IN THE COURT OF APPEAL FOR EAST AFRICA
CORAM: (NEWBOLD. P., DUFFUS AND SPRY, J.A)
CRIMINAL APPEAL N0 8 OF 1968
[Appeal from a conviction and sentence of the High Court of Uganda at Gulu (Dickson, J.) dated 29th December, 1967, in Criminal Sessions Case No. 636 of 1967].
17th April, 1968.
REASONS FOR JUDGMENT
SPRY J .A.
The appellant, Iko Lukoya, was convicted of the murder of one Paulo Localamoi and sentenced to death. He appealed to this Court. We heard his appeal on the 7th March, 1968, when we allowed the appeal, quashed the conviction and set aside the sentence of death, substituted a conviction of manslaughter and imposed a sentence of six years' imprisonment. We now give our reasons.
It appears that on the evening of 21st November, 1966, a meeting was held in the compound of one Alfonsio Odwar, at which more than ten persons were present, including the appellant and one
Jekeria Oderi. A path runs through the compound, and while the meeting was going on, a stranger was observed passing along the path in the direction of the homes of the appellant and Jekeria. He is said to have been carrying a light cane, less than two feet long. By this time, the appellant had left the meeting. Jekeria spoke to the stranger but received no reply. Jekeria and Alfonsio followed the stranger, who began to run and Jekeria then raised an alarm. Some cattle belonging to Jekeria had been stolen that day and he thought the stranger might be the thief. According to the witnesses, it seems that neither Jekeria nor Alfonsio had any weapon. Other people from the meeting followed. It seems to have been dark, although the evidence on this is contradictory, and there was probably a good deal of confusion. Much of the evidence is unsatisfactory and witnesses seem to have described what they thought must have happened rather than what they had actually seen.
The next fact that was established is that one Nason Yongo, who had also been at the meeting, arrived at a point about thirty yards from the compound, where he found the stranger lying on the ground "covered with blood" and Jekeria Alfonsio and the appellant near him, the appellant having a spear in his hand. He asked the appellant who had speared the stranger and the appellant replied "I speared him". Shortly afterwards, another witness, Olebe Tope, met the appellant about twenty yards away, when the appellant said that he had killed a man. The witness did not see the appellant carrying anything at that stage. In the meanwhile, the stranger had sprung up and ran away. He was chased by the people present but escaped. It appears that he was found alive next morning, though there is no evidence when or where. He was taken to a dispensary, where he died at about 6.30.p.m. Before he died, he made two statements to a police officer, one on the way to, and one at, the dispensary; the latter was recorded by the police officer. The deceased spoke in the Digo language, which was not known to the police officer and the deceased's brother Tobielo Localamoi, acted as interpreter. The appellant made various statements. At the time of his arrest, he said that an alarm was sounded, there were cries of "thief", and he ran there and speared a man. Later, he made a cautioned statement in which he said-
"I admit the charge. I killed him. I was coming from local dance when I heard an alarm and went there to answer it, there I found many people chasing a person who was said to be a thief and I speared him."
He also took a party of police officers to a house where a spear was found. At the trial, the appellant made a lengthy unsworn statement. Much of it tallied with what has already been related. Part, however was new. He said that he left his house on hearing the alarm, carrying a spear and two hoes. Passing the house of a neighbor he was told that people were chasing a thief. There he met a man running and called on him to stop. Instead, the man threw a spear at him but missed. He picked up the spear and, as the man rushed towards him, thrust it at him. He said that he did not know what part of the body he struck. The man then ran away. He concluded by saying that he told the people who had answered the alarm that the man had nearly killed him.
The learned judge summed up fully to the assessors and particularly drew their attention to the possibilities of self-defence and provocation raised by the appellant's unsworn statement. One of the two assessors disbelieved that statement, rejected both self defence and provocation and advised that the appellant should be found guilty of murder. The other thought he should be given the benefit of the doubt and found guilty of manslaughter only.
The learned judge reviewed the evidence in a long and careful judgment. He found that the evidence established beyond doubt that the deceased had died as the result of being speared by the appellant. He held that the appellant's unsworn statement was "a tissue of lies" and for this reason he rejected the defence of provocation. In arriving at that conclusion, the learned judge was clearly influenced first, by the evidence that the deceased had not been carrying a spear and, secondly, by the contents of the dying declarations. It was unfortunate that the learned judge apparently overlooked the fact that the evidence of both dying declarations was given by a person who was unable to understand the words spoken by the deceased and had therefore to employ an interpreter. That interpreter was called as a witness to give evidence of identification but no questions were put to him regarding the dying declarations or his interpretation. The result of this unfortunate oversight is that the evidence regarding the dying declarations must be wholly rejected as being hearsay. (R.v.Gutosi s/o Wamaga1e, (1947) 14 E.A.C.A. 117; R. v. Abusolome Nankome, (1947) 14 E.A.C.A.119).
Mr. Pandit, for the appellant, submitted that the medical evidence left a doubt whether it was the appellant who had inflicted the fatal wound. The evidence showed that the deceased died at 6.30.p.m. on 22nd November. The doctor said that the injuries from which the deceased died had been inflicted "up to ten hours" before death. If this was correct, the injuries had been inflicted not earlier than 8.30.a.m. on 22nd November, which was long after the appellant was alleged to have speared the deceased. With respect, we are not persuaded by this argument. We think the doctor may have under-estimated the interval of time between the infliction of the injuries and death. The appellant himself said to two witnesses that he had killed the stranger, and he was seen, with his spear, near the deceased who was lying on the ground "covered with blood".
We do not think there can be any doubt that the injuries the deceased had then sustained were those from which he died. It will be recalled that after the stabbing, the deceased escaped from his pursuers and it must be inferred that the people who eventually found him and took him to the dispensary were sympathetic towards him. The only question of real substance is whether malice afore thought was proved. Mr. Pandit argued that there must have been some provocation; otherwise the fact of the killing would have been incredible. There, we cannot agree.
The wanton killing of a suspected thief is all too common in East Africa. The difficulty as we see it lies in the lack of evidence as to what happened immediately before and at the moment of the killing. There is only the appellant's unsworn statement, which the learned judge did not believe. It is a curious and unexplained fact that neither Alfonsio nor Jekeria was called as a witness, although on the face of the evidence they must have known what happened. The appellant was not one of those who pursued the deceased from Alfonsio’s compound. We know that the killing occurred at night,that the appellant was answering an alarm, and that he stabbed the deceased, but we do not know the circumstances of their meeting. The burden was on the prosecution to prove malice aforethought and that burden has not been discharged. As that burden has not been discharged the conviction of murder cannot stand.
On the other hand, we were in no doubt that it was the appellant who killed the deceased and that the killing was unlawful. We therefore substituted a conviction of manslaughter.