[1992] UGHC 48

THE REPUBLIC OF UGANDA.

IN THE HIGH COURT OF UGANDA AT FORT PORTAL. CRIMINAL CASE NO. j6O OF 1991

UGANDA: I:::::::::::::::::::::::::::::::::: :PROSECUTOR

## ==VERSUS==

WILSON JACK TWESIIME KAINGANA::::::::::::: :ACCUSED.

BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA.

## JUDGM ENT.

The accused in this case is known as Wilson Jack Twesiime Kaingana was indicted of murder Contrary to Section l8j and 18^ of the Penal Code. The allegations being that on the 1st day **of** April 1990 at Nyakatoma Kigarare village in Kabarole District the accused murdered\*y Rwahwiire Godfrey Mujungu. He pleaded not guilty to the indictment.

The prosecution in an endeavour to establishifctBc:<a«e called in aid the evidence of about four witnesses. PWI Gorrfrtie Basemera was the wife of the deceased (PW2) Ireta was her fathei in law, whereas Kasaija (PW4) was a neighbour to both deceased and PWI. The accused was known to PWI and PW^ as a casual labourer in the area. He was living in another yillage not far from that of PWI and PW4 and used to come to the .deceased's home. Two weeks prior to the incident the accused called o>. the deceased. On the first occassion when he went to their home the accused got a banana one bunch (matooke) from the deceased. He was charged Schillings 500/= for the bunch. He paid Shillings 300/= cash down and the accused had yet to pay the

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balance of Shillings 200/=. The accused took away the bunch of matoke but refused to pay the balance of Shillings 200/=. All

that happened in the first week prior to the incident.

On the second occassion which came in the second week prior to the incident the accused went to the home of the deceased. He found the deceased pruning the banana leaves in his banana plantation The accused went straight according to PWI and picked a pineapple and never paid for it. The deceased tried to find out from the accused why he picked his pineapple without paying for it and without his permission. The accused simply insulted the deceased and left off with the pineapple. PWI failed to understand why the accused had behaved in that way. \*

On 1st April, 1990 at around 6.00 p.m. PWI was seated in the kitchen, while the deceased plus Kasaija (PW^-) were seated just near the verandah- 'when they saw the accused. He 'came to their home armed with a spear. He had also a bottle in his possession. At that time the deceased and PW4 had just returned from the distillery where they had just distilled a jerrican of crude waragi. The accused demanded waragi on credit from the deceased person for Shillings 200/=. According to PW4 and PWI the deceased refused to sell waragi on credit\* to\*''the accused person because on one occassion he was sold ^m'atoke on credit and refused to pay the ⁱ ' .... • balance. At the same time tjie accused was.told that the waragi was meant for the inlaws who were soon visiting PWI and the deceased who had delivered twins a\$d traditionally the lichor in, the jerrican could not be drank by any one else. It- could-not be sold

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to the accused. The matter was referred to PWI by- her husband the deceased but she refused to sell the said waragi to the accused. The accused was prepared to pawn his sweater as security so that he was sold waragi to the tune of Shillings 200/= but the deceased ' refused since waragi had been reserved for his inlaws.

The accused got annoyed and abused the deceased words suggesting that the deceased should go and eat genitals belonging to his father and mother. The deceased sent the accused away ¥y shouting at him to leave his compound and at the same time was following him (the accused) to the road. Meanwhile the accused would stop and abuse the deceased and then continued on up to the road. As the deceased was returning to his home the accused was seen running after the deceased whom he speared once on the thigh. PW^ rushed to the i scene. When the accused saw him he removed the spear and fled. The deceased bled to death almost immediately thereafter, PW^ testified that there was a forest between the accused and the deceased' villages., There were no wild animals and one need not carry a spear.

Dr. Keri (PW3) carried out the postmortem on the body four days after the incident. He found a stab wound on the upper side of the thigh measuring ^x 2" ^x I" inches.' The wound was at the back of the right thigh and had turned inside and had affected the femoral artery a major vessel supplying the lower part of the body with blood from the heart. The cause of death was due to haemorrhagic shock from stab wound which involved femur artery.

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In his sworn statement the accused testified that he knew the . deceased. The latter was more or less his neighbour. Their villages were separated by a forest. He had been to the deceased's home on several occassions. He could go there and visit him and there was a path by his place. The forest was a thick one and there was a swamp there in. The same forest harboured wild animals like pigs, bush bucks and even gorillas. It was rare for people to pass through that forest '/'at night because of wild animals. More so after 6.00 p.m.when gorillas move around that hour looking for honey. It was ', prudent therefore for one to pass through that forest while armed with spear. That was a normal thing.

On 1st April 1990 at around ^+.00 p.m. he received some visitors He left the wife looking after them and went to the home of the deceased. He had an empty bottle and had cash Shillings 200/=. He wanted to buy crude waragi for the visitors. ^A bottle of crude waragi cost all that much. He found the deceased and his father drinking. Both the deceased and his father gave him something to drink. They (the deceased and his father) gave him so much drinks that he 'felt drank. He told those people that he wanted to buy beer (waragi). He gave the deceased money and a bottle inorder to sell him waragi. He wanted to go back to his visitors. The deceased supprisingly told him that the drinks were finished. He asked for his money and bottle so that he could buy the drinks from elsewhere. The deceased ordered him to go away accusing him of being a drankard Kasaija PW4 was present at the time but could not tell whether Basernera (PWI) was around inside the 'house. The deceased did not return his money. He did not sell him the waragi either" he did not also return his empty bottle. He demanded for his money and

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He demanded for his money and bottle and a quarrel ensued between them

After they had quarrelled for sometime the deceased went inside and came out with a spear and started chasing him. As he ran he did not know what was happening behind. The deceased chased him for sometime and speared- him at the shoulder. ' (The accused showed the Court the ghastly scarson his shoulder)'. That "the deceased chased him for 250 metres. The deceased speared him at close range and he fell down. When he started to stand up he speared him again at the back of the right upper arm. (The scar was shown to Court). He got hold of that spear as the deceased released it. He did not know what part of the body he speared. He made an aimless throw. After that he was frightened\* He van away but was drank. The deceased was also drank. He feared he would be followed and killed. • . ?- . . .................. /'• lie ran to the bush and hid himself.- He fell down become unconscious. He recovered consciousness at II.⁰⁰ p.m. and that was when he left that place. He was stained with blood all over his body. On leaving for his home he did not go through the forest. He took another route. On reaching home he found the visitors having left and even his family was not there. On learning that the authorities were looking for him he went and reported himself to the Police. And finally that when he went to the deceased's home he was not armed with any spear. He admitted killing the deceased but never intended to do so. He knew of the death of the deceased when he was under the'Police Custody.

He denied having taken any bunch of matoke from the deceased on credit. And also denied to have taken the' deceased's pineapple without his consent. Ha did not have any grudge with

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either PWI or the deceased.

As I directed the gentlemen Assessors in a charge of murder the prosecution has to adduce evidence to prove the following ingredients of the offence namely

- (a) That the accused was dead. - (b) What caused his death. - (c) That the killing was unlawful.

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(d) That it was the accused who caused the death of the deceased with malice aforethought as stipulated under S. 186 of the Penal Code Act. See Sentongo and Sebugwawo VR Criminal Appeal No, 123 of 1974 Rep, 1975 HCB P. 240. Joseph Kiiza and Anor 1978 HCB 279> Bukenya and others vs, Uganda 1972 EA 549 ^&gt;

The assessors were also directed that the prosecution has the burden in criminal cases to prove the charge against the accused person beyond reasonable doubt except in a few case. See Woolmington vs. DPP 1935 ,P. 462. Paulo Omale vs. Uganda Cr. DPP No.. 6 of 1977 Rep, in volume 1978 judgment Court of Appeal Uganda May/August 1978. Uganda vs. Joseph Lote 1978 HCB 262 Uganda vs. Sebyala 1969 EA p. 204,

I now proceed to consider the ingredients of the offence as outlined above. The first ingredient that has to be proved was whether ^the deceased was dead. The fact that Rwahwire'Godfrey Mujungu is dead is no longer an issue. There was evidence from the wife of the deceased (PWI) that her husband met his death on 1st April, 1990- PW4 also witnessed the killing of the deceased.

PWI and PW^ in a way were the eye witnesses to the incident. The doctor (PW2) carried out the postmortem of the body of the deceased. In his report he stated that the cause of death was due to haemorrhagic shock from the stab wound which involved the femural artery. The postmortem report was exhibited in the Court. There was therefore over-whelming evidence to show that Godfrey Mujungu was dead. The prosecution has therefore proved beyond reasonable doubt the first ingredient of this charge of murder.

In the second ingredient the prosecution has to establish what caused his death. PWI and PW4 witnessed the deceased being speared during broad day light on one of his thighs and bled to death. PWJ Dr. Keri who carried out the postmortem on the body found that the cause of death was due to haemorrhagic shock from stab wound which xx involved the femural artery and that the weapon most likely to have b^en used upon the body was most likely a spear. From what has transpired above it is my considered opinion that it was the spear which caused the death of the deceased.

As to whether the killing was unlawful the law is that homicide unless accidental is always unlawful except in circumstance making it excusable. See ^P vs. Gusombizi Wesonga ¹⁹^⁸ ¹⁵ EA CA P. ¹³⁷ (Adisgest of East African Criminal Case Law 1897 ^~ 193^)\* I shall consider this ingredient whether the killing was unlawful when considering the remaining ingredient of the offence whether it was the accused who caused'the death of the deceased with the requisite malice aforethought. PWI and PW4 were together at the deceased's home. when according to them the accused came to the deceased's home armed with a spear and a bottle and demanded to be sold crude waragi on credit to the tune of Shillings 200/=. The deceased refused to sell the accused

pineapple from the deceased's plantation without the consent of the

deceased and never even paid for the same. There is evidence from the two eye witnesses (FWI) and (PW^) that a quarrel ensued between the deceased and the accused. The former ordered the latter to go away from his home a matter which did not please the accused.

The latter was sent away up to the road. He left reluctantly. However when the deceased was making his way back home the accused rashed at him and speared him on the thigh and the deceased bled to death. ; ^z

In his defence the accused admitted that he was at the deceased's ■«j . home on 1st April ¹⁹⁹⁰ as testified to by the prosecution witness. He went there inorder to buy some drinks for his visitors. He took with him an empty bottle and Shillings 200/=:;. for buying crude waragi. On arrival he found the deceased and PW4 drinking waragi. He was given waragi to drink by the deceased, PW4 and PW2. He got drank. Also those people got drank. He gave the bottle and money to the deceased inorder'to get him the drinks. He was told by the deceased that the .'.rinks were finished and the latter refused to return him his bottle and che money he had given him for the drinks. The deceased ordered him to go away accusing him of being a drankard and a quarrel ensued. Thereafter the deceased even went inside and came out armed with a spear chased him and speared him. on the shoulder ana arm. The accused got . hold of the spear and threw it aimlessly at the deceased. He was in much pain. He did not know whether the spear got him or not. He was frightened and drank. He ran and hid himself. The accused admitted having killed the deceased but never intended to \*. kill him.

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In cross examination the accused replied that after he had got drank he could not differentiate between paper and money and could not tell whether the deceased had given him his money back or not. He did not know whether he stabbed that man or not and it was not xtrue that' he killed Rwobwire. The witness further replied ''Infact lam talking the truth I speared this man to death."

The learned Counsel representing the State submitted that the accused person had on many instances told lies to the Court although in Law the' accused could tell as many lies as he pleased but if he told blantant lies that affects the credibility of his evidence as ^a witness. He was all the time manufacturing stories and therefore was not an impressive witness that could be relied upon. The demeanour of the accused as a witness was also not good. The accused was properly identified as the man who caused the death of the deceased by spearing him.

The learned Counsel representing the accused submitted that his client did all that because he was drank. He left his home a sober man and got drank at the deceased's home.

According to the testimonies of PWI and PW4 the accused was known to those witnesses before. He was a friend to the deceased's family which used to visit from time to time. The incident took place during broad day light between 6.00 and 6. JO p.m. and appears to have lasted for sometime. PWI and PW4 were the eye witnesses to the incident. They saw the .'accused spear the deceased after which he disappeared with the weapon. I was opportuned to watch both the prosecution and the defence witnesses and I preferred the

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prosecutions version to that of the defence. It is my finding that the accused was prop>erly identified as the man who stabbed the deceased to death. I agree with the learned Resident State Attorney 's submission that the accused told a lot of lies in his testimony. It was not correct that it was the deceased who speared him first. Those scars were not caused by the deceased. They were not connected with this incident. The deceased never speared him at all. The accused was the aggressor. He came to the deceased's home when he was armed with ^a spear and it was that spear which he used in killing the deceased. It was therefore the accused person who caused the death of the deceased.

The last ingredient of the offence was whether in causing the death of the deceased the accused had the requisite malice aforethought. Malice aforethought shall be deemed to be established by evidence proving either of the following circumstances:-

- (a) An intention to cause the death of any person whether such person is the person actually killed or not. or - (b ) Knowledge that the act or omission causing death will probably cause the death of some person. Whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by ^a wish that it may not be. caused.

See SIX86 of the Penal Code, RV Kornwaka Wainulumbi and others 1932 I^ LRK P. I37> (Digest of East African Criminal Case Law 1897 - 195^). In RV Tubere s/o Ochen 19^3 12 EA CA. P. 6³ . ../11

Digest of East African Criminal Case Law 1897 - 195^)\* In holdings ² and ³ \* The Court held that in arriving at a conclusion as to whether malice aforethought has been established the Court must consider the weapon used and the part of the body injured although an inference of malice aforethought will flow more readily from the use of a spear or a knife than from the use of a stick.

According to PWI and PW2 prior to the incident the accused had on two occassion came to their home. On the first occassion he took a bunch of matoke from the deceased om credit. He was charged Shillings *500/= for* the bunch. He paid cash Shillings 200/= and the accused never paid back the balance of Shillings 300/=» And on another occassion he picked up the eased1s pineapple from the garden without his consent and or permission. And on the third occassion that was when he speared the deceased when he could not sell him the crude waragi on credit.

The accused denied to have ever bought any matoke on credit from ^I lie deceased person. Also denied to have picked up a pineapple from ■the deceased and also denied to have stabbed the deceased to death with a spear but at a later stage in his testimony admitted to have killed the deceased.

The learned Counsel representing the accused submitted that the accused did all that simply because he was drank and that the deceased and PW^ took some waragi while distilling enguli.

To begin with as I stated earlier I believed PWI and PW^ that

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II

they told this Court the truth. Consequently the accused's denials that he never received any matoke from the deceased on credit those were lies. It was also lies when he testified that he never picked up any pineapple from the deceased's garden without the latters permission. I also found that the accused came to the deceased's home while armed with a spear. Iam of the view the accused came armed with a spear inorder to scare the deceased so that he would sell him waragi he so much needed for his visitors. He did that because he knew that the deceased could not readily sell him waragi on credit because of the previous two incidents. The matoke and pineaple. saga. $\mathcal{L} = \mathcal{L} \mathcal{L} = \mathcal{L} \mathcal{L}$

In fact the deceased was stabeed with a spear which is lethal weapon. The deceased was speared on the thigh and bled to death. The thigh appears not to be a vulnerable part of the deceased's body. The doctor who carried out the postmortem examination gave the dimensions of the wound as $4"$ X 2" X I" and testified that the cause of death was haemorragic shock from stab wound which involved femoral ariary. The size of the wound suggest that the stabbing was not done at close range, PW4 testified that on seeing that the deceased had been stabbed he rashed to the scene where he saw the accused remove the spear from the deceased and fled.

The learned Counsel representing the accused submitted that in the course of distilling waragi the deceased and FW4 were drinking waragi so that when the accused came to their home they were already $z$ drank. And that Ireta (PW2), Kagaija (PW4) and even the deceased gave him waragi and became drank. He submitted that the accused.

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was inebriated when he stabbed the deceased and that because of his drankerdness he could not form the specific intent to kill.

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The prosecution was emphatic that no waragi was sold to the accused person. ^T believed PWI and PW^- that the jerrican of waragi they had brewed was reserved, for their visitors (the in laws) the deceased and PWI were expecting. Intoxication as a defence to this charge of murder therefore is not open to the accused person\* See . V. Section 13 (2) of the Penal Code Act. I believed both PWI and PW4 that the accused was not given any crude waragi to drink and there was no evidence to show that the accused was drank when he came to the deceased's home.

The learned Counsel then referred me to Section 17' of the Penal Code, He submitted the accused killed in self defence because when the accused wanted to buy lichor the deceased told him to take away rj.e drankar dness. The accused got a spear and hit the deceased. I was not addressed on this defence of self defence by the learned Resident Senior State Attorney.

According to PWI and PW4 after the deceased had insulted the accused that he should go and eat the genitals of his mother and father the deceased sent him away from his compound. The accused could pose, abuse the deceased and then moved ahead. He did this up to the road and the deceased was following him. Then as the deceased turned around to go back to his house the accused speared him to death.

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Section ¹⁷ ^he Penal Codes states \*

''Subject to any express provision in the code or any other law in force in Uganda criminal responsibility

> (a) for the use of force in the defence of person and property;

> > and

(b) in respect of rash, reckless or negligent acts, shall be determined according to the principles of English Law.

At common law where this defence of self defence is successfully raised an accused person is entitled to an outright acquittal. But in inflicting the fatal blow an accused must have retreated as much as possible. The onus is on the prosecution to show that the accused w\_<s- not acting in self defence and it was also for the prosecution to shov "chat there was time before the fatal blow was struck for the accused to realise that he was out of danger. See Mangi Mangi VR 196^- EA 289 Sulaiman ^V Republic 1963 EA ^A P, 2^6, OLono s/o Jai VR i960 ¹ ^A ^U^a p. 86.

In the instan'^C case the accused was armed with ^a spear. When he was told to leave the deceased's premises. The deceased was not armed with anything but just followed the accused up to the road and thereafter the accused turned around and speared the deceased as the latter was returning to his home. That was so as per the testimonies of PWI and PWU whom as I said earlier on in my judgment. I believed as being

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truthful witnesses- although: was' not addressed by the learned Resident Senior State Attorney over this defence it is the considered ^opinion of this Court that the defence was not available to the accused. He was not justified to have acted as he did. He was never assaulted by the deceased. The force used against the deceased was very excessive since the deceased never attacked him. lam however of the view that the accused behaved the way he did because there was some element of provocation. He was told to go away and did so though reluctantly and was followed by the deceased up to the road. The deceased was shoutin at him.

In Festo Shirabu s/o Musungu vs. Renina Vol. XXII 1958 P. *^5^* Court of Appeal for Eastern Africa. There it was heJd that for the defence of provocation which may reduce murder to mans?augbter. It must be proved that the act which causes death is done

(i) in the heat of passion

(ii) sudden provocation

(iii) and before there is time to cool.

Their lordsnips in that case had this to say:-

''Facts relied on as provocation do not have to be strictly proved. It is only necessary that there should be such evidence as to raise a reasonable ^&lt; probability that they exist. If this is the effect of the evidence the ones lying on the prosecution is not discharged and murder is not proved." Their loitdship continued

''There is no thin£ in Chacha s/o Wamburu vs. ^R Cr. Ap^p No\*—208 ¹⁹⁵⁵ ²⁰ SA Crv P. ³³⁹ to suggest that ^a trial Judge should insist proceeding with a charge of murder where there is a reasonable probability that the offence is only of manslaughter." See Sections 187 & 188 of the Penal Code Act. Kwaku Mensah ^V^R 1946 AC 83 & AGi Ceylon ^V Rerera 1953 2 WLR P. 2384

Applying the above quoted law on this defence of provocation, the accused suddenly speared the deceased who had been following him from the deceased home up to the road. It is the considered opinion of this Court that the accused acted in heat of passion before there was time to cool off. PWI and PW4 testified that the deceased was ordering him to 'leave 'his compound and followed him up to the read. These facts need not to oe strictly proved once there is such evidence to raise reasonable probabilities. This has not been efuted by the prosecution.

From what has transpired above the prosecution has failed to prove beyond reasonable doubt that the accused caused death of the deceased with malice aforethought. I find that the accused unlawfully killed the deceased but never intended to do so.

There might have been contradictions in the prosecutions case about the time when the accused came to the deceased's time about how far the deceased had gone before he was speared. In Magi du Boona vs. Uganda Cr. App. N»o. 19 of 1982 CA ^U while approving the decision in Taj er^s Uganda EA CA Cr . App No. ¹⁰ of I969 their ⁱ¹ ••^f.*Vx.?•* 1or dships had this to say

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"In assessing the evidence of a witness his consistency or inconsistency was a very relevant consideration, grave inconsistencies unless satisfactorily explained will usually but not necessarily result in the evidence of witness being rejected, minor inconsistency will not usually have that effect, unless the trial Judge thinks they point to deliberate untruthfulness."

In the light of that proposition of the law which I respectfully follow as being good law it is my considered opinion that that the contradictions in the prosecution case were not major and as such the evidence of the prosecution witnesses should not be rejected. On the Contrary they were minor and they did not amount to celiberate untruthfulness. The prosecution evidence should therefore not be rejected.

$\alpha$ $\cdot$ $\cdot$ $\cdot$ $\cdot$

The sum total of all this is that the prosecution has failed to prove beyond reasonable doubt that the accused murdered Rwahiire Godfrey Mujungu in contravention of Sections 183 and 184 of the Penal him of C:de and I acquit the charge accordingly.

However in full agreement with the opinion of the first Assessor but in disagreement with the second Assessor that the accused be convicted as charged I find the accused guilty of manslaughter Contrary to Sections 182 and 185 of the Penal Code and I convict him **Бесопд** accordingly. See S. 86 of the TID. I disagreed with the Assessor because he did not consider my summing up notes to him. Should have have followed them he would have arrived at a different opinion.

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Sgd. ( I. MUKANZA ) **JUDGE.** $13/3/92.$