Uganda v Komakech & Others (Criminal Session Case 70 of 1990) [1991] UGHC 52 (17 January 1991)

Full Case Text

## THE REPUBLIC OP BGANBA

### IN THE HUGH COUBT OF UGANBA AT KAMPALA

*a &lt; J* —jlj- ex *cJLs^-*

## CRIMINAL SESSION CASE NO.7O/9Q

• PROSECUTOR UGANDA

# -VERB DAS

ACCUSED BENSON KOMAKECH & OTHERS

BEFORE: The Hon. Mrt Justice G. M. Okellot

## J U B G M E N T

A' group of Rebel soldiers of the Holy Spirit Movement stormed a t the home of one Eujenio Otto at Madi Kiloc village in Kitgum Bistrict on 28/10/88 at about 1\*30. p.m. These Rebel soldiers were armed with various weapons which ranged from guns to pangas. -gome also carried Jerrycans. They found Eujenio Otto and his wife Karla Otto in their house. They arrested the couple accusing Mr? Eujenio Otto of being responsible for the arrest and subsequent detention of the father of one of the Rebel commanders and for the NRA burning sown the Rebel's shrine at Madi Kiloc village. The couple were made to sit down in t their compound and were assaulted with the flat side of the panga.

•Properties of the couple including their livestocks were looted . and a number of houses and grannaries in the homestead were burnt down\* Some of the Properties which could hot be carried away by these soldiers • were thrown-into the fire and were burnt off. The Bebel soldiers later led the couple away from their home for a distance of about' 1^ miles when Mr. Eujenio Otto whose hands were tied behind him was made to to sit down^ . His wife Karla Otto was ordered to return home to look

for another husband because her husband was to be worked on. Mr. Eujenic Otto was, then hacked to death with a panga in the presence of his wife Karla whor stood at a distance of some fifteen meters watching the horror. The neck was cut repeatedly from the back such that the *j* bead was virtually severed from the trunk. ,save. for the vocal code. His limbs were also all cut.

The accused Benson Komakech was eventually arrested in connection wit£ this incident as being the person who commanded that group of Rebel / soldiers of the Holy Spirits and physically killed Eujenio Otto0 He was accordingly indicted for the murder of Euginio Otto contrary to section 183 of the Penal Code Act. In the second count ,he was: indicted for Aggravated Robbery contrary to section- 272 and 273(2) of the Penal Code Act\* In the third count he was charged with Arson contrary to section 3C'7(a) of the Penal Code Act. He denied all the charges.

It is a principle of our criminal law procedure .that, the burden of proving any criminal offence against c<. <? v.ved,person lies on the prosecution. The standard of proof rev trod -• s beyond reasonable doubt The defence does not bear any duty bo prove 1. is. innocense. This principle was set out in the case of Woolmington -y- BPP( 19 55)AC 46 \$ and has since been adopted by the East African Courts and has since been consistently followed\* See Leonard Asineth —v- Republic (1963) EA 20-6 at'208. *r .* ————«—

•aw c

To constitute the offence of murder contrary to section 183 of the Penal Code Act, the following ingredient must exist;-

- (1) That the person alleged to have been murdered is dead\* - (2) That his death was unlawfully caused. - (3) That the death was caused with malice aforethought\* - (4) That it was the accused who so cause the deaths

In order to secure a proper conviction for murder, the prosecution must prove beyond reasonable doubt all the above ingredientsc

In the instant case, the prosecution contends that Eujenio Otto'\*s dee/L\* The defence however leaves it open to court to decide on this point, The prosecution has relied on PV71 and that/Galdino 01ango PW2\* The the evidence of Mrs Karla Qtto evidence of Mrs Karla Otto PV71 shows that she saw her husband ^ugenio Otto ;?\_:ng hacked to death with a panga\* That later or. she took this dead body and hurried it\*

Galdino Olango PW2 also testified Cha- he Krew the deceased Eujeni Otto who was his master. That he (PV/2, had been the herdman of the deceased\* That on 28/10/f8 he saw the dead body cf the deceased Eujeni . Otto\* ' \* • ' .... " «\* •

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Sujenic Otto\* He observed it and noticed multiple cut wounds on the neck and on all limbsu The accused himself admitted in cross-examination that he knew Eujenio Otto who was his village mate\* That he is now dead\*

There was no medJcal evidence to show that the deceased is dead and the cause of the death\* This is no obstacle to proving death® the . While Medical evidence i^/best evidence to prove death and its cause, it is by no moans the only proof of death and its cause. Death and its cause can still be proved beyond reasonable douisrt by other evidence than Medical evidence.

In Chcya and Anor -v- Republic (19731 EA 500 vtwo accused assulted grid tried to remove the deceased from a group of women, at a dance because they objected to his behaviour<> Other people joined in and assaulted the deceased who later diedv

At the trial of t.ne accused for murder? no post mortem examinSnation Report was produced and the prosei.-u Aon rlied on the evidence of the prosecution eye witnesses to establish death and its cause. For tho accused ii was contended inter alia that there was no proof of detth and its cause. It was held that the fact o'f death and its cause could be established otherwise than by medical evidence®. This view was followed in the case of Uganda -v- Yiga (1977) HOB 216. .

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I agree with the above view, since death and its cause are matters of facto They can be proved by any other cogent evidence other than medical evidenceo

In the instant case I believe the evidence of Mrs Karla Otto PW1 and that of Galdino Olar .go PW2 both of who 1 found to be truthful • vzitnesseso They gave their evidence forthrightly. From their evidence like the gentlemen Assessors I find that Eujenio Ortto is dead. The prosecution has proved this ingredient beyond reasonable" doubto

As to whether the death of the deceased was unlawfully caused, the prosecution contends that ibhis was so\* The defence aga,in left this . point open to the court to decide.

In homicide.\*.cafces\$ uni:?os accidental, the killing is always sumed to be unlawful except whex-e it is committed in circumstances which make the killing e&usade\*

## See R -v- Gusn^bizi. Wasonga, .<12j4Q)-. >. -SAGA. 511. •

Killing can be excusable whon it is committed in self-defence.

In the instant case, theprosecution relies on the evidence of Mrs Karla ^tto. The evidence of this witness states the circumstances in which the deceased was killed. According to the evidence of Mrs Karla Otto, the assailant of the deceased tied the victim's hand behind him, led him to a distance of about 1-J- miles from his: home

and he was ordered to sit down when his assailant deliberately and bloodedly hacked him to death. That the assailant cut the deceased's neck with a panga twice forcefully from the back severing the head fyom the trunk save for the vocal code. That the assilant further <\$ut all the limbs of the deceased who died almost instantly.

The above evidence clearly ruled out excusable circumstances in the killing. It was not accidental nor was it done in seli^def^nQ^ The killing was clearly unlawfully caused. From this evidence I agree with the gentlemen Assessors that the prosecution has proved this ingredient of the offence beyond reasonable doubt,

Before a conviction can. be properly obtained for murder, it mus t be proved beyond reasonab?..uov.bt that Whoever unlawfully caused the death of the deceased had intention to kill him or to cause him grievious harm. He must be shown beyond reasohable doubt that he had the necessary malice aforethought.

Malice aforethought is a mental ol .-?2 it. is usually difficult to prove by any direct evidencec But trio may re gathered from thg conduct of the accused before or after the Kill ing more so where mative can be established. It may also be inferred from the type oj\* weapon used, the manner in which it was used and the part of the body in which it is used. Before this inference can be drawn from the weapon used and the nature of injuries sustained regards must be heard of all the circumstances of the case.'

( &gt;

In the instant case, the evidence of Karla Otto P71 shows that that weapon used in killing the deceased was a panga. A panga is a lethal weapon as defined in section 273(2) of the Penal Code Act., Mrs Karla Otto testified that she saw the Assailant of her husband hacked him with panga to death. She explained that the assailant wielded the panga with great force repeatedly cutting the back of the deceased's neck virtually severing the head jfrom the trunk save for the vocal code\_.; That the assailant further cut all the limbs of the deceased who died almost instantly.. The evidence of Galdino Olango PV72 confirmed the cut wound, injuries he saw on the dead body of the deceased. That he saw multiple cut wounds on the neck' and on all the limbs of the deceased..

I believe these witnesses who I found to be truthful witnesses., Now whqever inflicts those kinds of injuries with that lathal weapon in that manner and on those vulnerable part of the body like the neck, must have intended to kill his victim or to cause him grievous bodily har^ , &gt;

In the instanct case, I find that whoever'caused the death of the deceased *I* necessary intent to kill. He had the malice aforethoght. I am satis-\* had the—/ tisfied like the gentlemen Assessors that the prosecution has proved

this ingredient beyond reasonable doubt\*

Before an accused person can properly bo convicted for any Criminal offence, he must be shown beyond reasonable doubt to have committed the offence with which he has been charged,.. He must be linked with the commission of that offence. —......... ...............hr

, In the instanct ease, the prosecution must .prove beyond reasonable doubt that it was the accused who unlawfully caused the death of the deceased and that he had a malice aforethought. On this issue the prosecution contends that the accused did unlawfully caused the death of the deceased with malice aforethought. The accused who gave sworn evidence in his defence denied killing the deceased. He pleaded an alibi and explained that the case against him was a concoetion based on a conspiracy between his half-brother Martin Okello and one Mark Okeny who was related to the deceased Eujenio Otto. It is not disputed that Mark Okeny is the cousin of the deceased Eujenio Otto.

. The law regarding a defence of alibi is that an accused who raises a defence of alibi does not assume the burden of proving it. He doe s , not have to account for every bit of his movement covering the material time. It is up to the prosecution to disprove that alibi beyond reasonable doubt. He can do this by producing evidence which will put th£. accused squarely at the scene of crime at the material time., See Sekitoleko -v-Uganda (1967) EA. 551. Raphael R ' EA,475 .

7 V

In the instant case the prosecut on relied on the evidence of Mr s Karla Otto PFt and that of Galdirc Olango jFW2> Bo,;h these witnesses testified that they knew the ccused very well before the incident. Mrs Karla Otto PW1 testified that she knew the accused from his childhood and further that this incident took place in a broad day light and lasted for about two hours. That from all these favourable conditions for proper identification she had ample time to identify the accused very well. The accused himself admitted that Mrs;Kar-la . XXhto. kiWfcshim before this incident and that she is his clan aunt.

*........../\**

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Galdino Olango PW2 testified that he had known the accused for two years prior .to this incident. Galdino Olango was the -herdsman of the deceased Eujenio Otto, Hfc testified that ho was able to identify the accused because the incident took place during & broad day-light time aid lasted for a fairly long time.

The accused testified that at the material time on 28/10/88 he was at Palabok Patanga where he had migrated. He dismissed the evidence of Mrs Karla ^tto and that of Galdino Olango as a fabrication based on a conspiracy minded by mafitej/ Mark Okeny and Martin Okello togehter with Pirimo Omni the Chairman of RC III of Padibe Division. That this conspiracy came as a result of a domestic misunderstanding between him and his half-brotner Mari/in ^xellc who accused liim of being favoured by their father. That Mark Okeny who is : related to the m'other of Martin Okello joined in the conflict to support Martin Okello. That Mark Okeny is related tc the deceased Eujenio Otto.

I have given my due consideration tc the evj.uenco before court. I have also observed the witnesses as they t^3J : court. I want to repea that repeat for emphasig/fcvnd Karra. pv/1 ar-i d£,ldljo Olango *Pfi?.* truthful witnesses. They gave their evidence forthrightly. It is true there are contradictions in their evidence as regards The dress of the accused at the material and also as tc who assaulted the deceased end PV71 sopn after the arrest of the couple from the house at the material time. -I consider that these discrepancies are minor and were not made deliberately to mislead court. These can. be explained away on lapse of time.

As regards their evidence of identification of the the accused I find that the conditions favoured correct identification. In the first place the accused was known to both witnesses before. Secondly the incident took place during abroad day light time and the incident lasted for about two huurs\* -'•11 these gave the witnesses ample tine to properly identify their assailants. I therefore believe that the accused was accurately and unmistakeably identified by the witnesses as the person who killed the deceased«

-.'10- -

I de not believe the alibi so raised by the Accused, ^his must be a lie to cover up the offence. I think the accused had also lied wfoen he told court that he had not heard of the death of Aijenio Otto for six months untill when he was arrested and charged with this offence. Yet he told court that Eujenio Otto\* s home was only 34" miles from .his home. Further that Eujenio Otto was a *very* prominent person in their village. If this was sc, it is incredible that the news of the death of such a prominent person in the village would not be heard of within the radious of 32 miles\* The accused must have been lying to cover tins crime. This lie may even corroborate the prosecution case.

In the circumstances I agree with ihe gent. «.men •ssessors that the prosecution has proved beyond reasonable do Jot that it was the accused who unlawfully caused the death of the deceased and that he did so with malice aforethought. The alibi so raised has thus been disproved beyond reasonable doubt.\* It must fail and I find the accused guilty of murder as charged. He is accordingly convicted. .

>11

I now turn to count II which charges the accused with Agravated Robbery contrary to sections 272 and 273(2) of the -^enal Code Act. The particulars of this offence are that Benson Komakech and others still at large on 28 day of October 1988 at ^adi Kiloc village Daewoo county, Kitgum District robbed Mrs ^arla Otto of 7 heads of cattle, one head of a sewing Machine 20 chicken and other household goods and that at or immediately before or immediately a.ftor the said robbery threatend to use deadly weapons to wit guns, pangas spears and arrows on the said Mrs Karla Otte.

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To constitute that offence the following ingredients must be present.

- (i) /that there was theft. - (2) that there was use of or threat to use a deadly weapon at the time of or immediately before or immediately after the theft. - (3) that this was committed by the accused or that he participated in the commission thereof.

In the order to secure a conviction for the above offence, the prosecution must prove beyond all reasonable doubt a?? the abevee ingredients. An accused has no duty to prove hrs innoc'^r^s . •

On whether or not there was theft, the prosecution contends that there was theft. The defence did not dispute this point\* The prosecution relied on the evidence of Mrs ^arla Otto PV71 and that of Galdino Olango PW2.. Both these witnesses testified that seven heads of cattle, thirty chicken, one head of a sewing machine,a saucepan all of which belong to Mrs Karla Otto were stolen by \_a group of these soldiers of the Holy Spiri Movement and were taken away.

.... ./W

I believe the evidence of these witnesses who I found to be truthful, From their evidence I find like the gentlemen Assessors that the prosecution has proved beyond reasonable doubt that there was theftc

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For there be a proper convj ction for the offence of an aggravated Robbery, it must be proved beyond reasonable doubt by the prosecution that there was use of or threat to use a deadly weapon at the time of or immediately before or immediately after the theft, A deadly weapon has been defined in section 273(2) of the Penal Code Act to include an', instrument which is made or adapted for shooting, stabbing or cutting and any instrument which when used for offensive purpose is likely to cause death.

The prosecution contends that there was use of a deadly weapon to with a panga immediately after the theft^For the defence it was argued that no use or threat to use a deadly weapon was made at or immediately before or immediately after the o '••'mission of the theft. That use of a flat side of a panga does not institute use c£ a deadly weapon.

The evidence of Mrs ^Carla Otto . W1 shows that when their attackers arrived, the deceased and her husband were ir. their house. That after arresting them, their attackers made them to sit in the compound and the hands of her deceased husband were tied behind him,- Subsequently they were beaten by the flat side of the panga. That their attackers were armed with pangas and some with guns. That in the meantime, other members of the group were looting their properties and ethers set fire

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to their houses. 'That after this their attackers ordered end- they were led- for about 1-J- miles when the deceased was ordered to sit down with his hands still tied behind him. . That when the deceased sat down, their assailant stood over him and in cold blood hacked the deceased with the panga to death. That he cut the deceased on the back of his neck twice and on all the limts..

The evidence of Galdino Olango PV72 confirmed the use of the flat side of the panga in beating the deceased and Pv71 in the course of the theft. His evidence also confirmed that he observed multiple cut wounds on the dead body of the deceased where he found the body was lying some 1-J miles away from the deceased\* s home.

I believe these two witnesses as to be weaponry used in the course of the comission of this theft. It is my view that the looting of the properties of the deceased and the subsequent leading of him to a distance of 1-g- miles away from his home and there hacking him with a panga to death forms pon?t of the same transaction. This brings the use of the panga in killing the iecouv; •. • "mediately after the commission of the theft within the m. uh.: g of section 273(2) of the Penal Code Att. On that groxn?d I agree with the gentlemen Assessors that the prosecution has provey beyond reasonable doubt that there was actual use of a deadly weapon to wit a panga immediately after the commission of the theft.

In order to properly convict an accused person of any Criminal offence he must be linked with the commission of the offence charged.

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Ho must bo shorn by evidence to have committed the offence charged, or participated in its commission.

In the instant case, it has to be shwcn beyond reasonable doubt that the Accused committed or participated in the commission of the Robbery. Failure to prove'this, the accused must be acquitted.

The prosecution contends that the Accused participated in the commission of the Robbery. This was denied by the accused who asserted that at the material time he was not at the scene of crime but that he ( ) was at Palabek Pata-nga where he had migratted^ He' also argued that the case against his was a fabricationj

The law regarding the defence of alibi is clear. It is that an accuse a accused who sets up a defence of alibi does not assume the burden to prove it. It is the duty of the prosecution to disprove the alibi beyond reasonbalbe doubt by leading'evidence which puts the accused squarely at the scene of crime au bhe material time.

(

, 15 \*c

In the instant case the prosecution. rcuiep cr. tine evidence of Mrs of Karla Otto PI71 and/t-aldino Olangc Pv72u Boi.j- tnese witnesses testified that they knew the accused before 4 he. i.-: aidant and tnat the incident took place during a broad daylight time and exercise lasted for a period of about two hours. That this gave them ample time to identify the •• the accused.

As I have stated earlier I believe these witnesses as f found them truthful\* I find that the conditions favoured correct identification and I am satisfied that the accused was properly and unmistakeably identified by these witnesses the scene of crime at the material time. The part he played has also been lucidly described. This disproves beyond beyond reasonable doubt the alibi raised. I therefore do not believe it. It is an ulter lie concocted together the accused out of this problem

The accused told court that his home is only $3\frac{1}{2}$ miles from the home of the deceased Eujenio Otto. He also admmitted in cross-examin. ation that the said Eujenio Otto was a very prominent person in their village. But the accused denied that for six months he had not heard of the Robbery at the home the deceased and the subsequent death of the deceased. That he heard of these incidents only when he was arrested. This is incredible. If the deceased was a prominent person in that village, it is un believable that the news of his death or of the Robbery at his place resulting into his death should for six months not be heard with, the radious of $3\frac{1}{2}$ miles from his home. I think the accused must have been lying to cover up this offence. This is a lie which is bound to corroborate the prosecution case,

Considering the totality of the evidence on record, I agree with the gentlemen Assessors that the prosecution has proved its case beyond all reaschable doubt. I hence find the aroused guilty of Aggravated Robbery contrary to section 272 and $273(2)$ of the Penal Code Act and I convict him as charged.

This now leads me to consider the last count. It is count III. This charges the accused and other still at large with unlawfully and wilfully setting fire to Mrs Karla Otto's house. Contrary to section 307(a) of the Penal Code Act.

$4888688 - / 115$

To constitute- the offcncoudner the above the' section, the following' ingredients ?vre necessary:-

(1) that there was a wilful and unlawful setting on fire of a house.

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(2) that the accused did it\*

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Tn the instanct case, the prosecution contends that there was wilful and unlawful setting on fire of a house of Mrs Karla Otto at Madi Q \* Kiloc gillage in Kitgum District\* In support of this contention, the prosecution relies on the evidence of Mrs Karla Otto and that of Galdino Oango PV/2. Both these witnesses testified that on the 11.3.88 the group of soldiers of the Holy Spirit Movement stormed at r,t the home Sujenio Otto. That on the order of their commandant on \*fche <pot, the soldiers set-fire to five houses and six granneried in •'.:i the homestead. There was no suggestion from the evidence on record thit the burning of these houses and granrieries were accidental nor that they were set on fire on the authority of the owners of the houses. Hence the wilful setting on fire of these five houses and ' six graneeries was unlawful. For this believe these two witnesses.

As to whether it was the accused who set the houses on fire, the prosecution contends that this was sc. \* But the accused denied that he did it. He pleaded that he was at the material time at Balabek Patanga.

Clearly the accused is setting a defence of alibi. The law regarding this type of defence id clear. . It is that an accused who sets up such a defence does not assume the burden to,prove hi§ innocence. It is up to the prosecution to disprove the alibi

beyond reasonable doubt by producing evidence which places the accused squarely at the scene of crime at the material time.

- \_

In the instant case, the prosecution relies on the evidence of Mrs Karla Otto PW1 and that of Galdino Olango PW2. Both these witnesses testified that they had known the accused very well before the 11.3\*88 when the incident happened. Further that the incident took place during a broad day light time and that it lasted for about two hours.

I have already stated before that I found these two witnesses of the prosecution credible and I believe them. I found that the conditions favoured correct identification and that these two witnesses of the prosecution positively identified the accused at the scene of cim© at the material time.- This disproves the accused's defence of alibi and it must therefore fail.'

The evidence of both B71 and PW2 show that other soldiers than the accused set fire to the houses and granna-tues at the home of the deceased. That a total of five houses and s-x granneries were set on fire. I think it is really immatrial that rhe accused did not personally set fire on to the house or stole any article. In law where two or more persons formed a common intention to prosecute an unlawful purpose togehter with another and if in the process of executing that unlawful purpose on offence is committed which is the probable consequence of the execution of such unlawful purpose, each of the two or more - of them is deemed to have committed the offence. (Section 22 of the Fonal Code).

.../^

In the instant case, the evidence of Pw1 and PW2 shows that the accused and those soldiers of the Holy Spirits came to the deceased's home. That on their arrival, the soldiers arrested the deceased and his w wife Karla Otto, looted their Properties and set on fire five houses and six gsanneries in their homestead.

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If these group of Rebel soldiers came to arrest the deceased and his wife and to loot their properties that mission was unlawful. The setting on fire houses and granneries at the home of the deceased was clearly a probable result of the execution of that unlawful mission.. The evidence show that it was the accused who was giving orders.to these soldiers. They were thus working in a concert. There was no suggestion from the evidence • •' Way on record that the accused in any/dissocieted himself from the conduct of those soldiers in the looting of the deceased^s properties and setting his homestead on fire. In those circumstances I agree with the gentlemen Assessors that the Accused was equally guilty of those acts just as those dther soldiers who looted the properties' and set fire to the houses at the deceaseds homestead because they had common intention . (Section 22 of the Penal Code Act.)

The evidence on record show + hat f ive houses and six granneries at the home of the deceased were wilfully and unlawfully set on fire by these soldiers. The particulars of the offence allege that the'accused and others still at large wilfully and unlawfully set fire to the house of Mrs Karla Otto. The evidence of Mrs Karla Otto however show that five houses and six granneries were set on fire wilfully and unlawfully by these soldiers.

This was supported by the ovidcfW® of Galdino 0lango P.72, Mrs ^-arla Otto herself did not say in her evidence that one of those five houses was was hors. The court is to act on the evidence before it\* Where there is a gap in the evidence of the prosecution, it is not the duty of the court to fill that gap

In the instant case while it is clear that five houses at the home of the deceased Eujenio Otto were on 28/10/88 wilfully and unlawfully sot on fire by the accused and his gang, it is not clear if one of those houses belong to Mrs Karla Mtc\* All could belong tocher. ' If that is so which of the five houses is the accused to be convicted for wilfully and unlavzfully setting on fire. An accused person is entitled to know exactly what he is being convicted for. For instance in this case, the accused is entitled to know for which of the five houses which were u wilfully and unlawfully set on fire is he being convicted.

Since it is net clear which of the five nouses the accused is to be convicted for wilfully and. unlawfully ? iting on fire, it is not proper to convict tn? accused\* The '-t ■. >: ,-ur'uld have brought five counts of Arson Covering al-i the five hoi jc,5e fr. those circumstances I disagree with the gentlemen Assessors and gi /e the benefit of doubt to the accused. He is acquitted, of the offence in count No. Ill,- In the end the accused is ccnvicod in count No. 1 and Ko, 2 and acquitted of the offence in count 3®

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G. M. Okello

JUDGE .

17-1-91

9\*30 pum

Judgment delivered in open court

Present weres-

The Accused\*

Mr\* Oyarmoi for the Accused on state brief. tylr. Ogwal Olwa ROS. S\*A for the State. Mir. Ambrose Ayela Court Clerk Interpreters

Both Assessors -

Mr. Michael Odqar and Paul Aiiywar

G. M., Okello

JUDGE

17-1-91\*

SENTENCE;

Count Is The Accused shall suffer death as is authorised

by law.

Count II:- Sentence is reserved.

$\ddot{\cdot}$ .

$\overline{m}$ G. M. Okello

JUDGE

$\bigcirc$

$17-1-91.$

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