[1994] UGHC 52

# THE REPUBLIC of UGANDA

### IN THE HIGH COURT OF UGANDA AT ARUA

## CRIMINAL SESSION NO. 258 OF 93

UGANDA PROSECUTOR VERSUS

NO. 21892 SGT. TAKO PASTore ACCUSED

## BEFORE HON. MR. JUSTICE G. M. OKELLO

### JUDGMENT:

The accused, No. RA 21892 Sgt. Pastore Tako was indicted for the murder of Filimoni Pili contrary to section 18} of the penal code Act. The offence was alleged to have been committed on 19/1/92 at Loropi Trading centre in Moyo District. On arraignment, the accused denied the offence.

According to Martin Eraga (PW7) he and the deceased were on 19/1/92 arrested by the accused and another soldier on the allegation that they have poison or that they are wizard. They took them to the NRA Military Barracks at Loropi. On the way, the accused and his military colleague made them run as they beat them with a stick of accacia tree as big as a man's thumb. On reaching the Barracks the accused invited his other military colleagues to come and beat them be ause they were wizard. The soldiers a good number of them about 7 smarted to beat him and the deceased. As the soldiers were beating th. n, the accused and another soldier went out and soon returned with Aucelia Utuboa (PW5) and Joyce Adrako (PW&). The two were also subjected ti beatings on same ground. That they too possess poison or article for practising witch craft. On his return, the accused jioined his ot er military colleagues in torturing them. The deceased and him were tie'i Kandoya sjyie, beaten, boxed and kicked..

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They were made to lie in the scourging sun and were burnt with molten ierrycan which the accused himself brought. The torture of the deceased was even worse. He was suspended on a tree where he was boxed and kicked. Then he was removed. Then the accused crushed red papers and rubbed it on the wounds which were freshly inflicted on the deceased# Then a huge stone of the size of a football was placed on his neck.

At 6.00 p.m. save for Joyce Adraka they were all locked in ^a small hut. At night the deceased groaned in pain for sometimes and suddenly went silent. He had died. The following morning, the body was given to the chairman RC ¹¹¹ of the area for burial. The evidence of PW5> and PW6 confirmed the arrest and tortures of the deceased by the accused and other soldiers. They also confirm the death of the deceased in the NRA Military Barracks at Loropi after the torture. The evidence of No# 26j5OO P. C. Basil Okello (PWJ) too confirm the death of the deceased in that military Barracks and further shows that the military authorities in that Barracks obstructed further investigations of the case and refused post mortem to be performed on the body. The evidence No. 9533 Sgt. Robert Andima (PW4) shows that he effected the arrest of the accused through the office of the DISO Moyo.

The Accused gave sworn statement in his defence. In the statement he admitted that he took the deceased, PW?, PV/5 ^nd one Flora to the military Barracks on 19/1/92 for interrogation on allegation of possession of poison or articles of witchcraft. Report had already been made by two women Mauria and Night of the presence of bad elements who possess poison or articles of witchcraft in the village. Eraga (PW7) Aurelia '(FfrS)and Flora were suspected. He took Pili the deceased to the Barracks to go and hear the truth for himself. He denied that he participated in torturing the deceased the Barracks;

that torture on the deceased started when flora named him as tfce person who

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keeps the poison. It was then that soldiers started to beat the deceased# He admitted that in the Barracks he beat Eraga. (PW7) and Flora# Then when the R. C. officials and some soldiers left to escort Eraga to go and collect the poison where it was hidden, he also left and went to the Bank of the River" He only learned in the morning of 20/1/92 that the deceased had died. He later saw the body and it was handed to the Chairman RC ¹¹¹ of the area for burial.

The burden to prove the r^rcrc against an accused person beyond reasonable doubt lies squarely on the prosecution (Leonard Asineath UR (1963) EA 206). To secure ^a conviction all the essential elements of the offence charged must be proved beyond reasonable doubt. In the case of murder like in this case, the followings are the essential elements requiring proof beyond reasonable doubt^o

- (1) that the person alleged murdered is dead. - (2) that the death was unlawfully caused. - (3) that it was caused by the accused - (4) that the killer had malice aforethought when he caused the death of the deceased.

As to whether the deceased Fiiimoni Pili is dead, there is no dispute. There is ample evidence to show that he is dead⁰ The evidence of Aurelia Utoboa (PW3)? Joyce Adrako (PWo) and Martin Eraga (PV/7) all show that they knew the deceased and that they were related to him as sister, daughter and nephew respectivelyo They all saw his dead body in the night of 19/1/92 and in the morning of 20/1/92 in the NRA Military Barracks at Loropi. The body was later removed by the local RC ¹¹¹ Chairman for burial

The accused himself admitted the fact of death. He admitted that he knew the deceased as a relative, village mate and a friend. , He saw his dead body on 20/1/92 in the NRA Military Barracks.at Loropi\*

Though there is no medical evidence, I am satisfied by the above cogent evidence that Filimoni Pili is dead. Medical evidence though the best evidence to prove death and its cause, it is open to court to rely on other cogent evidence where medical evidence is not available. (Republic vs. Cheya & Another (1973) EA 500).

On whether it was the accused who caused the death of the deceased, the prosecution contended that he was. In support they relied on the Doctrine of common Intention. This is provided for under section ²² of the Penal Code Act. The RSA submitted that common intention can be gathered from the presence of the accused at the scene and his failure to dissociate himself from the act or omission resulting into the commission of the offenee. • He cited Uganda v. Paddy Kalenzi (1989) Kampala Law Report Page 233 as his authority for that proposition. He relied on the evidence of EW5, PW6 and PW? to show that the accused was present at the scene but did not dissociate himself from the tortures which led to the death of the deceased? That on the contrary evidence show that he took active part in the torture of f • the deceased, in the NRA Military Barracks at Loropi.

For the accused it was contended that these was no common intention between the accused and the soldiers who tortured the deceased in the NRA Barracks at Loropi, Mr. Okwongali submitted for the accused that the deceased died as a result of accumulative effect of two independent assaults on him. That in such situation the first assailant is not guilty of causing the death of the deceased unless these was evidence of common intention. He relied on Stanley Manuka v. Uganda (1978) HCB.179. as his authority for that proposition.

He submitted that in the instant case, the deceased died as a result of accumulative effect of two independent assaults on him.

The first assault was by the accused as he escorted the deceased to the Barracks\* The second assault was by the numerous soldiers upon his arrival in the Barracks. He submitted that there was no evidence of common intention between the Accused and those soldiers who tortured the deceased in the NRA Barracks. Counsel Relied on the evidence of the accused himself to show that there was no common intention between the -Accused and those soldiers-who tortured the deceased in the Barracks.

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The learned counsel attacked the evidence of PW5j PW6 and PW7 as being unreliable because all of them were themselves under toruture and therefore could not have properly observed the part played by the accused in the torture of the deceased in the Barracks.

I have considered the above arguments. I also had the chance to read the cases cited by both counsels in support of their respective propositiono I ajyree with both counsels that where there is common intention, each participant is responsible for the act of his colieage and therefore deemed to have committed the offence resulting from the pursuit of their' unalawful endeavour. But where there is no common, intention, each party is on his own and can not be held responsible for the death resulting from the accumulative effect of his assault and of another person independent of each other. This is the view which was held in the case Stanley Manuka vs. Uganda above to which Mr. Okwangali referred me.

As was correctly pointed out by the learned RSA^W common intention is provided for under section ²² of the Penal code Act. The gist of that section is that where two or more person engage in a common concert to persue an unlawful purpose and in the course of that endeavour an offence As committed, eaoh of them will be deemed to have committed the offence.

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In the instant case, the prosecutor relied on the evidence of PW5» and PW7 to show that the accused hud the soldiers who tortured the deceased in the military Barracks common intention\* That he was present in that NRA. Barracks at Loropi when the deceased was being tortured but he did not dissociate himself from the torture which resulted into the death of the deceased like it was stated in Uganda v. Paddy Kalenzi above to which the Resident State attorney referred me®

The evidence of PW5» PW6 and PW7 have been attacked on the ground that they were themselves under torture and that they could not have properly observed the part played by the accused in the torture of the deceased in the Barracks. This raises a question of credibility.

The established principle used by courts in this country in assessing the credibility of witnesses is the one pronounced in the case of Alfred Tajar v. Uganda (1969) BACA Cr. Appeal No. 167/69\* It is that consistency or inconsistency of ^a witness is a relevant consideration in assessing his/her credibility. Where his evidence contains grave inconsistency unless satisfactorily explained usually but not necessarily results in the evidence being rejected. Minor inconsistency however, unless it points to ^a deliberate untruthfulness does not have the same effect. Moreover, a Judge has power to find a witness substantially truthful even though he has lied in some respect.

In this case, I do not find any grave discrepancy in the evidence of PW7, PW6 and PW5. Their evidence are the same in substance on material points. I do therefore find them substantially truthful. AH these witnesses told court that they know the accused. He is their village mate and related to them. The incident in, the Barracks took a long time during day time. I am satisfied that their torture not withstanding, they accuratel identified the accused as one of those who tortured the', deceased in the Barracks. This also disproved the defence of alibi raised.

The accused himself told court that he took the suspects t⁰ the Military Barracks to be interrogated to'extract from them information regarding the whereabout of the alleged poison or articles of witchcraft. That was the common intention. The lav; does not allow suspects to be tortured. That venture which the accused and his Military colleagues were engaged in was an illegal one. Since it resulted into death, each one of them who took part in the torture of the deceased is deemed to have caused his death. For those reasons I find that the accused did cause the death of the deeeased. In this I differ from the gentlemen Assessors.

This now leads me to consider the question whether the death of the deceased was unlawfully caused. Authorities available show, that in homicide cases like in this one, death is presumed to have been unlawfully caused unless it is shown that it was caused by accident or in circumstances which make it excusable. (R v. Gusambizi Wesonga (19^-8) ¹⁵ EACA 65)• That presumption is rebuttable, An accused can rebut that by leading evidence • \* r to show that the death was either accidental or committed in circumstances which make the killing excusable, self defence. The standard of proof required to discharge that burden in low. It is on the balance of probabilities as was stated in the case of Festo Shirabu s/o Musunga v. ^R (1955) 22 EACA ^5^.

In the instant case there was no such rebuttal evidence. Hence I find that the accused caused the death of the deceased unlawfully, the presumption not being rebutted.

This now leads me to the question whether the accused had malice aforethought when he caused the death of the deceased. It wns contended for the prosecution that the accused had the necessary intent to cause death.

authorities available show that malice aforethought may be inferred from the conduct of the accused immediately before the commission of the offence, the type of weapon used, the manner in which used and the part of the body on which applied. Where death is caused by the use of a non lethal weapon the inference of malice - afore thought is much less readily drawn as it was in the case of Yoweri Damulira v. ^R (1956) 2^ EACA *50,* In that case the accused beat the deceased with a stick with a diameter of between one and one half inches. No malice aforethought was V ¹ drawn.

In this case the common intention was to punish the suspected wizards in order to extract information from them with a view to removing the poison or articles of witchcraft. They used — n, sticks of the size of a man's thumb. They also tied the victim Kandoya style and burnt them with molten jerrycan. Though the tortures were severe, they are not in my view sufficient to attract malice aforethought. The intention was to torture. I thus find that malice aforethought has not been sufficiently proved. For the reasons triven here above, I disagree with the assessors. The accused is not found gruilty of murder but convicted of manslaughter c/s 182 of the Penal Code.

G. M. OKELLO

JUDGE.

9/5/9^