[1995] UGHC 58

## THE REPUBLIC OE UGANDA

IN THE HIGH COURT OE UGANDA - SITTING AT GULU

k

HIGH COURT CRIMINAL SESSION CASE NO. 198 OP 1993

UGANDA ................ PROSECUTOR

## - versus -

RA NO. 25102 SGT. TERENSIO ODONGO ACCUSED

Big¹ ORE: THE HONOURABLE MR, JUSTICE G. M, OKELDO .

## JUD GM ENT

This case was heard by a Judge who has since ceased to exercise jurisdiction\* Before that ceasure, 'the Judge had heard and recorded evidence from all the wiiziesses,. recorded submissions from counsels on both sides, made his summing up to the Assessors and recorded the opinion of the Assessors. He had adjourned the case for judgment which he had reserved to be delivered between 6-8/12/94\* He however ceased to exercise jurisdiction before he had prepared the judgment in this case. Consequently, the relevant case file was placed before me for purpose of preparing and delivery of the judgment.

I had pointed out in Cr,5 ,C. No . 26/9³ Uganda -vs- Charles Onyuta, and Cr. S. C, No.197/93 - Uganda,;-vs- Ploya David that there was no provision in the Trial on Indictment Decree similar to section 142 (1) of the Magistrates Court Act 1970 which empowers a Magistrate to act on the evidence vhich was wholly or partly recorded by his predecessor who for some reasons had ceased to exercise jurisdiction. High Court however, is empowered under section 17(2) of the Judicature Act ¹⁹⁶⁷ where no procedure is laid down for it by any written law or by practice, to adopt ^a procedure justified by the circumstances of the case. On the basis of that section, I adopted a procedure to write this judgment based on the evidence vhich was wholly recorded by my predecessor. In my view the circumstances of the case justified that course to avoid subjecting the accused and witnesses to a fresh hearing.

In this case, the accused No. RA 25102 Sgt. Odong Terensio was indicted for Murder contrary to section ¹⁸³ and 184 of the Penal Code Act in count No.1.

It was alleged in the particulars of the offence that on the 17th day of March 1992-''at Orubu village in Gulu District, the accused murdered Okumu Patrick.

In the second and third counts of the Indictment, the accused was indicted for Aggravated Robbery contrary to sections '.272 and 273( 2) of the Penal Code Act. The particulars of the offence in count No.² alleged that on the 17.3\*92 at Kirombe '. Alokolum village in the Gulu District, the accused robbed . Severino Ocitti of cash shs.9,8OO/= and one wrist watch. The particulars of the offence in count No.³ alleged that at the same village of Kirombe Alokolum, the accused robbed Alanyo Miriam of cash of 4,000/=. In both cases, the particulars of ' the offence alleged that in the course of the commission of these offences the accused used a deadly weapon to wit a gun on his victims.

On arraignment, the accused pleaded not guilty to the charges in all the three counts, ^H^e denied that he committed any of those offences. In pleading as he did, the accused set in issue all the essential elements in all the offences charged. It meant that all the essential ingredients in each of the offences charged had to be proved beyond reasonable doubt if a conviction was to be secured. It is an established principle., since the date of Wopinington -vs- D. P. P ( 1935) AC 462 that the burden to prove the guilt of an accused person was on the prosecution throughout. Such a burden does not shift to the accused. To secure a conviction the prosecution had to prove to the required standard. beyond reasonable doubt all the essential ingredients in the offence charged. An accused does not assume the duty to prove his innocence.

$\mathfrak{F}$

On the charge of murder, the essential ingredients requiring proof beyond reasonable doubt are:-

> $(1)$ that the deceased is dead.

$(2)$ that his death was unlawfully caused.

that it was caused with malice aforethought. $(3)$

that the accused caused it. $(4)$

Essential ingredments requiring proof beyond reasonable doubt in the charge of Aggravated Robbery are:-

(1) that there was theft of property.

$\sim$ (2) that there was violence with use of or threat to

use a deadly weapon in the course of the theft.

that the accused participated in the above. $(3)$ The prosecution called the evidence of 7 witnesses in a bid to prove the above essential ingredients as was required of it by law. The evidence of Dr. Kilama (PW1) who carried out Post mortem examination on the body of Patrick Okumu was admitted at a Preliminary hearing under section 64 of the T. I. D. His<br>Examination Post Mortem/Report was received in evidence and was marked Exh. P.1. D/Inspector Casimiro Odong (PW2) who re-arrested the accused and accompanied the Doctor to the scene of crime was also admitted at the Preliminary hearing. PW3, PW4, PW5, PW6 and PW7 were examined in court. PW7 only identified and tendered in evidence the statement of Detective Sgt. Dominic Opio who had conducted the identification Parade but had since died. The statement was received in evidence and was marked Eh. P2.

The accused gave a sworn statement in his defence and called no other evidence.

On the charge of murder, there was no serious dispute over ingredients Nos. 1, 2 and 3. These are that the deceased Patrick Okumu was dead, that his death was unlawfully caused and that whoever caused his death had malice aforethought. But there was a gap in the evidence of identification of the accused.

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PW3 who was the eye witness testified that she saw the assailant shot Patrick Okumu dead and that the latter fell down at the door way. The admitted evidence of Dr. Kilama (PW1) who carried out Post Mortem Examination on the hody of the deceased was to fhe effect that he carried out Post Mortem examination on the body of a male adult African identified to him by Odong Bazilio as that of Patrick Okumu. According to his Post NorJem Report (Exh. Pl) the body had an old scar on the chest with multiple fresh gun shot wounds on the chest, neck, brain and legs. The cause of death was put as haemorrhagic shock. However the said Odong Bazilio who knew the deceased and was reported to have identified the deceased's body to PV71 for Post Mortem examination did not give evndence. That omission created gaps in the chain of evidence. It left out the evidence which could show that Patrick Okumu on whose body the Doctor carried out Post Mortem examination was the very Patrick Okumu the subject-matter of\* the charge in count Mo.1. It is needless to emphasise the importance of that linkage in the chain of evidence.

As for the unlawfulness of the cause of the deceased's death, it has been repeatedly held by this court following the decision in R. v Gusambizi Wesonga (1948) ¹⁵ EACA ⁶⁵ that in homicide cases, death was presumed to have been unlawfully caused, unless it was accidental or was caused in circumstances which make it excusable\* Death is justified when it is caused in selfdefenc e.

In the instant case, there was no evidence whether from the prosecution or efherwise to suggest 'that the killing of the deceased was accidental or that it was committed in self-defence. On the contrary, the evidence -of PW3 indicated that ihe killing was committed in the course of furthering a criminal act.\* The death of the deceased was therefore in those circumstances unlawfully caused.

<\*./5..

On the question of malice aforethought, it must be borne in mind that this is a mental element. It is thus difficult to prove by direct evidence. However, courts in this Region have repeatedly held that existence of malice aforethought can be inferred from the type of weapon used in causing the death, the manner in which it was used and the part of the body on which it was applied. If a deadly weapon (knife or gun) was used on vulnerable parts of the body of the deceased, the existence of malice aforethought was readily inferred.

$\overline{5}$

In the instant case, the evidence of Dr. Kilama PW1 which was admitted at a Preliminary hearing, revealed that the body of the deceased have multiple fresh gun shot wounds on vulnerable parts of the body like the chest, neck and brain, Clearly, whoever inflicted such injuries using such deadly weapon 112 the gun on such vulnerable parts of the body as stated above, must be taken to have intended to kill his victim. I therefore find that whoever the assailant was, he had malice aforethought when he caused the death of the deceased.

On the two counts of Aggravated Robberies, there was also no serious dispute over the question of theft and use of deadly weapon in the count of murder, the dispute was centred on identification of the assailant.

According to Severino Ocitti PW4, on 17.3.92 at about 9.30 pm, he had sat by the door inside his house with his wife when he saw a gun wielding man ran in and ordered them to get out. They complied. From outside, the thug fired two shots into the air and demanded from them $100,000/=$ . They gave him 9,800/= which was the only money they had. The thug again fired a shot in the air and demanded more money. They had no more money. Then the thug demanded for the wrist watch which the witness had on his wrist. In handed it to him. The above was evidence of theft in respect of count No.2.

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Miriam Alanyo PW5 also testified that on 17.3.92 between 8.00 pm and 8.30 p.m two thugs one of whom had a gun came to her home and robbed her of two bags containing amongst other things 40,000/=. This was also evidence of theft in respect of count No.3. As I had said these evidence of theft had not been seriously disputed.

$\mathcal{L}_{\mathcal{A}}^{\mathcal{A}}$

to that are a set of

On the question of violence, both PW4 and PW5 testified that their assailant fired shots in the course of the commission of the theft. PW4 described how his assaulant fired the gun shots. According to him, the gun wielding man found the witness and his wife in their house and/ordered them to get out. They complied. From outside, the assailant ordered the couple to sit down which they did. Then he fired two shots into the air and demanded for 100,000/= from them. It was at this time that they surrendered 9,800/=. The thug again fired another shot in the air while demanding for more money. They had no more money. Then he demanded for the wrist watch which the witness had worm. The witness also surrendered that to him. 计二级 開放

÷.

According to PV5, however, she was having supper with $30 \text{ p.m.}$ her husband, and members of the family between 8/on 17.3.92 in the court yard when they heard a gun-shot along the Railways Then soon two people came running towards her home and side. exclaimed that soldiers were coming. On hearing that, her husband ran into hiding and their son James Acire ran towards his hut. The witness and the young children entered the house. Her son apparently met the thugs on the way to his hut and came back running whilst warning the winner and others to run away. The thugs fired several shots at her son but appeared to have missed him. PW5 further testified that the thugs came to the house where she was in and ordered her to open the door and to get on She complied. According to her, one of the thugs who had a gun fired several shots in the air. Later, they removed her bag and that of her husband and went away with them. The bags

$.7...$ were besides the dinning table outside where they had been having their supper. She testified that the bags contained $40,000/=$ .

On the deadliness of the weapon used, the evidence of both PW4 and PW5 were clear. Both testified that the gun was fired by their respective assailants at the course of their commission of the theft. That was proof that the weapon they carried was deadly. The firing of the gun shots was intended to facilitate the theft. That fact of gun firing was not challenged in crossexamination.

The next ingredient was that the coorsed participated in the commission of these offences. This was the most contentaus. The prosecution contended that the accused was accurately identified. In support reliance was placed on the evidence of PW3, PW4 and PW5. For the accused, it was contended that the conditions did not favour correct identification.

It should be borne in mind that the established principle regarding evidence of identification by a single witness is that where the prosecution case depended entirely on identification by by a single witness, such evidence had to be treated with much caution and where the conditions favouring correct identification were laking, court was to seek corroboration of such evidence before convicting on it (see Abdala Bin Wendo and Anor -v- R (1953) 20 EACA 166; Uganda -vs- Abdala Nasuru (1952) HCB.

In the instant case, the prosecution case in each of the three counts depended on evidence of identification of a single witness. According to the evidence on record, the incident happened at night between 8.00 pm and 9.30 pm at different places. PW3, PW4 and PW5 all described the stature of their respective assailants as a short and thin man who spoke Alur.

Both PW3 and PW4 testified that they were aided by the bright moon light to identify their respective assailant. According to PW3, she was at the estimated distance of only 3 meters

$...8...$

$-7 -$

away from their assailant during the operation though because of fright she could not estimate the time she took with him. She was inside the- house when the assailant had stood at the door way. PW4 on his part estimated that he was ⁸ meters away from his assailant and spent with him twenty minutes. He even had to lead the assailant ²⁵ meters away at the home of their neighbour one Odur. As Ibr PW5r she testified that she was aided by the bright moon light and by the light from the grass torch vhich she was ordered by her assailants to light. According to her, by those lights she identified one of the two assailants who came to her home. The one she identified was the more active of the two. From her evidence, that was a short thin and black man who spoke Alur language.

All the three witnesses described the dress of their respective assailant as striped shirt with a darkxoh troussers folded to the knees. PW3 did not mention whether her assailant had put on any shoes. But PV74 was emphatic that his assailant was bare-footed. K75 however testified that the assailant she recognised had put on gum boots. All the three witnesses made it clear that 'they had not known their assailant before. . ⁱ

I considered the above conditions in which the above witnesses claimed to have identified their respective assailant. From the evidence, the witnesses were subjected to fright as there were constant threats and gun firing vhich rendered the atmosphere extremely tense. The lighting condition was not even quite satisfactory. . ' Light was provided by moon light and by grass torch for PW5 • Apart from the above, the witnesses had not known their assailantsbefore. He was a total stranger to them. In my view those conditions were not favourable to correct identification . So identification made in those conditions cannot be free from possible mistake

There was therefore need for corroboration of those evidence of a .\* identification to ensure that the identification was accurate ^&lt;

I considered the evidence of PW6 who arrested the accused in the night in question but ^I discarded it for ^a corroboration because the description given by the identifying witnesses of their assailant did not match the description of the accused given by PW6 particularly of his dress. He was described by PV/6 to have been dressed in a civilian clothes with gum boots and was holding army uniform in his hand. He was coming from the direction'of the gun shots. That evidence was not enough to adequately implicate the accused since the civilian dress he was found in at the time of his arrest did not meet the description given by PW3, PW4 and PV/5.

These witnesses (PW3, PW4 and PW5) further testified to have picked the accused at a subsequent identification Parade held at Gulu Police Station. According to these witnesses, they picked the accused because they had recognised him at the scene of those crimes. That identification Parade was challenged by Counsel for the accused for its failure to comply with the established procedure. Counsel relied on the evidence of PW5 who according to the learned Counsel, testified that some of the participants in the Parade were ''dressed and others were not dressed."

Identification Parade is intended to confirm if the witnesses had accurately identified their assailant at the scene of crime. It is more particularly necessary where the conditions favouring correct identification at the sc&ne of crime were difficult. The evidential value of an identification Parade therefore depend greatly on whether the identification Parade was conducted with maximum fairness. The established rules of procedure for conducting an identification Parade was laid down in Rex -vs- Mwango s/o Manaa ( 1936) ³ EACA 29\* That procedure! Rules were later approved in Ssentale -vs- Uganda (1968) EA **365\***

(1) **She** accused person must be informed that he nay have a solicitor or his friend present when the Parade takes place •

(2) That the officer in charge of the case although he may be present, does not carry out the identification, (3) The witnesses do not see the accused before the

Parade .

(4) The accused must be placed among at least ⁸ (eight) persons as far as possible of similar age, height, general appearance and class of life as himself or herself

(5) • ^x accused is to be allowed to take any position ...he chooses in the line, and that he is allowed to change his position after each identifying witness has left if he desires•

(6) Care had to be taken that the witnesses do not communicate with each other after they had been to the Parade.

(7) Exclude every person who has no business there.

(8) Make careful note after each witness leaves the Parade, recording whether the witness identified or other circumstances.

(g) If the witness desires to see the accused walk, hear him speak, see him with his hat on or off, see that this is done. As ^a precautionary measure, it is suggested that the whole Parade be asked to do this. (10) See that the witness touches the person he identified. (11) At the termination of the Parade, or during the Parade, ask the accused if he is satisfied that the Parade is being conducted in a fair manner and note his reply.

(12) In introducing the witness, tell him that he will see a group of people who may or may not contain the suspect Don't say 'Tick out somebody¹¹ or influence him in any way whatsoever.

(13) Act with scrupulous fairness otherwise the value of the identification as evidence will depreciate considerably.

The main aim of the above Rules is therefore to ensure maximum fairness in the conduct of the identification Parade.

In the instant case, the Parade was conducted by No\* ²⁰⁷ D/Sgt. Dominic B. Opio whose Police Statement was received in evidence under section 30 (b) of the Evidence Act and was marked Exh. P2. At the time of the hearing of this case, the said D/Sgt Opio had died. His Police Statement Exh. P2 is very sketchy. It did not state how he conducted the identification Parade. He merely stated that five witnesses identified the suspect.

Failure of the late Opio to describe how he conducted the identification Parade deprived the court of evidence from which **it could''**determine whether the Parade was conducted fairly and in accordance with the above Rules. It is the duty of the prosecution to prove that the identification Parade was conducts fairly and in accordance with the approved Rules of Procedure. PW5 testified that some of the Participants in the Parade had put on shirts but others had no shirts on. I think that was not fair. For precautionary measures, all the eight people taking part in the Parade should be treated alike. If they were to hay-e no shirt on, all should have no shirt on.

**In** view of the above failures, I am unable to say with a reasonable degree of certainty that the identification Parade was conducted fairly. It is therefore not of much evidential

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value. It can not corroborate the evidence of identification given by those other witnesses. •\*%.

Considering the entire evidence on the record, I am afraid, there is no evidence to corroborate the evidence of identification which in each case was made in unfavourable conditions. In that case the benefit of the doubt must be resolved in favour of the accused. I therefore find that the accused was not accurately identified at the scene of crime. I thus find him not guilty of the offence in each of the three counts. So I acquit him on each of those three counts. He is accordingly ordered to be set free forthwith unless he is being held on other lawful grounds.

OkellcH

Judge 27/4/95. '