Rex v Fumbirwa and Another (Cr.A. Nos. 148 and 149 of 1936.) [1936] EACA 114 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); DALTON, C. J. and HEARNE, J. (both of Tanganvika).

## REX, Respondent (Original Prosecutor) $\overline{\mathfrak{D}}$ .

## MUTONO S/O LUIGO and MUSA MPANSO S/O FUMBIRWA. Appellants (Original Accused).

## Cr. A. Nos. 148 and 149 of 1936.

Manslaughter—Intent—Accessory after the fact—Unlawful act— Penal Code (Uganda) sec. 84.

The first appellant assaulted his wife so as to render her unconscious and having failed to restore her to consciousness, heand the second appellant honestly and reasonably believing her to be dead hanged her by the neck to a tree and by so doing killed. her.

- Held (4-11-36).—That the offence of manslaughter in Uganda differsfrom the offence of culpable homicide under section 299 of the Indian Penal Code in that in Uganda manslaughter is defined. as "an unlawful act or omission causing the death of another<br>person" irrespective of an intention to cause death. - Held Further.-That in the circumstances of this case, the trial judgewas entitled to find that the hanging was an unlawful act, under section 84 of the Uganda Penal Code, done with the intent of<br>fabricating evidence with intent to mislead a tribunal in a judicial proceeding. - Held Further.-That to constitute an unlawful act under section 84of the Uganda Penal Code, it is sufficient to show that an act was done with intent to mislead a tribunal which might or mightnot come into existence, and that to constitute a person accessory after the fact the felony should be complete at the time the assistance is given. Queen v. Vreones (17 Cox 267) applied.

t.

The facts appear from the judgment.

Appellants, absent, unrepresented.

Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by HEARNE, J.).—The appellants, in consolidated appeals numbered 148 and 149 of 1936, were convicted by the High Court of Uganda of manslaughter. The facts found by the learned trial Judge were that the first appellant assaulted his wife with a stick and wooden sandal and rendered. ner unconscious, that after his efforts to restore her to consciousness had failed, he and the second appellant, believing her to bedead, hanged her by the neck to a tree and by doing so killed her. According to the medical witness the cause of death was asphyxiation.

The main ground of appeal was that the Judge having decided that the appellants honestly and reasonably believed that the deceased was dead at the time she was hanged to a tree and the case for the prosecution being that it was the hanging which killed the deceased, they were entitled to be acquitted on the charge before the Court. An Indian case Rex v. Dalu Sardar (1914-18 C. W. N. 1279) was quoted in support of this argument. Sec. 299 of the Indian Penal Code defines "culpable homicide" as the act of causing death with one of three intentions: of causing death. of causing such bodily injury as is likely to cause death, or of doing something which the accused knows to be likely to cause $\cdot$ death. An honest and reasonable belief that death had already occurred precludes the finding of an intention to cause death and a conviction under sec. 299 would, therefore, not lie. The law in India, however, was rightly held by the trial Judge to be inapplicable in Uganda. For while culpable homicide is defined in the Indian Penal Code both as to what must be done and with what intention it must be done by the section which creates it a crime, manslaugher in Uganda is defined "as an unlawful act or omission causing the death of another person" irrespective of an intention to cause death.

Undoubtedly the act of the appellants caused the death of the deceased and in order to find that they were guilty of manslaughter, it was only necessary to find that their act was an unlawful act on the assumption that at the time of doing that act, they honestly and reasonably but mistakenly believed the woman The trial Judge held that, "there can be only one to be dead. reasonable explanation for the accuseds' action in hanging the woman and that is that they wanted to produce the appearance of suicide in order that the accused Mutono might escape punishment by destroying evidence (sec. 87, Penal Code) or by fabricating evidence (sec. 84, Penal Code)". We are unable to agree that the appellants' act could be said to have destroyed any evidence: but, in regard to the latter section, while the mere fact of hanging to a tree a person who is believed to be dead does not in itself raise the presumption of an intention to fabricate evidence to mislead any tribunal in a judicial proceeding, the facts of the case and the circumstances which led the appellants to act as they did, in our opinion, justified the trial Judge in drawing the inference he did. In our opinion, in order to find that the appellants had committed an unlawful act, it was not necessary for the trial Judge also to find that a tribunal must of necessity come into existence to inquire judicially into the circumstances of the deceased's death. It is enough, "if there was an intention to deceive a tribunal which might or might not come into existence", the reason for this being that, "in order to complete the offence of attempting to pervert the course of justice by the manufacture of false evidence, it is not necessary that such evidence should be made use of: Queen v. Vreones (17 Cox 267).

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It is observed that the trial Judge referred to the second appellant being an accessory after the fact to the felony (of manslaughter) committed by the first appellant. This we consider tobe a misdirection. In the case of an accessory after the fact it is necessary that the felony should be complete at the time the assistance is given; "for if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent, this does not make him accessory to the homicide: for until death ensues, no murder or manslaughter is committed" (2 Hawk C 29. S. 35: 4 BI Com. 38). We do not, however, consider that this misdirection of himself by the trial Judge led to a miscarriage of justice. In our opinion the appellants were properly convicted on his finding of fact within. the meaning of Sec. 84 Penal Code (Uganda) and the appeals are dismissed.

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