Uganda v Budebu Kasto (Criminal Sessions Case 150 of 1993) [1993] UGHC 72 (29 November 1993)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT

# THE SESSION HOLDEN AT ARUA

## CRIMINAL SESSION CASE NO. 150/93

UGANDA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

**BUDEBU KASTO ::::::::::::::::::::::::::::::::::: ACCUSED** BEFORE: THE HONOURABLE MR. JUSTICE G. M. OKNILO.

## JUDGMENT

The accused and the deceased John Asika were known to each other. They were distant cousins. In the night of $31-8/1/9/1991$ the deceased was repeatedly assaulted by the accused in the latter's house and he died whereupon the accused compelled his sister Levinia Ajidiru (PW9) to assist him to throw the body in a newly dug pit latrines Stealthly however, Levinia Ajidiru later slipped and reported the matter to their local BC executives, / the local Lsub-parish chief came to the scene that night the accused ran away from them. But Lavinia led the team of local authorities to the accused's house. In the house they found a pool of blood, a hoe, a chisel and a hammer. All the articles were blood strained. When they were taken to the pit latrime where the body of the deceased was thrown, the local authorities confirmed that there was a dead body at the bottom of the pit.

The post mortem examination report revealed that the deceased sustained multiple deep cut wounds on the neck and head regions. The cause of death was put as brain damage and shock due to the cut wounds on the forehead and the throat. The accused was arrested three weeks later and indicted for the murder of the deceased. He denied the charge.

The burden to prove the charge against an accused person lies aquarely on the prosecution. To secure a conviction for murder, the following are the essentials which must be proved by the prosecution beyond reasonable doubts:-

(1) that the deceased is dead;

-(2") - that .his deach was unlawfully. caused f

(3) that it *vias* caused wit?, malice aforethought;

(4) that the accused cn c.usc\*'- it©

There is no dispute that the deceased tlohn Asiku is dead© The evidence of Levinia Ajidiru ?W9 shows that she new the deceased© That he was her distent cousin© That she saw his dead body on the night of 31-8/1-9-91 and assisted in thr?wing it into a pit latrine. This evidence vzas confirmed by the accused who also admitted that he knew the deceased and that he tou saw his dead body which he threw in a pit latrine© There is therefore no difficulty in finding that the deceased John Asiku is dead©

On whether his death was unlawfully caused, the law presumes that in homicide cases, death is always unlawfully caused unless it was accidental or was cc-h.niitted in circumstances which makes it excusable© Dec.th is excusable when it is committed in self-defencesee R V Gucumbiai Wesonga (1y4o) 19 E. A. C©A. 65© The above presumption is a rebuttable one© It -Is the duty of the accused to rebate it by showing that the killing was either accidental or that it is excusableo The standard of proof required of the accused to discharge that duty is low© It is only on the balance **of probabilities** see Festo shirabu s/o Musungu vs R (1955) 22 E. A. C. A. 454, — I I » I «—mrw C. T4. ■.-! ■■.■■■■ I —■■■■■•» I- I « n» ...»»«■■-■ I1 1^1 ...... —————

In the case before us, the evidence of Levinia Ajidiru **PW9 which** I believe, shows that the deceased was repeatedly assaulted by the accused until he died© The evidence of Dr. Amandu PW11 who carried out post mortem examinations on the body shows that the body bore multiple deep cut wounds on the neck and head regions. That these injuries were suggestive of violence©

The accused admitted in his sworn statement in court that the deceased died after he had repeatedly assaulted him with a panga inflicting on him injuries on the forehead and on the right side of the neck.: Counsel for the. accuser' however argued that there was no evidence to show beyond reasonable doubt that the deceased died of **the** injuries inflicted on him by the accused. He attacked the

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medical evidence as not being good enough. That it does not show the nature of the injuries and the cause of deaths He submitted that medical evidence should show the nature of injury axid expound oil it to show the cause of deathc For this proportion counsel relied on cr© sc. No. 61 /91 ,Uganda. vs Kelabako Night Jenifer reported in the 1990-1991 issue of the Kampala Law Report part II at page 7® That case is distinguishable from the present one on their facts. In Kulahako's case, the accused tir.rested the deceased? beat her with a stick of coffee tree as big as a human hand, kicked her and locked her in the cells on 6/11/81© The deceased who was pregnant appeared to have been released from the cells© On 31/12/81 she died in hospital of raptured uterus© She had been taken to the hospital in labour pains© Evidence showed that she had a raptured uterus only hours before her death© It was found that she had an abnormally big foetus weighing 8 pounds© A normal woman in Uganda delivers a foetus weighing 6/2 pounds© It was admitted in *cross* \*-:xpninatlon that the rapture of the uterus could have been caused by the foetus© There was no medical evidence in Kulabakcrs case to show che nature of injuries inflicted on.the deceased as a result of the beatings. In our case here, there is the post mortem examination report Exh. P.8 and the evidence of FW11o They shot/ that the body of the deceased bore multiple deep cut wounds on the neck and head regions. That the cut wound on the forehead penetrated into the brain while that . **on** the right side of the neck severed major arteries. That these caused the brain damage and shock which caused the death.

It is true that Dr© Amandu (P-. V11) admitted that it was necessary **to** open the body in post mortem examination. He however explained why he did not do it in the instant case© That they do not have the facilities in Arua Hospital© I do not doubt this assertion given **the** general state of Government Hospital here© PW11 quickly pointed out that cause of death can nevertheless be determined by observing the external injuries when they are obvious like the deep cut wound **Oft th©** forehead of the deceased and that on the right side of the **neck.** In my view, the principle in Kulabaku's case is not applicable

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to the facts of this case

$\angle$ for reason stated above. The facts of the two cases differ materially.

I think it is necessary for me to refer to what Lord Denning the once famous English Judge case said in Millen vs Minister of Pension (1947) 2 A. E. R. 372 at 373-374 when talking about the standard of proof in criminal case.

> "That degree is well settled. It needs not reach certainty, but it must carry a high. degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable" then the case is proved beyond reasonable doubt nothing short will suffice".

I find the above passage very persuasive. It puts the position of what amount to proof beyond reasonable doubt very succinctly. In the instant case, the evidence of Levinia Ajidiru PW9 shows that the deceased was healthy and well when they retired to sleep the previous evening before the assault on him by the accused. The medical evidence shows that he died from the injuries inflicted on him by the accused. If there are any other possible causes of the death of the deceased than these injuries, then they are remote possibilities but not probable causes. Like the gentlemen Assessors therefore, I find that the deceased died from the injuries inflicted on him by the accused.

Mr. Okwongali further argued that the injuries which the accused inflicted on the deceased were justified because the accused was defending his property. For this proportion, the learned counsel relied on the case of John Mabongo vs R (1974) H. C. B 8. In that case the appellant and the deceased were brothers. They quarroled

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ever the sale of land by the appollant and their father. A cattle was bought with the proceed8 of that sale. The deceased had wanted dowry for his wife. Armed with a panga, the deceased went to confront the appellant infront of the latter's door. Apparently he wanted to remove the cattle. The appellant speared him to death.

It was held that attempt by the deceased to take the cattle from the appellant constituted a legal provocation. Conviction of murder was reduced to manslaughter.

In another case of Malwa s/o Robi vs R (1959) E. A. 660, there was a dispute between the appellant and the deceased over a cattle. The deceased claimed legitimate right over the cattle. One day, armed with a stick, the deceased went to the appellants' boma to drive away the cattle. The appellant speared him to death. Appellant was convicted of murder. On appeal it was argued that the trial Judge ought to have found that trespass to good constituted provocation reducing murder to manslaughter. It was held that in defence of property it is a question of fact whether the degree of force used in defence of property which caused death was, in the particular eircumstances of the case, justifiable, or if not justifiable, whether it was such as to amount only to manslaughter, or was so excessive as to constitute the offence of murder. That trespase to property constitutes legal provocation.

As I understand the above cases, they laid down three principles regarding defence of property:-

(1) In defence of property the law allows a person to use reasonable force to prevent trespass to his property. If without exceeding the reasonable bound of force, the householder unintentionally causes the death of the trespasser then the killing shall be justified and treated as mis-adventure.

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- (2) If however, he exceeds the reasonable bound of force and attacks the trespasser, thereby, killing him, considering provocation caused by the trespass to his property, the killing can be treated only as manslaughter. - (3) That if he used deadly weapons like a spear, panga or gun on valuerable parts of the body of the treapasser, then the killing will be murder. Use of a deadly weapon and the manner it was : used attracts inference of intention.

In the instant case, the evidence of Levinia Afidiru (PW9) shows that the deceased had come as a guest of the accused. That they shared supper together before they retired to sleep in the same house. She denied that the deceased came at night stualithily to steal from the accused's house. According to the accused, the deceased did not come as his guest. That when he woke up at night, he noticed that his box, radio and a torch were missing from near his bed. That when he came to the sitting room he found that the door was open. That as he sat by the door watching outside, iron bars which he had placed by the windows fell down and he sensed that there was something in the house. He then armed himself with a panga. That as he stood at the door to get outside, somebody from inside the house pushed him with his hands from behind. That it was at this time that he turned around and struck twice with the panga. The stranger fell When he got rish? he noticed that the stranger was the deceased. down. In a panic, he threw the body into a pit latrine.

On whether the deceased had come as a guest of the accused earlier in the day, I find the evidence of Levinia Ajidiru PW9 eredible. She was a remarkable witness. She gave her evidence forthrightly and with remarkable details. She told court that the mattress (Exh. P.4) which was found in the pit latrine with the body was thrown there by the accused. That this was the mattress which on the instruction of the accused she had prepared for the deceased to sleep on in the accused's house. She answered questions put to

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her without any hesitation. Like the assessors I find Levinia a witness of.truth. I therefor believe her. I reject the accused's denial of his visitor as an attempt to wriggle out of the mess ,-n which he finds himself\* I according find that the deceased came as a guest of the accused and they lawfully retired to sleep in the accused's house as host and guest.

Buts even if I were to believe that the deceased might possibly at night have turned a thief and stole the accused's box, radio and torchT was the force used by the accused justified as argued by Mr. Okwongali?

First of all, there is no evidence that ihere was an attack or serious attack on the aroused by the stranger© The accused himself testified first that the stranger pushed him with his hand from behind him. Later he shifted and said that the stranger did not touch him but was only approaching him. That because it was dark he could not assess the strength of the stranger., so he struck twice with the panga he had. The evidence of Mr. Amandu PW11 who carried out post mortem examinations on the body and the Post Mortem Examination Report Exh. P«8 show that the deceased had six deep cut wounds three on the head and three on the neck regions. Neck and head are valnerable parts of human body. The repeated manner in which that deadly weapon was applied on the deceased shows'that the attack was outrageous and brutal© The force exceeded the bound of any reasonable force to prevent trespass to one's property. It was turned into an attack to kill. It is not surprising that when he was asked why he eut the deceased, the accused replied that he cut the deceased because he was a thief. But thieves are not to be killed out of the law. They are entitled to be punished in accordance with the law. That is only when they are proved guilty.

It was submitted that trespass to his property proved . the accused into reacting the way he did. I concede that trespass

■to one's property constitute legal provocation® But it must be borne in mind that the defence of provocation succeeds interalia when the act causing death was committed in the heat of passion without any lapse of time for the passion to cool® Secondly when the reaction is shown to be proportional to the provocation\*

In the instant case, the evidence of Levinia Ajidiru PV/9 shows ♦hat the conduct of the accused was one of a person wholly bent on killing the deceased\* The witness intervened three times to plead with him not to kill the deceased but the accused rejected all these pleas. He would come out, talked to the witness only to return **to** his house to resume his assault on the deceased. Eventually he became furious with the witness and continued assaulting the deceased until he finally slaughtered him. He literally cut the deceased's throat as if to ensure his death. The accused had ample time fox\* his passion to cool. His killing of the deceased was calculate^., ass •old blooded\*

The instant case is clearly **distinguishable from John** Mabongo **vs** Rj and Malwa s/o Robi vs R above. In those cases lethol weapon a spear was in each case used only once on the part of the deceased's body. But in the instant case the deadly weapon - **a panga** was repeatedly applied brutally not just once but, six times on va-lperabje parts of the deceased's body - the head and the neck. **The** "throat was literally cut off as if to ensure the deceased's death.

The assault meted out by the accused on **the deceased as shewn by** the evidence of Dr. Amandu PW11 and **Exh\* p. B (post Horta® Examination** Report) was totally out of **proportion to the aXlcged provocation.** It was in cold blood. In my view **this defence of provocation is** also not available to the accused.

**It** was further argued **for** the **accused that he acted in selfdafenca** when he caused the **death of the deceased® Tha RSA subsittjA**

that that defence was not available to the accused on the evidence on recordn He pointed out that for the defence of self-defence- to succeedj 'the following conditions must be met\*

(1) there must have been an attack on the accused.

- (2) the accused must as a result have believed on reasonable ground that his life was in imminent danger. - (3) the accused mur;t have believed that it was necessary to use force to repel or resist the attack laid on him. - (4) the force used by the accused must have been necessary to prevent or res5.st the attack. The degree of the force used is determined from the circumstances of each particular case to decide on its reasonablenessc

The above are the correct principles to determine the applicability of the defence of self-'defence <>

From the evidence of Levinia Ajidiru PW9, there was no attack on the accused by the deceased. I believe this witness for as I have already stated earlier in the judgment, she is credible and a witness of truth. It would seem that.-the accused launched his attack .on the deceased while the latter was lying asleep on the mattress (Exh.p.4). This was the mattress which Levinia PW9 had prepared for the deceased to sleep on in the accused's house. It became heavily blood stained and the accused threw it into the pit latrine over the body of the deceased o

Even if I were to believe the accused's claim that he saw the stranger approaching him from somewhere within the house, was his reaction proportional to the threat posed to him? From the number of injuries inflicted on the deceased, I am of the view that the attack was wholly out of proportion to the alleged threat. It **was unreasonable** force given the evidence on record.

I am in full agreement with both assessors that ©ven **this defence is not** available to the accused. The death of the **deceased wa\$ thereforft**

unlawfully caused by the accused^ There is no justification in law for such deliberate and wantnn killing.

On whether the accused had the necessary intention to constitute murder when he caused the death of the deceased, the RSA contended that it was so© The evidence of PW9 shows that the accused repeatedly assaulted the deceased despite her iiunercus and persistent plea with him not to kill the deceased., He used a deadly weapon - a panga which he repeatedly applied on ' 'Unenable. parts of the deceased's body© All these lead to the inference that the accused intended to kill the deceased© He is therefore convicted of murder contrary to Section 183 of the Penal Code Act as charged© And he is sentenced to suffer death as by law authorised©

'-. I' **G\*M.** OKELLO \* JUDGE.. 29/11/93

Judgment delivered in open **Court in** the presence of **the;^**

**1©** Accused

**J.** Mr. Okwangali for the accused.

OKELLO I **GjM\*** JUDGE •