IN THE HIGH COURT OF UGANDA AT FORTPORTAL
HIGH COURT CRIMINAL CASE No. 0078 OF 2001
BEFORE: THE HONOURABLE MR.JUSTICE V.T.ZEHURIKIZE
Baguma John, hereinafter called the accused, is indicted with murder Contrary to Sections 183 and 184 of the penal Code act. It is alleged that on 8/10/2000 at Busoro village, Kirere Parish, Busoro Sub-County, Burahya County in Kabarole District the accused murdered Banura Beatrice. The accused denied the charge and the case went on full hearing.
In order to prove their case the prosecution and presented the evidence of four witnesses. In his defence the accused gave unsworn statement and called no witnesses. The case for the prosecution briefly is as ‘follows:-
On 8/10/2000 at around .3.00p.m. the accused came home after his wife
Sanura Beatrice, the deceased, had just served their children with tea and bread. The deceased also served the accused with tea and bread. The accused wondered why the deceased had prepared tea and bread when he always buys food. The deceased kept quiet, whereupon the accused started assaulting her, he then picked a panga and cut her several times. She collapsed and started bleeding profusely. The accused ran away and gave up himself to police at Fort Portal Police Station. In the meantime the deceased was rushed to Fort Portal referal Hospital where she died and was later buried. This evidence was given by Kyalimpa Stephen (PW1) and Nyakojo Patrick (PW4) both sons of the accused who were eye witnesses.
The admitted medical evidence revealed that the deceased suffered a deep cut wound on the right mid arm, cut wound on tie left wrist, deep cut wound on the right infra alaviculor. The cause of death was due to assault.
The prosecution further presented the evidence of Detective inspector Kaijabwami (PW3) who recorded a charge acid caution statement from accused on 12/10/2000. Its admissibility was not contested by the defence and it was thus received in evidence as exhibit P.2 and the English version as exhibit P. 2A.
In his defence the accused more or less reiterated what is contained in the charge and caution statement. He testified that he had given some money to the deceased to do business, but the money had got lost and she could not give an explanation for the loss and this made him very angry. He further stated that on that day i.e. 8/10/2000 the deceased never cooked for him. He testified that the deceased had started distancing herself from him which was the cause of the loss of the money. He admitted having cut her with a panga.
lt is the duty of the prosecution to prove its case beyond reasonable doubt Ssekitoleko V. Uganda 1967 E.A 531 . This burden never shifts. The conviction will only be based on the strength of the prosecution case but not on the weakness in the defence ease —Ntura V. Uganda 1977 HCB 1O3
In the instant case the prosecution has to prove the following ingredients of the offence if it is to procure a conviction.
1. That a human being, namely nature Banura Beatrice, is dead.
2. That the cause of death was unlawful.
3. That there was malice aforethought.
4. That the accused person participated in the murder.
In his final submissions Mr. Musana, Counsel for the accused did not contest the first two elements of the offence. He stated that it is not doubted that the lady is dead and who ever caused her death did so unlawfully. Without stating in so many words, Counsel did not challenge the participation of the accused person in the killing of his wife. His contention was that there was no malice aforethought on the ground that the accused acted under provocation.
Before analyzing the evidence on record in relation to the contested issue of whether there malice aforethought, in view of the alleged provocation. I am duty bound to make a clear finding on each of the essential ingredients of the offence of murder, which have been conceeded by the defence, as proved beyond reasonable doubt. It is important to do so because in a criminal trial, end especially in a trial involving a capital offence, a court of law cannot abdicate its responsibility of making a specific finding in respect of every essential ingredient of the offence charged. That remains so, any concession by the defence not with standing. See Uganda V. Nuwayinamani & 2 others High Court Cr.Session Case No. 254/9 at Mbarara before Hon. Justice. V.F Musoke-Kibuuka unreported.
On the death of Banura Beatrice this Court is satisfied that the evidence of PWI and. PW4 the sons of the deceased, PW3 the brother of the accused, PW2 the police officer who took the accused’s charge and caution statement and the admitted medical evidence no: prove beyond reasonable doubt that, indeed, the deceased is dead.
On whether the death was the result of an unlawful act, the evidence of all prosecution witnesses namely PW1 and PW4 the sons of the accused, PW3 his brother who was called to the scene and the nature of injuries ascertained by the doctor as per admitted evidence all show that the deceased died as a result of multiple cut wounds which led to profuse bleeding. Cutting a human being in unauthorized circumstances and not accidentally amounts to an unlawful act See Gusambizi. S/0 Wesenga V.R ( 1948) 15 EACA 65.
As regards the essential ingredient of participation of the accused, there is the evidence of PWI and PW4 the sons of the accused who described vividly how their father cut the deceased several times. The accused admitted having killed the deceased in his charge caution statement recorded by PW2. In his evidence in Court, the accused admits having cut the deceased after which he gave up himself to police. This element of the offence is also proved beyond reasonable doubt.
I now turn to the only contested issue of whether in causing the death of the deceased, the accused did so malice aforethought. Mr.Musana, Counsel for the accused submitted that there was no malice aforethought on the ground that the accused, having lost his money, he demanded an explanation from the deceased but one ignored it and that such conduct amounted to provocation as defined under s.183 of the Penal Code act. Counsel, asserted the deceased’s conduct, aforesaid ,was an insult of such nature as is likely to deprive one of power of self control.
Malice aforethought is defined under S.186 of the Penal Code act and
the relevant part is as follows:—
Malice aforethought shall be deemed to be established by evidence
providing either of the following circumstances-
(a) an intention to cause death of any person, whether, such person is the person actually called or not, or
(b) knowledge that the act or omission causing death will probably
cause death of some person — -
Malice aforethought as defined above is a state of mind or a mental element which is hardly ever proved by direct evidence. Courts have sent down the circumstances which ought to be considered before deciding whether or not malice aforethought has been made out and these are:
(a) the weapon used.
(b) the part of the body that has been inflicted.
(c) the number and nature of injuries inflicted.
(d) the conduct of the accused before and after the incident.
See Tubere V. R (1945) 12 EACA 63 and Uganda V. Turwomwe 1978 HCB 132.
In the instant case the accused used a panga which is a deadly weapon. He inflicted deep cut wounds on the arm and on the right eye. He several ether wounds on the deceased’s body and left her in a pool of blood. What sparked off this repeated cutting of the deceased, according to PWI and PW4, whose evidence I believe to be true, is that she served the accused with tea and bread instead of food. When the accused asked her why she had not cooked food she kept quiet. He then descended on her with a panga inflicted, the various injuries leading to severe haemorrhage which caused her death. Such conduct on the part of the accused clearly shows that he had planned to kill the deceased and the issue of tea and bread was a mere excuse to carry out a premeditated act. On realizing that the deceased was dying the accused ran away and gave up himself to police. I do not believe that this conduct was an indication of remorse or regret. The accused was looking for safety for himself. It was not a conduct of an innocent man. In view of the above evidence I have no doubt that the accused planned and intentionally is the deceased. He knew that inflicting several deep cut wounds on the vulnerable parts of the body would cause death of the deceased. He ran away then he saw that the deceased would most probably die from those injuries, in the premise I find that the accused caused the death of the deceased with malice aforethought.
The defence relied on by the accused is that of provocation. He alluded to it in his charge end caution statement, and in his evidence in court. it was the gist of his advocate’s submissions as already stated above. The existence of defence provocation does not necessarily negative malice aforethought. This defence has the effect of mitigation. It helps the accused in that what would have been a conviction of murder, is reduced to manslaughter. Section 187 of the Penal Code provides
’When a person, who unlawfully kills one another under circumstances which,
but for the provisions of this section, would constitute murder does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.’
My understanding of the Section is that that accused would have been found guilty of murder (after all the ingredients of the have been proved) if it were not because he caused death.
(a) in the heat of passion caused by sudden provocation.
(b) and before there is time for his passion to cool.
Thus when the accused kills a person under these circumstances, murder is reduced to manslaughter. But not every provocation is a defence to have the effect of reducing murder to manslaughter. But not every provocation is clearly defined under S. 158 of the Penal Code act. The test to be applied is that of the effect of Provocation on a reasonable man. See Uganda V. PlC Alfred Ogwang H.C.C.C.No.69/96 (1996) 1 KALK 90 . In applying the test it is of importance:
(a, To consider whether sufficient interval has elapsed since provocation to allow a reasonable man to cool and
(b) To take into account the instrument with which the homicide was effected. provocation has been defined. as some act or series of acts done or words spoken by the deceased to the accused which would cause any reasonable person and actually causes the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him for the moment not master of his mind — see Delvin J.in R. U Dutty(1949)1 ALL E.R.932 which was followed in P/C Alfred Ogwang.
ln applying the Provisions of S. 187 and 188 of the Penal Code Act and the decisions cited above J find it difficult to see any element of provocation that was caused to the accused by the deceased. According to PWI when their father, the accused, came the deceased served him with tea and bread. The accused wondered why the deceased had not, instead prepared food. The deceased kept quiet then he started kicking her and when, she fell down, he embarked on cutting her with a panga
. In cross-examination this witness stated that he had heard of the quarrel over money sometime before this incident.
In view of such evidence I do not see any wrongful act or insult which was done or offered to the accused which deprived him of the power of self control and induced him to commit the act that he did. Even if one was to agree with the accused that he was not happy with the way the deceased used the money or ran the shop and that she he’d started distancing herself from him, I do not find that the accused acted in a heat of passion caused by sudden provocation and that there was no time for his passion to cool. Even if one were to say that the deceased’s alleged conduct frustrated or even provoked the accused, such cannot justify the kicking and cutting of the deceased with a deadly weapon in the form of a panga.. An ordinary fight without cutting to kill would have been understandable. The accused person might have been an abnormally excitable person and for that matter he is not entitled to rely on provocation which would not have led an ordinary person to act the way he did.
For the reasons and in agreement with the considered opinion of the lady assessor, I find the accused guilty of murder contrary to section 183 and 184 of the penal code act and convict him accordingly.
Sgd ( V. T. ZEHURIKIZE)
Court: Judgment delivered in open court signed and dated in the presence of both counsel and the accused.
Sentence: There is only punishment provided by law for any person convicted of the offence of murder. I therefore, sentence you to suffer death in a manner provided by law.
Court: Right of appeal explained.