Rex v Achietu (Cr.A. 81/1934.) [1937] EACA 166 (1 January 1937)

# COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. P.; LAW, C. J. (Zanzibar) and LUCIE-SMITH, Ag. C. J. (Kenya).

## REX (Respondent) (Original Prosecutor)

## ISRAILI EPUKU S/O ACHIETU (Appellant) (Original $Accused$ ).

## Cr. A. $81/1934$ .

- Circumstantal evdence, sufficiency of—Murder—Whether evidence reached that standard of proof requisite for cases based entirely on circumstantial evidence—Cumulative effect of circumstances—Mere suspicion. - Held (29-6-34).—That the evidence did not reach that standard of proof requisite for cases based entirely on circumstantial evidence, and that it did not contain any fact which alone amounted to a presumption of guilt, while the cumulative effect of the circumstances said to tell against the appellant was not such as tosatisfy the Court of Appeal that he must have been connected with the death of the deceased, and that, although there was suspicion, that is not enough. Conviction quashed.

Appeal from High Court of Uganda.

Parties absent served.

JUDGMENT.—The appellant was convicted of the murder of a woman named Aryo. It was led in evidence by the Crown that the appellant and another man named Eriya visited the house of one Odonga, the father-in-law of Aryo, where some beer was being drunk. On his arrival the appellant appears to have engaged in some dispute with Aryo about beer and cigarettes, but after the other visitors had left he followed Aryo to her house some twenty or thirty yards away where he was heard by Odonga to offer the woman some cigarettes.

No one saw him after that time which appears to have been. something after 8 p.m. until 6 a.m. the following day when he sought admission to his own house where Eriya had spent the To Eriya's question "Where have you slept last night?" $\rm night.$ he answered "You do not know where I have slept; there are many places for sleeping." About an hour afterwards the dead. body of Aryo was found about 150 yards from her house at a spot to which it appeared from tracks to have been dragged from the house. It was about the same distance from appellant's house which was said to be situated about a quarter of a mile from Aryo's house. The woman had evidently been strangled. and had been treated with terrible violence.

The appellant on arrest was discovered to have on his left arm some superficial marks which appeared to the African Medical Assistant, who examined him, to be teeth marks, and many superficial scratches on his shoulders which seemed to be caused by finger nails. All these marks were of recent origin.

The appellant in an unsworn statement endeavoured to account for his movements that night. In his statement in the lower Court he asserted that his injuries were caused by the native policeman who arrested him. The learned Acting Judge who tried the case finds both features of the defence quite unsatisfactory and we see no reason to disagree with him on this point. The appellant, however, is not to be convicted on the weakness of the defence but on the strength of the prosecution. What then are the inferences to be fairly drawn from the facts in this case where the evidence is purely circumstantial?

The assessors found the appellant guilty of murder and the learned Acting Judge said "Those opinions (that is to say the opinions of the assessors) are of course in no way binding on me but on the consideration of all the evidence before me I do not see how a reasonable man could come to any other opinion unless he could reasonably regard all the witnesses as liars. Accused was the last person seen in the company of Aryo at her house. there was no one else there, and she was found next morning done to death by violence. Undoubtedly there was some quarrel or ill-feeling between the two of them, though it is not established whether Aryo's rejection of his company had anything to do with the sexual motive. Accused spent the night away from his own home 400 yards away, and bore on his person marks of a struggle when examined. He has made little or no attempt to rebut the evidence of the prosecution witnesses ..."

The foregoing observations appear to us to summarize excellently the evidence against the appellant. We can take no exception to the acceptance by the learned Acting Judge of the evidence of the Crown witnesses. He saw them and was in a better position than we to appraise their veracity. That, however, is not to part with our right to estimate the inferential value of such accepted evidence.

Proceeding therefore to examine and weigh each item of evidence, the fact that the appellant was the last person to be seen in the company of the dead woman in her house seems to us to have very little importance in view of the fact that it is not ascertained at what hour she met her death. He was seen with her at 8 p.m., and her corpse was found at 7 the next morning. Although he did not return to his own house until about an hour before the corpse was found, there is no ground for presuming that he spent in her company any period between the hour they were last seen together and the hour he returned Manifestly this does not exclude the possibility of her home.

murder by some other person at some time during those eleven hours. It is then said that there was some quarrel or ill-feeling between the two. But there is nothing to indicate that the appellant bore any resentment for the expressions used towards him by the deceased. In fact according to eye-witnesses he behaved in a quiet and conciliatory fashion. Appellant's failure to return home is a suspicious circumstance, but it appears to us that his protracted absence is no more connected with the murder than a much shorter period. It was not established when the murder was committed and the distances involved could have been covered within a few minutes.

Appellant's evasiveness when questioned by Eriya is also suspicious but people do not always answer questions even if they have nothing to conceal; the manner of his answer does not appear from the record, and assuming he did have something to conceal it does not follow be tat it had any connection with the murder.

The marks on appellant's body of course suggest a struggle with the woman, but here again we find ourselves unable to emerge from the region of suspicion into that of presumption. It was not proved nor can it be presumed that the woman inflicted any punishment on her assailant; and though the marks were fresh it was not shown that they were not on the appellant's body prior to the murder.

We are accordingly of the opinion that the evidence does not reach that standard of proof requisite for cases based entirely on circumstantial evidence. We are unable to hold that it contains any fact which, taken alone, amounts to a presumption of guilt, while the cumulative effect of the circumstances said to tellagainst the appellant is not such as to satisfy us that he must have been connected with the death of the deceased. Suspicion there is, no doubt, but that is not enough.

We therefore quash the conviction and acquit the appellant.