Uganda v Olima (Criminal Session Case 30 of 90) [1991] UGHC 34 (24 January 1991)

Full Case Text

IN TH' HIGH COURT OF UGANDA-HOLDEN AT ARUA '"w" -)'osn CRIMINAL SESSION CASH NO. JO/9O UGANDA Vs TFRENZIO OLIMA B'FCR' HON. MR. JUSTICE G. M. CKFLLO.

J U Bi G M F N m

The accused in this case is called Te»\*nzio Olima. He wilfully and unlawfully s^t fir\* to his own house in which to his knowledge\_his crippled wife was. As a result \*-h\* wife was burn4- to death in the house. mhepe was no apparent motive for tha4- action.

On xh\* evening of the fateful nigh4-, \*-h\* accused started \*0 pace ab^u4- in his conrnound wi\*h a panga in his hand while talking \*o himself. H\* believed ^ha4- there were soldiers hiding in his nearby cassava^plantation in readiness to a^^ack them. In 4-h\*\_nigh4- of ♦-ha4- evening, while^s^ill maintaining 4ha4 belief, ^h\* accused told his wife ^ha4- they should run away as they were being attacked. \*rthe wife refused saying that he was mad. When he failed to pull the wife out with him, the accused set 4-he house\_on fire and ran \*o hide in the neighbouring home. According t0 his\_close relatives, the accused have had four a44acks of mental sickness before this dreadful incident; "'he doctor who examined him after this incident however found that xhe accused was mentally normal. 7he accused was arrested and eventually indicted in court/for /j the^manslaughtrr of Setina y;jurua contrary 4o Section 182 **of** the penal Code, "he particulars of this offence alleged \*hat on or about thels\* day of October 1985 a4, R\*triko village in arua District 'Vpsnzio Olima, unlawfully caused the death of Satina Tjurua.

In Count 2, accused was indic\*\*d for arson contrary to spf^-ion 3>7(a) of/h\* penal Code Act.\_ "'he particulars of which alleged 4ha4 on or about the q^t day of October 1985 ®t petriko village in arua District merenzio Olima wilfully and unlawfully set fire t© a house the property of the said '''erenzio Olima.

In ord<r 4-o secure a conviction for th\*' offence- of manslaughter, th«- followinf- ingredients must rs\* ablished: -

- (1) tha\*- \*-he sp'rson whose death is alleged to have b^n unlawfully caused is ct^adk\* - (2) that i\* was thn accused who unlawfully caused \*-h« death of tho deceased.

'''he burden of proving the above ingredients lies squarelly on the prosection and the standard of proof required is beyond reasonable doubt.

As to whether Setina Ejurua whose alleged death was alleged to have been unlawfully caused by the accused is dead, there is ample evidence to show that she is dead. "'he evidence of PWI Mariana Bu^ru shows that Setina ^jurua was hep n\*tUral mother and that she died in a house which was set on fire, '''his evidence's corroborated by \*hn evidence of Luja Deru (PW2) who testified rhat on 30/9/85 she was informed by Mariana Butrru (PWI) xhat the house in which Setina ^jurua was sleeping was set on fire. mhat\_the said . Setina rjurua was tho daught-r of her (PW2's) sis^r. mhat on this\_ information the witn-ss ran to xhr scene where she found xhat the roof of thn burning house had already ^collapsed. "'hat while at the scenex thn witness participated in pouring water to the remains of the burning house and after a s\*arch\_saw the burnt body of the deceased Sfltina Pjurua from the burnt house.

\_mhere is the evidence of Kasiano Dranfc PvA which corroborates the tv/0 above evidence. He tp6\*-ifiod that 4-he deceased Sehina ^jurua was his sister-in-law xhe wife of his elder brother "'erenzio Olima. ^mhat in the night of 30/9/85 Mariana Buteru (PV/I) reported to him that th^ir house was on fire, "'hat when he got out, the witness saw fire in the direction of \*-h\* accused's hom

"hat the witness went to the scene where he participated in the removal of the body of the deceased Setina Ejurua from the ashes of the burnt house.

The death of the deceased Setina Ejurua was further confirmed by the evidence of DR Emmanuel Iraku PW6. He testified +ha+ on 2/10/85 a+ Re+riko village in arua Dis+ric+ he carried out Post Mortem examination on a body which was iden-\*ified \*o him as \*ha\* of Se\*ina Fjurua. "ha\* \*he wi\*ness found 100% deep burn of the body with the flesh with absolutely no skin coverings. "hat no scars, tribal marks or any external marks of violence could be identified. He determined the causes of death as being complete failure of circulatory and Respiratory functions coupled with the heattstroke following the 100% deep burns.

From the above wvidence like the gentlemen assessors, I found no difficulty in finding that the deceased Setina Fjurua is dead. The pros-cution has hence proved this ingredient beyond reasonable doubt.

On whether it was the accused who unlawfully caused the dra+h of +he deceased Se+ina Fjurua, +he prosecu+ion case rests partly on circumstantial evidence and partly on the $ext-ra-judicial$ statement made by the accused on 17/10/85 and which which was admitted under Section 64 of the TID.

As regards circumstantial evidence, I told the gentlemen Assessors as I dir-c+ my mind now in +his judgm-n+ +ha+ +o base a conviction on circumstantial evidence, the incriminating facts produced by that evidence must irresistibly point to the accused's/and be incapable of explanation upon /guilt myy other reasonable hypothesis than that of guilt of the accused.

$\ldots,$

See Musoke -Vs- R (1958) FA 715. mumuhritrowVs- Uganda (1967) EA 328, Uganda Vs Mubyazi+a (1972) UTR J

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In the instant casp, circumstantial evidence is made up of \*he evidence of Mariana Buteru (PWl)and that of Anjelina Ogwaru PW3\* r Mariaaa Butoru/-estified ^-ha^^whcn she left/(o\*q) for b^d, in a house in neighbouring h°me,\_thp accuspd and thp deceased were in the samp house. BUttthat when shp was informpd J-hat th^ir house which her parm^s sleep was on jfire, shp rushpd to/scene and did no4- find thp accused thepp. /^he Anjplina 0gwaru\_(PW3) testified 4hat on thp fateful night shp hpard a knock a4- th^ door of h^r co-wife and that\_\*-his was soon followpd by a voicp which shp recognised as xhat of the accused who is h^r neighbour. "'hat whpn shp got out, shp saw thp house of accused on fire. ^he evidence of Kasiano Droni PV/4 shows that whpn he\_arrived at \*he scpn\*» h® did not find thp accused there but \*hat lat#>r, the accuspd was arrested in thp housp of onp Mary where ha was hiding.

n5hp\_abovpevidence irresistibly show that \*he accuspd after setting t^ housp on firp ran/o hide himself in the house of\_on« Mary where hp was eventually found and arrps^d.

Another implicating evidence agains\* <-hp accuspd is his own extra judicial statement\_which was made on 17/1^/85 and whichwas admitted. under section 64 of the TID< In that, statement, 4-he accuspd stated that he toid\_his wifp to run away with him as they were b^ing attacked but 4-ha\* >he wifp (now deceased) rrfused saying that he was\_mad. "'hat when he failed to^pull h-r out o ran\_with him, he\_4-old h^r that if she was not prepared to^run out he would set 4-hr house on firp whereupon hr immediately so4 house on fire and ran t© 4h° house of Onanio.

"'he above evidence clearly shows that i+ Was thp accused who unlawfully set fire to \*-he house in which his wifp Setina ■Rjurua was burnt *\*-o* death. Like thp gentlemen Assessor I find tha<- \*hp prosecution has proved beyond reasonable doubt that it was the accused who unlawfully caused/death of to his/tfce wife Setina Hjurua.

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## Couh» *2;-*

From ^-h\*' some circumstantial evidence mad\* up of the evidence of PW1 Mariana But^ru, PW3 Anjelina Ogwaru and PW4 Kasiano Drw<4 couple wixh 4-h\* extra-judicial s^^mrn4- which was made by '-he accused on 17/10/85 and which was admitted at th\*1 preliminary hearing under section 6^ of \*hp TID, I agree with the assessors that \*he prosecution has proved beyond reasonable doubt that \_4-he\_accused wilfully and unlawfully set fire to his own house at Retriko village ihn arua District.

"'he accused pleaded\_insanity • *s* in answer to the two charges against him. I told the Assessors as I\_now direct my mind in this judgment that a person who at the time of the act oy Omission was by reason of a^disease of\_the mind however caused was incapable\_of understanding what he was doing or of knowing that he ought not \*o do xho~act or make the omission, is not criminally\_liable for his act or omission, (see S.12 of the penal Code Act).\_

I furth^rwxold '•h\* Assessors as I direct my mind^in this judgm-nt^h?/ t^r burden of proving insani\*y lies on the accused though xhat j-he standard of proof required is on the balance of probability. (see Section 11 of the Penal Code Act). ftee also R v Magaxa s/o Kachehakana (1957) FA 35ft.

In the instant case, \*he evidence of Luja Deru (PW4), Pio Yiodra PW5« \_Mariana Bu+eru PV/I and Kasiano Droni PV/4 show^ generally xhat the accused have had intermittent attacks of mental illness four^times in a period of about one to tWo years before this incident. mhat whenever he had any of\_SUchattacks he would either sit in one place quietly without talking to anybody even if he\_was asked, or he would walk-about talking to himself and that sometimes he would refuse to drink water in his own house save in xhe house of his mother which is far from his homestead.

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The evidence on record (Mariana Buteru PWI) shows that prior +0 \*his incident, the accused paced about in his compound with a pange in his hands and talking to himself. He believed to attack him. that soldiers were coming to his home. In his extra-judicial s\*a\*emen\* \*he accused said and I quote

"Before I sleep, I smoke one Cigara++es All of sudden I developed allucinations and I imagined some people were out side in my cassava plan+a+ion in+ending +o a++ack. I +old my wife that we should run away as we were being attacked. My wife "old me I was mad. I grabbed her hand and pulled her out side. But she resisted and hang on the door. I then told her if she was not prepared to run, I was going to set the house on fire. I immediately set the house on fire and I ran to Onario's house. I left her in the house. My brothers docked me and later found me in Onario's house."

I' is clear from the above quotation that the accused set the house on fire because he believed that they were in danger of being a++ack $\circ$ d. I+ was only af+ $\circ$ r h $\circ$ failed +o pull his wife \*o run away with him from that danger that he set the house on fire and ran away alone. "This conduct of the accused immediately before and immediately after the setting on fire the house in which his wife was, shows clearly +ha+ his running away from the scene and hiding in the neighbouring home was far from an act of guilty conscience. On the contrary it shows that he was fleeing away from an imaginary danger. It is quite probable \*ha+ \*he accused did no+ know \*ha+ he ough\* no\* \*o se\* \*he house on five more so when his wife was inside i+. In agreement with \*he gentlemen Assessors \*herefore, I find \*ha\* \*he accused is net guil'y of both offences by reason of insanity. (S.46(1) $mID$ ).

> G. M. OKELLO JUDGE $24 - 1 - 91.$

$\epsilon$

Judgment delivered in the presence of

- (1) Accused. - (2) Mr. Oyarmoi for the Accused on state brief.

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- (3) Mr. Lubwa R. S. S. A++orney for s+a+ $\sigma$ . - (4) Mr. Kenyi Court cl.rk Interpreter.

## Lubwa.

I pray that the acoused be dealt with in accordance. with the Law.

## Coury.

Accused is ordered under Section 46(2) of TID to be detained in custody in Government Prison Arua pending the Minister's Order.

Constitutions (S) G. M. OKELLO.

$J$ U D G F. 24-1-91.