Rex v Cherwan (Criminal Appeal No. 159 of 1951) [1951] EACA 203 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir NEWNHAM WORLEY, Ag. President, LOCKHART-SMITH, Ag. Vice-President, and Sir DAVID EDWARDS, C. J. (Uganda)

REX, Respondent (Original Prosecutor)

## v KIBEYI w/o SALIM CHERWAN, Appellant (Original Accused)

## Criminal Appeal No. 159 of 1951

(Appeal from the decision of H. M. High Court of Uganda—Low, J.)

Uganda Criminal Procedure Code—Section 85 (6), sections 133 and 136, formal charge on appearance before Magistrate—Preliminary inquiry, section 221, reading over charge at commencement.

Accused was arrested without a warrant and brought before a Magistrate. A Charge Sheet copied from Police Charge Register appeared in the record. It contained the essential particulars of the offence charged. The Uganda Criminal Procedure Code, section 85 (6), provides that when an accused person who has been arrested without a warrant is brought before a Magistrate, a formal charge containing a statement of the offence ... shall be signed and presented by the Police Officer preferring the charge. Sections 133 and 136 prescribe what is to be specified in the charge.

Criminal Procedure Code, section 221, requires the Magistrate conducting the preliminary inquiry to read over and explain to the accused person at the commencement of such inquiry the charge in respect of which the inquiry is being held. The foregoing provisions were not complied with. The chain of evidence as to custody of the stone alleged to have been used in the offence was not complete.

Held $(7-7-51)$ .--(1) A closer observance of the provisions of the C. P. C. should be observed in respect of section 85 (6) and section 221.

(2) Care must be taken to prove custody of exhibits particularly the weapon alleged to have been used in murder cases.

Appeal dismissed.

Appellant in person.

,

Slade, Ag. Solicitor General, for respondent.

JUDGMENT.—The appellant was convicted by the High Court of Uganda of the murder of her husband by striking him on the head with a heavy stone causing a fissure fracture in the mastoid region and compression and hæmorrhage of the brain. The stone in question was estimated by the doctor who gave evidence at the trial as weighing about 10 or 15 lb., and having seen it ourselves we think that this is a conservative estimate of its weight.

The only ground of appeal is that the learned trial Judge should have accepted the appellant's defence that when she struck the deceased with this stone, or threw it at him, she was acting under sudden provocation which had deprived her of the power of self-control and before there had been time for her passion to cool. According to her story she had been beaten on several previous occasions by her husband and on the night in question he came home drunk from a beer party, accused her of having given away, or as she said at the trial, of putting something in his drinking tube, and before she could answer he beat her with his fists. He then laid himself down on his bed, whereupon she went out of the house and picked up the stone, went back into the house and struck him with it.

The learned Judge carefully considered this defence and in his judgment says: $-$

"Nevertheless, the beating she received on the night of the 14th was, even in her own words, over and done with, and her husband asleep or lying in repose when she made her retaliation."

He was satisfied that the attack on the deceased was launched a considerable time after the beating which she said she had received, and that it was prompted solely by a desire for revenge. In our opinion this was the correct conclusion to be drawn from the evidence, and the defence of provocation was rightly rejected. There is no merit in this appeal which is dismissed.

There are two matters apparent on the record on which we wish to comment. Section 221 of the Criminal Procedure Code, 1950, requires a Magistrate conducting a preliminary inquiry to read over and explain to the accused person at the commencement of such inquiry the charge in respect of which the inquiry is being held. Section 85, sub-section (6), of the Code provides that, when an accused person who has been arrested without a warrant is brought before a Magistrate, a formal charge containing a statement of the offence or offences with which the accused is charged shall be signed and presented by the Police Officer preferring the charge, and sections 133 and 136 prescribe what is to be specified in such charge. We observe that these provisions do not appear to have been complied with in this instance as well as in other instances in the appeals we have before us at these sittings. There is on the record what is termed a "Charge Sheet" which appears to have been copied from the Police Charge Register. Although in the present instance this Charge Sheet does contain the essential particulars of the offence charged in this case, it also contains what appears to be a precis of the evidence to be led in support of the charge. We think a closer observance of the provisions of the Criminal Procedure Code should be followed in this respect.

We also observe that the chain of evidence as to the custody of the stone alleged to have been used in this offence was not complete and, although here again we think that this defect has not prejudiced the trial, greater care should be taken in future in proving the custody of exhibits, particularly the weapon which is alleged to have been used in murder cases.