R. v. Hirarivs Crim Sass. 85-M-70; 21/9/70; Mnzavas, Ag. J.

R. v. Hirarivs Crim Sass. 85-M-70; 21/9/70; Mnzavas, Ag. J.

The accused was charged with murder c/s 196 of the Penal Code. There was conflicting testimony as to what events actually led to the death of the deceased. The a prosecution alleged that the accused, the deceased and other people were driving cattle to Mugumu Primary Court and on the way the accused asked the deceased for Shs. 100/- as a reward for helping him to recover the stolen cattle.. The deceased replied that he had no money to give him and thereupon the accused lowered his gun from his shoulder and aimed the muzzle at the deceased and shot him. Several prosecution witnesses gave evidence to the same effect. According to the defence case, the accused was awaked one nigh by an alarm from the deceased’s house in order to help him to find his missing cattle. After finding the cattle, on the way to Mugumu Primary Court the accused remembered that his gun was loaded and he lowered his gun from his shoulder and unloaded two bullets. He then pulled the unloading gadget three times but nothing came out and so he was satisfied that there were no more bullets in the gun. He then held his gun the muzzle directed to the ground and pulled its case up with his right hand. As he was doing so a shot fired from the gun and injured the deceased on his left leg. This version of accidental shooting was supported by some witnesses.

            Held (1)”Before a person is convicted of a criminal offence the prosecution must establish not only the act or the omission which caused the offence but must over and above also show that the act or omission was done with guilty intention i.e. there was mens rea. No man may be found guilty of a crime unless it is clearly proved that the forbidden act was done with a legally reprehensible state of mind. In the present case there is no dispute that the bullet that killed the deceased was fired by the accused from a gun he was carrying. The prosecution to secure a conviction of murder has to prove that the accused in shooting the deceased did so with the intention of killing the deceased or at least with the intention of causing him grievous harm. The prosecution has tried to prove that this

Was so but all the prosecution witnesses have been so hopelessly discredited by the able cross – examination by the defence that I can only come to the inevitable conclusion that either the prosecution witnesses were not at the scene when the deceased was shot or if they were there they did not want to tell the court the whole truth. (2) “The testimony of the accused, supported as it is by Nyanduli (D. W. 3) and Matiko Marwa (P. W. 4) makes me believe that the shooting was without malice aforethought. If the accused positively intended to kill the deceased one would have expected him to have directed the muzzle of his gun at a much more vulnerable part of the body that at deceased’s leg. What is even more surprising, if the accused wanted to kill the deceased why should he have waited up to the time they were only few paces to the primary court?” (3) “If a person who intends a result from his acts, or is guilty of indifference as to what would happen, that is, he is reckless in running the risk of what may happen, then he will in my view advert to the result in question. If the result of what he expected is legally reprehensible then he is criminally liable. But as was held in R. v. NICHOLAS (1874) 13 Cox at page 76 – “Where negligence will not do you must be of opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not.” In the present case the evidence shows that the accused did take care to see that there was no remaining bullet in his gun before he directed the muzzle to the ground as he was pulling the case up but unfortunately as it appears there was still a bullet jammed in the gun and which shot out as the case touched the trigger. I see no recklessness on the part of the accused to warrant this court to proceed against him criminally.” (4) Accused acquitted.