued to the accused by the Jago of Amuru in January 1991- But the identity card bears no signature or stamp of the Jago of Amuru. The identity card however shows that the holder was a resident of Laliya village of Gulu Municipal Council. There is also

a Resident Registration Card No. 162 dated 7/4/91. It was issued by the various RCs in Gulu Municipal Council to the accused. The holder was shown as a peasant of Laliya Parish. The above document (Exh. P2) showed that the accused was not a resident of Amuru in 1990 as he would like the court to believe. Even the identity card Exh. Pi shows that the accused was not a resident of Amuru in January 1991 as he claims. Why did he have to lie about his whereabouts in 19901 The possible answer is that he was a rebel and needed such documents to facilitate his movements.

The evidence of PWl and PV/2 showed that when the assailant who was later identified a^ the accused arrived at the home of ?Wi in the fateful averting, he warned that whoever ran would be shot. The accused testified that he was merely abducted by rebels. That during his period of abduction, between January and March 1591? he was assigned a duty to guard a rebel officer. That for that duty he was given a gun with which he later escaped and handed to the authorities.

The above is incredible. How could the rebels leadership place so much trust and confidence on a new abductee within such a short time\* The accused must have been an old timer in the group. In .those circumstances I do find that he was one of the rebels and attacked pW-ps home as the home of an RC official.

In the whole, T find that the prosecution has proved its case beyond reasonable doubt. The accused is therefore found guilty of murder as charged and convicted accordingly.

G. M. Okello

Judge

7.7.1993.

. Sentence; The a'ccused is sentenced to suffer death in the manner authorised by law.

GJu . G. M. Okello

Judge 7.7.1993. '