Uganda v Opio (Criminal Session Case 397 of 1995) [1996] UGHC 48 (4 October 1996)

Full Case Text

## THE REPUBLIC OF UGANDA

The Am Justice Egonda Nitende

IN THE HIGH COURT OF UGANDA AT SESSION HOLDEN AT LIRA

CRIMINAL SESSION CASE NO. 397/95

**UGANDA** PROSECUTION ......... -VERSUS-

ACCUSED OPIO FRANCIS ALIAS APOKA $\ldots\ldots\ldots\ldots\ldots\ldots\ldots$

BEFORE: THE HONOURABLE JUSTICE G. M. OKELLO

## JUDGEMENT

The accused, Opio Francis alias Apoka was indicted on a charge of murder contrary to section 183 of the Penal Code Act. The particulars of the offence alleged that Opio Francis alias Apoka on the 19th day of May 1994 at Omega Ipota Market in Lira District murdered Ogwang Albino.

When the charge was read and explained to him, the accused pleaded not guilty thus setting in issue all the essential elements in the offence charged. That meant that each and every essential element in the offence charged had to be proved beyond reasonable doubt if a conviction were to be secured against the accused. The essential elements requiring proof beyond reasonable doubt in the offence of murder are:-

- that the person alleged murdered is dead. $\overline{a}$ - that his death was unlawfully caused. <pre>b)</pre> - that whoever caused the death of the deceased had malice $c)$ afore thought. - that it was the accused who so caused the death of the $d$ ) deceased.

The law places the burden to prove the above essential elements "beyond reasonable doubt on the prosecution \* An accused does not bear the duty to prove his innocence as he is presumed innocent until proved guilty a

Tn a "bid to discharge that burden., the prosecution called the evidence of four witnesses

0cen Paulo who was the eye witness of the act which caused the death of the deceased testified as PV7 1 •

Dto David Okello of Lira Hospital who identified the handwriting tnd signature of Dr- Obua also of Lira Hospital testified as B' 2. Dro Obua performed Post Mortem examination on the body of the deceased;

Ogwang Stanley who identified the body of the deceased to the Doctor for post mortem examination gave evidence as PW 3; and Qwida Okwir Aryong the Vice Chairman Local Council I of Wilela, who was also at the same market testified as PW 4\*

The accused elected to give unsworn statement in-his defence and called no witnesses. Tn that unsworn ev.'Hico the accused denied that he caused the death of the deceased.

T shall now examine the evidence on record in more detail visa-vis each essential element of the offence charged to determine whether the prosecution have proved their case against the accused "beyond reasonable doubt.

On whether Ogwang Albino is dead, the evidence of Ocen Paulo (PW 1) indicated that he was a nephew to the said Ogwang Albino and that he saw the dead body of Albino Ogwang on 11/5/94 and later took part in its burial on 12/5/94 after a post mortem examination was carried on it by a Doctor. The above evidence was confirmed by

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the evidence of Ogwang Stanley who testified that he was the paternal uncle to the said Ogwang Albino, According to Stanley's evidence, he too saw the dead body of Ogwang Albino on 11/5/94, that he later identified the body to a Doctor who performed post mortem examination on it on $12/5/94$ before it was buried. He took part in the bunich of the said Carang Albino. The post mortem examination report dated 12/5/94 which was received in evidence through Dr. Demid Oballo II 2 revealed the cause of death of the said Albino Ogwang as head injury causing internal Beeding into the brain that resulted into the death of the deceased.

From the above evidence Mr. Tyabi Counsel for the state submitted that there was ample evidence to prove that the deceased Ogwang Albino is dead. He invited court to find so. I agree with The above evidence clarly indicated that the said Albino him. Ogwang is dead and the cause of his death too was shown. That evidence is cogent and I believe them. Like the assessors therefore I find that the prosecution have proved beyond reasonable doubt that Albino Ogwang is dead.

As to whether the death of the said Albino Ogwang was unlawfully caused, it is to be noted that in homicide cames death is always presumed to have been unlawful unless it was committed in circumstances which make it excusable. The above principle was laid down in the case of Gusambizi Wesonga -vs- R (1948) 15 EACA 65. Death is excusable if it is committed in self defence.

In the instant case, the evidence as to how the deceased met his death did not suggest that it was caused in circumstances which make it excusable. On the contrary the evidence of Ocen Paulo (PW?) who was present when the incident happened indicated that he was seated with the deceased in Ipota Market drinking enguli when the deceased was attacked by an assailant who struck him on the head

once with a stick\* Ocen Paulo further testified that from that 'blow\*, the deceased fell down and 'became unoonsious and died two days later, Pt is clear from the above evidence that-the deceased's death resulted from an unlawful assault on him. I believe that evidence. It is clear therefore that the death of Albino Ogwang was unlawfully caused. Like the Assessors I find that this ingredient too had been proved beyond reasonable doubt.

As was pointed out earlier in this judgement, an essential element for murder is that the assailant had the necessary malice aforethought when he caused the death of the deceased. Malice aforethough' is a mental element which is often difficult to prove by direct evidence. It can however be inferred from the surrounding circumstances in which the offence was committed. For instance, the conduct of the accused before, during and immediately after the commission of the offence, the weapon used, the manner of use and the part of the body on which applied. This principle was laid down in R v . Tubere (.1945) 12 EACA 63.

In the instant case, the evidence of both PW 1 and PW 4 indicated tlie assailant struck the deceased once on the head with a club. Decided case authorities indicate that where death is caused by use of a non lethol weapon, the inference of malice aforethought is much less readily drawn than where a lethol weapon like, a panga, spear, gund etc ±s;used. The above was the principle laid in Yoweri Damulirn. 23 EACA 501. In that case the accused assaulted the deceased with a stick with a diameter varying between one and one and half inches and weighing one and a half pound. It was a non lethol weapon. It was held that malice aforethought could not readily be inferred from the use of that weapon.

Similarly, the evidence in the instant case indicated that the deceased was struck once on the head with a stick whose thickness was described to be as big as a man's arm on one side and less on

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the other. Its weight was not estimated. It was a non lethol weapon though. Prom the above evidence,malice aforethought clearly could not "be readily inferred. The principle in Yoweri Bamuljra1 s oas.e above followed. For that reason, I find that this ingredient had not been proved beyond reasonable doubt.

On whether it was the accused who caused the degth of the deceased, the prosecution depended on the evidence of a single identifying witness of one Paulo Ocen PW 1. The law governing evidence of a single identifying witness was laid down in Abdala Bill Wendo and Anor Vs. R (1953) 2 BACA 1.66&gt; The rule formulated in that case is that where the prosecution relies on the evidence of one identifying witness, the court must treat that evidence of identification wiih much caution before basing any conviction on it, and that where circumstances favouring correct identification are lacking, corroboration of such evidence should be sought. Corroboration is an independent evidence which confirms not only that the offence was committed but that the accused committed it.

In the instant case Paulo Ocen testified that the incident happened at night when there was a bright moon light. In various parts of this country, in a bright moon light visibility is fairly good. One can identify a person who is reasonably closed to him, PW 1 testified that he was seated together with the deceased drinking lira-lira, Tadoba was with the person who was selling the drinks According to PW 1, the accused whom he had known from Childhood as, a village mate came and at first demanded to know from them who had called him "an LIU who is a thief". PW 1 testified that before they could answer, the accused grabbed the deceased and started to drag and assault him. The witness went on to say that in those conditions he identified the accused very well. The accused denied that he caused the death of the deceased or tha.t he was at the scene. I take it that he was pleading an alibi. The law governing an alibi is

that an accused who set up an alibi as an answer to a charge against him, is not under a duty to prove that alibi. It is the duty of the prosecution to destroy the alibi by loading evidence which places the accused squarely at the scene of crime •

Paulo Gcen (PW 1) testified that he had known the accused before the incident and that he had known him from childhood. That had not been disputed. A person whom one has known from Childhood is easy to identify in such a bright moon light more particularly when hewas as close as was described in this case. P/Z 1 impressed me as a truthful witness because he gave his evidence in a stright forward manner and answered questions put to him in cross-examination in a similar manner, I am therefore satisfied that he had accurately identified the accused as the assailant. I thus find that the accusers Alibi was a sham and must fail. In my view this ingredient too was proved beyond reasonable doubt.

No conviction can be properly entered for murder when malice aforethought is not proved beyond reasonable doubt. In this case, malice aforethought had not been proved beyond reasonable doubt. The accused is therefore found not quilty of murder'. He is however found quilty of manslaughter contrary to section 182 of the Penal Code Act\* This is a minor and cognate offence to murder. He is therefore convicted of manslaughter contrary to section' 182 of the Penal Code Act.

G. M. OKELLO

Judge

4th October, 1996

## WWCE.:-

Manslaughter of which the accused stands convicted carries a maximum sentence of life imprisonment. The practice of this courts is however not to impose maximum sentence on a first offender unless that is a mandatory sentence.

Tlic philosophy of sentence is that it must "befit not only the offence but also the offender.

In the instant case, the accused is a first offender, The period he has been in custody is said to be about two years since May T994. This will be taken into consideration. Domestic hardship of the accused is not relevant in considering sentence. In this case, considering that the accused is a first offender, the time he spent in custody prior to his tidal and the gravity of the offence, 1 sentence him to 4 years imprisonment.

G. M. OKELLO

Judge

4th October, 1996