[1995] UGHC 61

## IN THE HIGH COURT OF UGANDA **HOLDEN** AT TORORO

## CRIMINAL SESSION CASS NO. **53/9jt**

PROSECUTOR UGANDA

## VERSUS

USED; PERSONS A2: A1: OJERE VIGEN THE HONOURABLE .<< Ji'J *^S*f¹0; ^j ^L « ^S

## JUDGMENT

were indicted for the offences of murder and aggravated robbery ALXFUNSI -OKSTCHQ (hereinafter referred to as A1 and A2 respectively) The two accused persons in this case namely; OUEIiE VICENT and

Both offences were allegedly committed by Ai and A2 with others, still at large on 22nd August, 1993? at Sop Sop village, in Tororo Districts .

When the indictment was read to the said accused parsons each\* one *of* them denied it, and this immediately set them on trials

<span id="page-0-0"></span>In a bid to prove its case against Al and A2, the prosecution . • ^I ^I [\\*](#page-0-0) ¹ ' ' ^t: ! • called the following witnesses: Robinah Awori (PTJ1)\$ John Mathieno (PW2); Alex Oketch (PWJ); Nosiata Athieno (PW4) and No\* 2o051 P/C Mawanga (PW§)\*

The accused persons made unsworn statements and called no witnesses.

Briefly, the prosecution case was as follows;

On 22nd August, 1993» while PWJ and PVrt- (his wife) were asleep jp»j| point^u many assailant among whom was one who carried house at their home in Sop Sop village, Tororo someone kicked open their door ⁴ At this a gun, made their way into the witnesseisf District, at around 3\*0Q\a\*;m^w

The said assailants began gun-man threatened that if the said witnesses did not comply, they demanding money from PW3 and PW4< The would kill them

The assailants then beat tho . -yxcLa ■t'h-oi? lie <-n®» •nsidc their house, ' .••ventv-l - ? JigomesiSf ² bed-sheets, and a Roadmaster bicycle, size 24 •

after the above, the assailantr took the two witnesses cutside theix\* house and made them lie down with their eyas facing the ground\* This took place very near the front door of the witnesses¹ house®

At this point, the deceased who was the brother of PV0 and was living in a house (with PW1) which was 60 metres away from PWJ's house, arrived at the scene of crime.• The deceased and PV/1 had heard the commotion nt PWJ's homej and as a result the deceased came to find,out what was happening®

'.-'KJ <9 teamed found PtfJ and PV/4 lying down .-s dosorlb d abcr . . azid A1 and A2 were standing behind them.

The deceased who called A1 and A2 by name then asked them what V'as happening; and because it was now cleai' that ihe deceased had recognised A1 and A2, A2 ordered the gun-man to shoot him®

The gun-man in turn short the deceased in the leg. The deceased fell down in PV/J's compound®

PWJ and PV/4 seized opportunity in the above state of confusion and escaped from their attackers® They went and hid some distance away ^I from their home,

At this point, PW1 who had heard the gun-fire -hen : .) de-ceased was shot at, decided to go to P>CPs and find out what all that was about®

. On arrival at PV/J1©, she saw the deceased lying down in the compound, bleeding and groaning with pain® He had a gun-shot wound on the thigh®

Except for the deceased, there was no one else in home® PW1 then went to the deceased who was still able to talk® The deceased

explained to her that when he arrived at PW3 home, he saw A1 and A2 and asked them what was happening, and because he had identified them, they told a gun-man to shoot him; and the said gun-man did so.

Later on, PW3 and PW4 returned home from hiding, and the deceased repeated to them what he had earlier on told PU1.

An alarm was raised, which was answered by a number of people and subsequently the deceased died at about 4.00 a.m. that morning.

A post-mortem examination was carried out upon the deceased's body on 24th August, 1993, by Dr. A. G. Othieno and its results were received in evidence as Exh. "P. " during the hearing of this case.

Subsequently, the deceased was buried at his home in Sop Sop village. A1 and A2 who were then hiding, did not attend the said. burial.

The above apart, the said offences were reported to PW2 (who was the RC.2 Chairman of the area) early on 23rd of August, 1993, and later to the Police; and as a result A1 and A2 wore arrested.

At the end of the prosecution case, I ruled that a prima facie case had been made out against the accused persons which required them to come to their respective defences. I did not give any reasons for deciding so at the time, but I promised that I would do so now; and below are my reasons.

I was of the view that the evidence of P73, $P74$ , and PW1 had implicated the accused with the offences in issue and it was necessary now for the accused persons to come and say something in their defence. (See R. T. Bhatt v R $\sqrt{1957}$ Z E. A. P.332; Wabiro alias Musa v R $\sqrt{1960}$ 7 E. A. P.184; Uganda v Alfred Ateu / 1974 7 HCB P.179; and Kadiri Kyanju and others v Uganda $/1974$ 7 HCB P.215).

After explaining to $\Lambda$ 1 and $\Lambda$ 2 the options they had under section 71(2) of the T. I. D, both of them decided to make unsworn statements.

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^I In brief, A.1 denied the offences in issue and told court that on the night in issue, he was at home; and when they heard the alarm at PWJ's home, A2 went to answer it\* He came back later and told them that the deceased had been killed\*

A1 eventually went to the deceased's home and saw the deceased's body. However, after that, PWJ and some other relatives of the deceased menacingly went to A11s and A2's homes and stole their cow and slaughtered it for the deceased'^s 'funeral arrangements\*

The above events filled Al with fear and so³ he decided to go 0 in hiding\* Later on, he was arrested and charged with the offerees ini issue• .

A2\*s defence was also a denial of the offences in issue, and an alibi similar to ill's\* He told court that on the 'night in issue, f : .1 he answered the alarm at PV/J's home and found that the deceased had been shot at.

Later on, he helped in taking' the deceased back to his home where he d£.ed at 5«00 a\*m\*

However, subsequently A2 was surprised when he returned to mourn the deceased's death to find.that he was unwelcome\*

He kept away and attributed the said animosity to a land dispute ;which existed between him and PWJ\*

Eventually, when he went to the sub-county headquarters and reported the above matter, he was told to go to the police\* And while 'at the police, one of his cows was stolen and slaughtered for the deceased's funeral arrangements\*

In his final.submissions, Mr\* Natsomi requested court to acquit the above accused persons because in his view the State had failed to satisfy Court that A1 and A2 \$ere correctly identified as participants in the crimes in issue\*

Mr. Khaukha (counsel for the State) did not agree. He was of the view that PW3, correctly identified the accused persons^T and that all the -crth-er evidence also pointed to their guilt. For example, the dying declaration given by the deceased to ^P'U" and Pl/4 and the disappearance of the accused persons soon after the offences in issuer

He finally urged to convict both accused persons in respect : of the offences in issue.

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In summing up to the assessors, I explained to them, among other , ^r i|^h things, that the burden of proof in criminal cases lay upon the prosecution to prove the guilt of the accused, and that the said burden never shifted to the accused even in a case like this one where the accused persons put up the defence of alibi. (See Uoolmington ^v DPP (1933) AC, 462; PTE Bjgirwa Edward v Uganda Cr^. , App^a No. 27. of ¹⁹⁹²⁵ Okello ^t Republic 7^1963 7 ^E.^A^W 553; Ndyayatoa and ² others ^v Uganda c/s Cr» Appeal No^c 2/77 reported in th^e ffCB 13/; Anesith ^v ^R /~~¹⁹⁶³ ⁷ E. A« ²⁰⁶ and Sekitoleko ^v Uganda /~"^9.6.7 / ^Et. A. 53)<\*

iiOld I further pointed out to the assessors that the quantum of probf 1-!" ! in criminal cases is proof beyond reasonable doubt. (See Woolmington;| • ^v DPP Supra). tl

In order for the prosecution to succeed to prove the following things in relation to in this oase, they!have the offences herein.

As far as count ¹ is concerned,

- (a) that the deceased is dead; - (b) that the act which caused his death was unlawful; - (t») that such act was actuated by malice aforethought on the part of those who caused it; and - (d) that infact, it was the accused persons who caused that act.

As far as count II is concerned,

(a) that there was theft of property capable of being stolen on the night in issue;

- $(b)$ that violence was involved in that theft; - $(c)$ that there was use of, or threatened use of, a deadly weapon at the time or immediately before or, immediately after the said robbery; - $(d)$ that the accused participated in the said robbery.

I will deal with the said ingredients in the order they have been presented above.

As far as the first ingredient in count one is concerned, the State relied on the evidence of PWG who testified that as the Medical Superintendant of Tororo Government Hospital, he knew Dr. A. G. Othieno who was working under him.

He then confirmed that $Exh$ . "P.1" which was a post-mortem report dated 24th August, 1993, and carried out by Dr. A. G. Othieno on the dead body of the deceased (one Francis Oboth Othieno) bore Dr. A. G. Othieno's signature which PW6 was familiar with.

According to the said report the deceased's body was examined on the 24th of August, 1993. Dr. A. G. Othieno found on its right thigh a gun-shot wound measuring $6" \times 5" \times 6"$ . The said wound caused a lateral exit wound measuring $7^n$ X $7^n$ X $7^n$ .

There was internal bleeding and the cause of doath of the deceased was found to be internal bleeding due to gun shot.

In my view the above evidence which was not controverted by the defence, is on its own enough to establish that the deceased is dead.

However, in addition to the above evidence, PV1, PV2, PW3 and PW4 testified to the fact that they saw the dead body of the deceased after his death and that they attended his burial which took place at his home in Sop Sop village.

The above evidence was also not challenged by the defence. Infact, in Mr. Natsomi's final submissions he conceded that they wore not disputing the fact that the deceased was dead.

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I am therefore willing to find as a fact that the deceased is dead.

As far as the second ingredient in count one is concerned. according to the case of R. Gusambizi Wesonga (1948) 15 E. A. C. A. P.65. the Court of Appeal for Rastern Africa (as it then was) held, among other things, that homicide is always unlawful unless it is accidental or excusable (i.e accidental in the sense where it is caused by pure for defence. accident or excusable where it is caused in self-defence/of another or defence of property on the part of the person causing it).

From PW3's and PW4's evidence, the deceased was killed on the night in issue, in PW3's compound after he went there in response to the commotion the attackers caused in that home. He asked the attackers what was happening. In turn they shot him.

The above piece of evidence was not challenged in cross-examinat I am therefore willing to find that indeed that was how the deceased met his death.

If that is so, then it is obvious that his death did not come about either by way of accident, or self-defence or defence of another or defence of property on the part of those who caused it.

As a result of the above therefore, I have no choice but to find that the act which caused the death of the deceased was unlawful. (Indeed, Mr. Natsomi counsel for the accused also conceded that much in his final submissions).

As far as the third ingredient in count one is concerned, accord ing to the case of Tubere v R (1945) 12 E. A. C. A. 63, malice aforethought (on the part of a person causing the death of another) can be infermed from the following things,

- $(i)$ the type of weapon that person uses in the fatal attack: - (ii) the nature of the injury inflicted upon the victim during the said attack;

$8 - 10/8$ (iii) the part of the body injured; and

(iv) the conduct of the attacker before and after the attack.

It would appear that where, the weapon used in the attack is a dangerous one; or the nature of the injury caused on the victim is serious; or the part of his body affected is vulnerable, Courts would much more readily infer malice aforethought than otherwise. Also conduct showing pre-meditation points to the presence of malice aforethought.

Li ^| In this case, according to PWJ and PW4, the attackers killed the deceased by shooting him with a gun which is ofcourse a deadly (.weapon. (See section 272(2) of the Penal Code Act).

Exh. ⁿP.1ⁿ tendered in evidence through PV/6 also confirmed the above fact, and that those wounds caused internal bleeding which was the deceased's cause of death.

Apart from the fact that the above evidence was not shaken by the defence, when it is examined against the guidelines in Tubere ^v ^R (supra), it is my view that the only reasonable conclusion one would come to is that those who caused the death of the docttnoed were actuated by malice aforethought; and I so find. Gtgain Mr. Natsomi, counsel for the .accused conceded the above in his final submissions).

As far as the fourth ingredient in count one is concerned, according to PV/J, despite the fact that the offence took place at night v/hen there was no moonlight, he was able to recognise A1 and A2 since the night was not dark. It was lit by bright stars. In addition, he knew the above named before the incident in issue. The two were his neighbours.

The above being evidence of a single witness who identified the accused persons in difficult circumstances (i.e. at night when there was:no light apart from star light, and during an attack involving

many attackers who had a gun) I warned the assessors and I do hereby warn myself against the danger of acting on uncorroborated evidence of such a witness. For indeed much as he may have been honest, he could also have been mistaken,

However, having alerted the assessors and mysolf of the above danger, I also advised them and I am advising myself here now that it is possible to act on the uncorroborated evidence of such a witness if court is satiffied that the witness was telling the truth and was not mistaken in his identification of the accused persons. (See Roria v Republic $\sqrt{1967}$ / E. A. 583).

As far am corroboration for PW3's identifying evidence is concerned, I considered PW1's, PW2's, PW3's and PW4's evidence to the effect that after the crime in issue was committed, A1 and A2 went. into hiding and did not even attend the deceased's burial.

Of course, that on its own would be suspicious conduct and according to Kaledio Terikabi v Uganda / 1975 7 HCB 63 can be used as corroboration against the accused persons herein.

However, the above conduct on Al's and A2's part should not be considered in isolation with the evidence of PW1 and PW2 which was to the effect that there was a land dispute between PH3 and A2 which at the time of the offences in issue had reached RC Courts on the one hand, and A1's and A2's explanation in their defences which suggested that they kept away because af fear brought about by the hostile conduct on the part of PW3's side which even led those people (on PW3's side) to raid A1's and A2's homes after the offence in issue and steal A2's cow and slaughter it for the deceased's funeral arrangements on the other hand.

In view of the above therefore, I am unable to tell with certainity that when A1 and A2 disappeared after the offence in issue, they did so because of guilt. They could have equally done so, because of fear caused by bad blood between the two families!

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.'orrohorates PWJ's evidence of identification in re.cpo~\*' of 4\*1 ond A2\*

On whether without corrobo '. cion I can still bo sure that PWJ's evidence of identification was net ristaken, I ha- this to say\*

Much as in certain areas of PWJ\*s evidence he gave the impression that he was able to recognize A1 and A2 during the attack in issueyet in one area he claimed that in all, he recognised three people, that is to say, Ogoli s/o Opaso, and Okelloc. He forgot to name the third person he recognised^ However, in another area PU3 revealed that he told PW2 that he saw Ogoli Opaso together with Okello; and two other persons seen by the deceased, were A1 and A2?

It is my view that faced with such evidence from PW3? it would ^I1'! ^I . . be difficult to say with certainity that his identification of the accused persons was the truth-.

Apart from PW3:^s shaky evidence of identification of A1 and A2? the prosecution also relied on the evidence of PV/1: and PV/4 which was to the effect that soon after being gunned down by his attackers, the deceased told them that it was A1 and A2 who order- ^d ^a gun-man to shoot him after he identified them on the night in issue^&lt;

I warned the assessors, and I hereby also warn myself that the above evidence being evidence amounting to ^a dying d^claration it is dangerous to act upon it without corroboration^, This is because much •(as the declarant may have been honest in what he sa.d, ho could have: at the same time, been mistaken\*

However, I advised the assessors too- and I do hereby advise-I. \* myself that b'^rang received the above warning, the ab )vc evidence could be acted upon without corroboration if all the circumstances of the dying declaration point to the fact that the same could not have been mistaken<> (see Pius Jasunga v ^R .(19?^.) 21 33'i) ^o

I looked for corroboration for the above piece of evidence, hut. could not find any.

Secondly, in view of the fact that the said offence took place at night, when there was no moonlight or any other type of lighting except the star light, I am also unable to say with certainity that the deceased was in a good position to identify the persons who caused his death on the night in issue.

In view of what I have discussed above relating to the partici pation of Ai and A2 in the offence under consideration, my conclusion is that the procamtion has failed to discharge its burden in respect of the fourth ingredient in Count 1.

Turning now to Count II, as far as the first ingredient is concerned, the prosecution relied on PW3's and PW4's ovidence which was to the effect that on the night in issue, a group of attackers made their way into their house at Sop Sop village in Tororo District. This happened at around 3.00 a.m. at night. These attackers took away from the sail witnesses, the sum of Ug. Shs. $14,000/z$ , two bed-sheets, three gomesis and a Roadmaster bioyolo, size 24 and finally made off with them.

The above evidence was not shaken by the defence in crossexamination. And in his final submissions Mr. Natsomi counsel for the defence conceded that they were not contesting this ingredient of the offence in Count II. I am therefore willing to find that there was theft of Ug. Shs. 14,000/=, two bed-sheets, three gomesis and a Roadmaster bicycle, size 24 from PW3 on the night in issue.

As far as the second ingredient in Count II is concerned, PW3 and PW4 also testified that the attackers who invaded them on the night in issue, gained entry into their house by kicking its door open. They then beat up the said witnesses before they stole the property in issue.

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The above evidence was riot shaken in cross examination\* In fact, in his final submissions Mr\* Natsomi counsel- for the accused indicated that they were not contesting this ingredient of Count II\*

As a result, I am willing to find that the prosecution has |j ^| proved beyond reasonable doubt that there was violence in the said . ^I theft.

As far as the third ingredient in Count II is concerned, again 1. | ! |; • ^I Pw3 and PW4 testified that at the time of the offonoe in issue, one It ^| , of the attackers who carried ^a gun threatened them with death if they did not give in the money demanded from them\*

In addition to the above,. PM? and PW4 also told court, that after the attackers had stolen the property in issue from them, they then took them out of their house and shot the deceased who had come to find out what was happening in PWJ's home\*

All the !' :^| Again in his above evidence was not shaken in cross-examination\* final submissions counsel for the accused persons conceded, that they wore not disputing this ingredient of the offence\* I am therefore willing to find that the prosecution dislijitj ^I charged its burden in respect of the above ingredient in Count II«

*As* far as the fourth ingrwdient in Count II is concerned, since this offence was committed in the same transaction as the offence in Count I, Courts⁹ findings in respect of the identification of the accused persons in Count I, apply with equal force to this ingredient\*

All in all, because of the prosecution'^s failure to discharge jl ^j I:'the harden upon it in regard to the participation of A1 and A2 in • I\* ll'lthe offences under Counts I and II in this case, I would agree with the joint opinion of assessors that the accused persons should be' acquitted of the said offences and I so order\*

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They should as a result be released immediately, unless they are being held on some oLnor ^awful charges\*

E»S% LUGAYIZI JUDGE 19A/1995

Read before: At: 12.16 p.m^o Mr\* Khaukha for the State, Mr, Natsomi for the accused persons\* A1 and A2 present. One assessor present\* Mr. Wandera court clerk.

Mr. Oburu interpreter.

E"S. LUGAYIZI J ^U ^D ^G ^E 19/4/1995