[1996] UGHC 50

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## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SESSION

## HOLDIN.4T. GIffiU

CRIMINAL SESSION CASE NO. 278/96 UGANDA .............. -VERSUS-PROSECUTION

SEBESTIANO OTTI ACCUSED

BEFORE? THE HONOURABLE MR. JUSTIC^E GJ. OKELLO

## JI UP ^G ^E MEN ^T ,

It was alleged by the prosecution that on the 22nd day of June ¹⁹⁸⁸ at Bura Village, Chua County in the Kitgum District, ^Sebastin⁰ Otti murdered Binayo Langeta. Arising from the above allegation, the accused was indicted on a charge of murder contrary to section 183 of the Penal Code Act.

On arraignment, the accused pleaded not guilty. By that plea the accused set in issue a3! the essential elements in the offence charged. That meant that the prosecution had to prove each and every essential elements in the offence charged to secure a conviction. The standard of proof required to secure a conviction is beyond all reasonable doubt. This burden does not shift onto the accused because an accused does not bear the burden to prove his innocence. This principle was laid dovzn since the decision in V/0olmington -vs-DPP .. C1935)- AC 462^> Even recently, the 1995 constitution, presumes every person charged with a criminal offence innocent until proved guilty or until that person has pleaded guilty (Article ²⁸ (3)(a) of that constitution).

The essential elements requiring proof beyond reasonable doubt to secure a conviction in an affence of murder ares-

- 1) that the person alleged to have been murdered is dead. - 2) that the death of the deceased was unlawfully caused.

- 3) -jjhat whoever caused the death of the deceased had malice aforethought\* - 4) that it was the accused who so caused the death of the deceased.

The prosecution called the evidence of five witnesses to prove the above elements ⁴

On whether Binayo Langeta is dead and as to who caused his death, there was no dispute. The accused conceded that the deceased was his brother in lav; having married the accused younger sister. That he (the deceased) is dead and that his death was caused by the accused. Otherwise the evidence of Jacklyne Alanyo (pw3) and that of Bichard Komakech (pw4) showed that the deceased was their father. That they saw his dead body on 22nd June ¹⁹⁸⁸ and later took part at his burial. The above evidence was also supported by the evidence of Jebidayo Adide (pw5) the traditional leader who testified that he knew the deceased. That on information, he came to the deceaseds' home and saw his dead body then lying in his house in 1988. Later he also attended the deceased's burial.

Like the accused, Becelari Arnone (BW2) also confirmed in his testimony that he knew the deceased who was his brother in law. That the deceased had married his younger sister. He confirmed that the deceased died in 1988 and he saw the deceased's dead body.

There was no medical evidence to prove the deceased's death and the cause of it. But it was hold in Chey^a and Anor -vs- Republic. (-1973) EA ⁵⁰⁰ that though medical evidence is the best evidence to prove death and its cause, death could still be proved beyond reasonable doubt by other cogent evidence in the absence of medical evidence.

It follows tliereforc that though there was no medical evidence in this case, the above evidence shown above are cogent enough and

from them like the Assessors I find that the deceased Binayo Langeta is dead.

As to who caused his death. I have already pointed out that the accused himself admitted in his sworn evidence that he was responsible for the cause of the deceased's death. I find the above admission sufficient to show who caused the death of the deceased. Accordingly I do find as a fact that the death of the deceased was caused by the accused.

On the question whether the death of the deceased was caused unlawfully, it is important to bear in mind that in homicide case. death is presumed to have been caused by unlawful act or omission unless it is shown that it was caused by accident or in circumstances which make it excusable. This principle was laid down in the case of R-v-Gusambizi Wesonga (1948) 15 EACA 65.

Death is excusable when it is caused in self-defence. In the instant case, the accused pleaded self-defence. For this defence to succeed, the following elements must exist:-

- $\overline{a}$ there must have been an unlawful attack on the accused. - b) the accused must have as a result believed on reasonable ground that he was in imminent danger of death or serious bodily harm. - $d$ ) He must have believed that it was necessary to use force to repel the attack made upon him. - $\overline{a}$ the force used by the accused must have been reasonably necessary to prevent the threatened danger.

In the instant case, the accused told court that he shot the deceased at the Bee-hive in self-defence not knowing who he was but only as a thief who had charged towards him. That version was rejected by Jacklyne Alanyo ( $_{\text{Dw3}}$ ). She testified that she was present from the beginning to the end of the incident and that she saw the accused shot the deceased at the latter's home well knowing who he was

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shooting and that the reason for which he shot the deceased was that the deceased was interfering with the properties of the accused's father. The accused's father was also the father in law of the deceased. He had since died..

Mr. Kabali the prosecuting counsel submitted that self-defence was not available to the accused because the story of the accused was not true. He argued that it was not possible for the accused to have seen that the deceased was armed with a panga as claimed because it was dark. Secondly, counsel argued that the accused and his witness had opportunity to avoid confrontation but that they never tried it. He contended that the accused knew the deceased and deliberately aimed at and shot him for the reason given by Alanyo. He accordingly invited court to believe the version of the story as told by Alanyo PW 3.

Mr. Olaa on the other hand replied that the evidence of Jacklyne Alanyo PW 3 and of Richard Komakec PW 4, should be treated with much caution because they were the children of the deceased and have strong motive to tell lies against the accused to square up with him for the death of their father. Counsel submitted that such evidence should not be believed unless it was corroborated, but/there was no corroboration in this case. He cited Kosimiri s/o Wana -vs-R (1951) 18 EACA 148.

Having heard the above able submissions from the learned counsels it is necessary to examine in more detail the evidence relating to the circumstances in which the deceased's death was caused. The tη prosecution version as/how the deceased's death was caused was told by Jacklyne Alanyo (PW 3) daughter of the deceased. She testified that on the night in question she was at the home of her grandmother, who is the mother of the accused. She used to sleep there. Then the accused and his brother Beceleri Amone PW 2 came on information that somebody was stealing honey from their father's Bee-hive.

Accused was armed with a "bow and arrow. When she told them that it was the deceased who was warming the Bee-hive as he had Been doing before, both the accused and Beceleri became ferious\* The accused threatened to kill the deceased for interfering with his ('accused) father's property. According to PW 3, Beceleri also encouraged the accused to kill the deceased even in the morning. Then the accused and Beceleri left for the place where the Bee-hive was. The witness and her grand mother also followed them. Alanyo further testified that at the Bee-hive, they did not find any body. The deceased had already returned to his home. According to Alanyo's testimony, on finding that the deceased was not at the Bee-hive, the accused started to run towards the home of the deceased while saying that even if the deceased was at home he would have to kill him. Seeing thatj she followed him and her grand mother also followed. That on the way, her grand mother and her pleaded with the accused not to kill the deceased but that the accused refused. Alanyo testified that there was moon light but it was dim. As they approached the deceased's home, she saw her father seated on a log at the fire place in the compound. Then she shouted loudly why the accused wanted to kill her father. On hearing that, PW ³ said, her father got up from where he was seated and moved near a grannery and stood there. But the accused who was already in the compound aimed his arrow and shot the deceased in the chest. Then she heard her father cried out "I am dead." ^id ran some ⁸⁰ meters and fell west of the compound. After that PW ³ said, she started to make alarm and crying. But that accused came and started to assault her for crying.

The above evidence was supported by the evidence of Komakec Richard (PW 4) who testified that when he answered the alarm made by Alanyo, he found the accused assaulting Alanyo meanwhile his father was groaning a few distance west of his compound-. Later

when he and his brother went to where their father had fallen, they found an arrow was sticking in his chest.

The above evidence clearly does not reveal any of the essential elements of the defence of self-defence as shown above. But the version of the story as told by the accused is different. He gave evidence on oath in his defence. In his evidence, the accused told court that on the fateful night he was at his home. But that on information he got out and confirmed that there was fire on the tree where his bee-hive was. He suspected that someone was stealing his honey from the Bee-hive. So he contacted his brother Beceleri Amone and they proceeded towards the place where the Eee-hive was to arrest the thief. For that mission he was armed with a bow and arrows while his brother only had his walking stick. When they reached their mother's home, they were joined by their old mother and their niece Jacklyne Alanyo (PW 3). Their aged mother has since died and did not testify.

According to the accused, at the Bee-hive, he demanded several times for the person on the tree to identify himself but in vain. Instead, the unidentified person raised up the grass torch he had and picked a panga from on top of the Bee-hive then dropped the grass torch down. The accused testified that he saw the panga picked by $\mathcal{X}^{\mathcal{A}}_{\mathcal{A}}\mathcal{A}^{\mathcal{A}}_{\mathcal{A}}\mathcal{A}^{\mathcal{A}}_{\mathcal{A}}$ the unidentified person with the aid of the grass torch which was raised up. Otherwise it was pitch dark. Then he heard, clicking mettalic sounds the un identified person hit the panga against the tree as he climed down. The accused further told court that his brother Beceleri Amone who also heard the clicking mettalic sounds warmed him to be careful as the un identified person could be dangerous. According to the accused, he heeded that warning and moved backward 15 meters east of the tree on which the un identified perwas. That on jumping down, the unidentified person<br>son/charged towards him. Then for fear he shot the charging person with an arrow. At that impact the accused said, the charging man

$\mathsf{G}$

turned and ran towards home. Shortly later, they heard cries from home. When they rushed home to find out what the cries were all had about, they found that the person he/shot was infact the deceased. It was all admitted that the place of the Bee-hive was two hundred meters east of the deceased's home.

The above evidence was supported substantially by the evidence of Beceleri Amone, DW 2, who stressed that the deceased was shot at the place of the Bec-hive and that because of darkness when he shot the arrow the accused had not known that the charging person was the deceased but only that it was a thief.

The crucial point for consideration is whether the deceased was shot at the place $\quad \text{ of } \quad$ the Bee-hive and in circumstances described by the accused or he was shot at his own home in circumstances described by PW 3. Kasimiri s/o Wana -vs- R above, to which counsel for the accused referred me indeed laid down a principle that where a prosecution witness has proved motive to tell lies against an accused, the evidence of such a witness must be treated with caution and should not be believed unless it is corroborated.

In that case the appellant with one Y was tried for murder. The victim had received an injury on his chest and another injury on his head. It was the head injury which caused his death. The Judge found that there was no common intention between the accuseds. He accepted the evidence of four witnesses for the prosecution that it was the appellant who caused the head injury and convicted him of murder. Y was convicted of assault.

One of the four witnesses whose evidence was accepted was the wife of Y; the other was his brother and another was his brother in law. These witnesses were related to Y, and by their relationship with Y, had strong motive to fix the guilt on the appellant for the fatel blow in order to save Y.

$\bf 7$

The Trial Judge did not consider that proved motive. On appeal, the conviction for murder was quashed.

In the instant case, I agree with counsel for the accused that both PW 3 and PW 4 were children of the deceased and by that relationship would have strong move to lie against the accused to square up with him over the death of their father. However, there are some other aspects of this case which tend to show which of the two versions is truthful. For example, the nature of the injury inflicted on the deceased. PW 5 the Traditional Leader described that the arrow pierce from the chest to the back. This supported what PW 4 said of the injury. Again it was common ground that the Bee-hive was 200 meters east of the deceased's home. DW2 further admitted that the deceased fell 20 meters west of his home. If the version of the defence is anything to go by, then it meant that after receiving such a serious injury, the deceased with the arrow sticking through him from chest to back had run 220 neters before falling doym. That is not possible and the evidence on record showed that the deceased died shortly after the injury that night. For the above that reasons, I agree with the assessors/the deceased was shot at his own home and in circumstances described by PW 3. I therefore reject the defence of self-defence put up by the accused as a mere sham aimed at wriggling out of the problem he finds himself entangled. The accused thus caused the death of the deceased unlawfully.

This now leads me to consider the question whether the accused had the necessary malice afore thought when he caused the death of the deceased.

In <u>R</u> -vs- Tubere (1945) 12 EACA 63 it was held that in deciding whether malice aforethought has been established or not, court was to look at the surrounding circumstances of the particular case, that is the conduct of the accused immediately before and immediately after the incident, the nature of injury inflicted, the weapon used

the conduct of the accused immediately before and-, immediately after the infliction of the injury, existence of malice aforethought does readily flows.

I disagree with one of the assessors who advised that court finds that malice aforethought was. not adequately proved because the accused was angered by the theft of his honey. My reason for that is that the time the accused took to run from the place of the Bee-hive to the home of the deceased about 200 meters away had given him ample' time for his passion to cool down. That fact was not considered by the assessor'. 'If he did, his opinion would have been different. Bor that 1 find that the killing was committed in cold blood and with malice aforethought\* In those circumstances 1 find that the prosecution have proved its case against the accusal beyond reasonable doubt. He is accordingly convicted as charged and sentence to suffer death in the manner authorised by law.

11— ( V-G. M. OKELLO

Judge

21st August, 1996