THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MASINDI
CRIMINAL SESSION CASE No. 0181 OF 2009
UGANDA ………………………………………………………………… PROSECUTOR
OBEDGIU IDDI ………………………………………………………………… ACCUSED
BEFORE: - THE HONOURABLE MR. JUSTICE CHIGAMOY OWINY – DOLLO.
The accused herein was indicted for the offence of murder in contravention of sections 188 and 189 of the Penal Code Act. The particulars of the offence were that on the 18th January 2009, at Karungu I village, Kiryandongo Sub County in the Masindi District, the accused murdered Kumakech Richard. The accused however pleaded not guilty to the charge; and a trial followed, in which the prosecution was under strict duty to prove, beyond reasonable doubt, each of the four ingredients that constitute the offence of murder, if the accused is to be convicted. These ingredients are:
- Death of a human being.
- Unlawful causation of that death.
- The said unlawful causation having resulted from malice aforethought.
- The participation of the accused in causing the said death.
As was stated by the Court in Andrea Obonyo & Others vs. R.  E.A. 542; at p. 550, citing a passage from the judgment of DENNING, L.J. (as he then was), in Bater v. Bater  2 All E.R. 458, which was approved in Hornal v. Neuberger Products Ltd.  3 All E.R. 970, and cited by the East African Court of Appeal, in Henry H. Ilanga v. M. Manyoka  E.A. 705, murder being a capital offence, the standard of proof required is proportionate to its gravity.
The relatives of the deceased – his mother, wife, and sister – adduced direct evidence in proof of his death. At the beginning of the trial, in accordance with the provisions of section 66 of the Trial on Indictments Act, the fact of post mortem examination carried out on Kumakech Richard was admitted in evidence. This satisfied the requirements in Kimweri vs. Republic  E.A. 452; which is that proof of death can be established, amongst other means, by the evidence of an eye witness to whom the deceased was known, or by medical evidence. The defence graciously conceded that the prosecution had proved the ingredient of fact of death beyond reasonable doubt.
To prove the participation of the accused in causing the aforesaid death, PW3 presented direct evidence of what she claimed had transpired that fateful morning. Her testimony was that she had witnessed the accused hit the deceased with his closed fist, from which the deceased fell down and died. This was evidence of identification; hence PW3’s inculpatory facts of visual identification was the best evidence on the matter – see Badru Mwindu vs Uganda; C.A. Crim. Appeal No. 1 of 1997.
In determining whether the accused was correctly identified and placed at the scene of the crime, I have, as I did advise the lady and gentleman assessors, handled the evidence of identification with the requisite caution. This is in accordance with the rule in numerous cases; some of the leading ones being: Abdulla bin Wendo & Anor. vs. R (1953) 20 E.AC.A. 166, Roria vs. Republic  E.A. 583, Nabulere vs. Uganda – Crim. Appeal No. 9 of 1978,  H.C.B. 77; Bogere Moses & Anor. vs. Uganda – S.C. Crim. Appeal No. 1 of 1997; and George William Kalyesubula vs. Uganda – S.C. Crim. Appeal No. 16 of 1997.
PW3’s testimony was that the altercation between the deceased (her son) and the accused had taken place in the morning and at an arm’s length from her; and she knew the accused quite well. Consequently then, in accordance with the decision in Isaya Bikumu vs. Uganda; S.C. Crim. Appeal No. 24 of 1989, and Remigious Kiwanuka vs. Uganda Crim. Appeal No. 41 of 1995, the conditions favoured correct identification. I am satisfied that the identification was free from any possibility of error, or mistake of identity. Owing to the warning above regarding the need for exercise of caution, I can safely act on that evidence even in the absence any other evidence, direct or circumstantial, pointing to the participation of the accused, hence supportive of its correctness.
The accused denied the charge, and set up an alibi asserting that in the morning of the fateful day, he was at his home; from which he was arrested and taken to police, where he was subjected to maltreatment. He admitted that at the police, he signed a charge and caution statement; and this the prosecution tendered in evidence. He however contended that some of the information contained in that statement, purporting to have been provided by him, had not been so. He was of course under no duty whatever to prove the alibi raised by him. The duty to disprove that alibi remained squarely on the prosecution.
I have considered the defence alongside the prosecution case. In fact, the part of his police statement which the accused does not contest, points to his having had an altercation with the deceased that fateful morning after a night time in the bar. It sufficiently places the accused in the company of the deceased that morning. I am convinced that the accused is correctly placed at the scene of the crime. I therefore reject his alibi. That uncontested part of his statement to police, together with the alibi I have found to be false, only serves as other evidence in support of the correctness of identification by PW3.
The Bogere and George William Kalyesubula cases (supra), clarified that the ‘other evidence’ required to support that of identification need not be the type of independent evidence such as is necessary to support evidence of an accomplice, or in sexual offences. Any admissible evidence pointing to the credibility of the eye witness is useful even when it is from that eye witness himself or herself. Even without any ‘other evidence’, I would still have found that the accused was placed at the scene of crime. This is because, as was pointed out in the Abudalla Nabulere case (supra): –
“If a more stringent rule were to be imposed by the courts, for example if corroboration were required in every case of identification, affronts to justice would frequently occur and the maintenance of law and order greatly hampered.”
On the cause of death, the law presumes any act of homicide as unlawful. Malice aforethought is also presumed to have been at the root of the killing. Section 191 of the Penal Code Act defines malice aforethought, in the causation of death to be deemed to be established by evidence providing either of the following circumstances-
(a) an intention to cause the death of any person, whether that person is the person 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.”
This can however be rebutted by presenting any excusable circumstance such as accidental killing, or one done in defence of person or property, or upon provocation, or committed in execution of a lawful order. This proposition of law is laid down in such cases as R. vs. Gusambizi s/o Wesonga (1948) 15 E.A.C.A. 65; Uganda vs. Bosco Okello alias Anyanya, H.C. Crim. Sess. Case No. 143 of 1991, [1992 - 1993] H.C.B. 68; Uganda vs. Francis Gayira & Anor. H.C. Crim. Sess. Case No. 470 of 1995, [1994 - 1995] H.C.B. 16. Further, as was stated in Festo Shirabu s/o Musungu vs. R (22) E.A.C.A. 454, proof of any such rebuttal is merely on a balance of probabilities.
The case of R. vs. Tubere s/o Ochen (1945) 12 E.A.C.A. 63, cautioned that it is unsafe to lay down any hard and fast rule in determining under what circumstance malice aforethought is said to exist. But some of the factors from which the inference can be made are: the weapon used, the manner it was used, and the part of the body targeted. The Court pointed out that:
“it will be obvious that ordinarily an inference of malice will flow more readily from the use of say, a spear or knife than from the use of a stick; that is not to say that the Court take a lenient view where a stick is used. Every case has of course to be judged on its own facts.”
Other cases that have applied and or widened the factors for consideration are: Uganda vs. Fabian Senzah  H.C.B. 136; Lutwama & Others vs. Uganda, S.C. Crim. Appeal No. 38 of 1989; Uganda vs. John Ochieng [1992 - 1993] H.C.B. 80, Uganda vs Turwomwe  H.C.B.16, and this includes whether or not, the weapon used was lethal, vulnerable parts of the victim were targeted, injuries were intended to cause grave damage, and the conduct of the accused before, during, and after the attack, points to guilt.
In R. v. Sharmal Singh s/o Pritam Singh; & Sharmal Singh s/o Pritam Singh v. R.  E.A. 13, the Privy Council applied the principle enunciated in D.P.P. v. Smith  A.C. 290, holding that the knowledge referred to as proof of malice aforethought is one a reasonable man would have of the probable consequences of his acts and omissions. The Court held at p. 16 that malice aforethought is established where, inter alia, there is:
‘knowledge that the act or omission causing the death will probably cause the death of or grievous harm to another person.”
In Siduwa Were v. Uganda  E.A. 596, the medical evidence had pointed to the possibility of a co-existing circumstance of the death, that was consistent with accident or manslaughter, as it was with murder. The Court, citing the passage from Sharmpal Singh (supra) reproduced herein above, restated that the onus of proof of malice aforethought was high.
In the matter before me, the accused had stated in his police statement, which the prosecution relied on, and the relevant part of which he admitted in Court as being correct, that the deceased had repeatedly provoked him by directing indecent language at him; and further by hitting him on the mouth. The testimony of PW3 that the accused and the deceased came to her home following one another, with the accused in a quarrelsome and belligerent mood, tends to corroborate this. She testified that the accused had uttered the threat to hit the deceased to death. From this, it is easy to make an inference that the accused was seized by malice aforethought; which resulted in his inflicting the fatal injury.
However, given that the premium for proof of malice aforethought is rather high, I have to consider all the circumstances under which the fatal injury was inflicted; to enable me determine whether it establishes beyond reasonable doubt that malice existed at the time. The evidence before me is that the fatal injury was caused by a single blow on the side of the deceased’s chest, with nothing more than just the closed fist. The post mortem examination found external marks of violence, with bruises and swellings on the chest in the area of the heart. The likely cause of death was indicated to have been a rupture of the internal organ – especially the heart – with contractions and expansions that possibly suppressed the activities of the other organs.
In the circumstance, I have good reason to entertain serious doubt as to whether the assailant intended to occasion death to the victim; or that he was aware that the injuries could result in death. It would be a little difficult to convince me that the assailant really harboured some intention to cause death; notwithstanding his express utterance that he would hit the deceased to death. This utterance, it is apparent, was nothing more than a warning by the accused that he would thoroughly beat up the deceased. It was more of an indulgence in a war of words than an expression of any intention to commit homicide. Therefore, it would be unsafe to make the adverse inference therefrom that the injuries were inflicted with malice aforethought.
I therefore find, in agreement with the views expressed by the assessors, that malice aforethought has here not been proved by the prosecution.
Despite his denial of participation at the trial, the charge and caution statement relied on by the prosecution points to participation of the accused; and raises the defence of provocation. Provocation is defined in Section 193 of the Penal Code Act to include any wrongful act or insult to a person to whom the person provoked stands in conjugal, parental, filial, or fraternal relation. The provocation must be such as to deprive the person relying on it as defence, from the power of self control; and to induce him or her to commit an assault on the one who has caused the provocation.
The dishonourable remark by the deceased to have the liberty to subject the accused’s sister to sexual intercourse in an illicit sexual intercourse and produce a child with her, exacerbated by the intimation that he could do the same to the accused – suggesting thereby that he could subject the accused, a fellow man to sexual intercourse – and then the subsequent hitting of the accused on the mouth, was a series of cumulative affront whose effect, by any account, amounted to serious provocation. The fact that the antagonists were from a bar, where they had been drinking, strongly pointed to the accused having been adversely influenced.
Notwithstanding the provocation, I am under duty to determine whether, in the circumstance, the accused reacted in a manner proportionate to the provocation. In Mushibi s/o Muhinguzi v. Rex (1946) 13 E.A.C.A. 139; where the appellant went to a drinking place carrying along a spear for fear of wild animals, and was assaulted by two people; one throwing him out, and the other insulting and beating him with a piece of firewood, to which he responded by fatally stabbing the latter with the spear, and was convicted therefor; the conviction was quashed on appeal, with the appellate Court stating, at p. 140, that:
“…it must be borne in mind that this question of ‘provocation’ in East Africa is a matter of specific legislation and not of common law. … the specific legislation on the subject makes the English common law inapplicable in an important respect. Under the English common law, to enable an accused person to take advantage of provocation to reduce a killing from murder to manslaughter the ‘mode of resentment’ employed by the accused must bear a reasonable proportion to the provocation offered.
That stipulation – to some minds most reasonable – finds no place in the specific enactments in the East African legislation. As long as there is a wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, then provocation is established. A slap with the open hand is an ‘assault’.
If the wrongful act is of such a nature as to be likely to cause an ordinary person to lose his self-control and slap the provoker, then legal provocation is established, and any act whatever causing death, whether done with or without lethal weapon, if done in the heat of passion caused by such provocation, and before there is time for the passion to cool, is manslaughter and not murder in the East African colonies.
Provocation which under English law might for this branch of the law excuse only a slap with the open hand, in East Africa excuses a fatal attack with a lethal weapon to the extent of reducing the fatal attack to manslaughter, however savage, brutal and unbridled such attack may be.”
The Court, at p. 141, cited a passage from the case of Juma Mafabi v. Rex; Crim. Appeal No. 20 of 1945; where the accused had inflicted multiple injuries on the deceased by hitting him on the head, fracturing three ribs, a cheek bone and the axis bone of the neck, because the deceased had inflicted two cuts on his finger with a walking stick, which stated as follows:
“We are however of the opinion that the two blows the accused received from the deceased were of such a painful kind as to be likely to deprive an African of accused’s class of his power of self-control and we think it was to that loss of self-control and not to any independent malice or desire for revenge that is to be attributed accused’s repeated use of the big stick he had in his hand to inflict serious and fatal injuries on the deceased.”
The Court accordingly allowed the appeal, but expressed its disapproval of the excessive and fatal assault; and sentenced the convict to serve ten years imprisonment with hard labour for manslaughter. The Court also cited its own decision in Rex v. Theodori (Criminal Appeal No. 201 of 1945) where on disproportionate expression of resentment, it had stated as follows:
“Juma Mafabi’s case aptly illustrates the interpretation to be put upon the provocation sections with regard to the point under consideration, for in that case the retaliation was definitely disproportionate to the provocation, yet this Court altered the conviction from murder to manslaughter.”
In the instant case before me, as pointed out above, the objectionable sexual reference to the sister of the accused, and as well to the accused himself – an abominable act, the accused being a fellow man – followed by the assault on the accused, added insult to injury. These acts, as pointed out above, were gravely provocative. The heat of passion envisaged under section 192 of the Penal Code Act must have operated on the accused in ways different from what it would otherwise have been, had he been sober. Therefore, in hitting the deceased with the closed fist only, and no more, it was in no way disproportionate response to the cumulative acts of provocation he had suffered. The excusable defence of provocation is certainly available to the accused in rebuttal to the charge of murder.
In the premise then, since it is only the ingredients of death of the victim, and participation of the accused which the prosecution have proved beyond reasonable doubt, I find, in agreement with the lady and gentleman assessors, that the charge of murder has not been proved beyond reasonable doubt. Accordingly, I acquit the accused of the charge of murder for which he has been indicted. However, since he inflicted the fatal blow, except that he acted on provocation, and without any malice aforethought, he instead committed the minor cognate offence of manslaughter.
The case of Funo & Ors. vs. Uganda; H.C. Crim. Appeals Nos. 62 – 69 of 1967,  E.A. 632, is authority for a Court to find an accused person guilty of a minor cognate offence, and convict such accused accordingly, even when not charged with it. In keeping with this, section 87 of the Trial on Indictments Act, (Cap 23), provides as follows:
“87. Persons charged may be convicted of minor offence.
When a person is charged with an offence and facts are proved which reduce it to a minor cognate offence, he or she may be convicted of the minor offence although he or she was not charged with it.”
I therefore find the accused guilty of the minor cognate offence of manslaughter, in contravention of sections 187 (1), and 190, of the Penal Code Act, and accordingly do hereby convict him.
Chigamoy Owiny – Dollo
11 – 05 – 2009