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R. v. Lugalo & Others Crim. Sass 79-Dododm-71; 24/8/71; Mnzavas J.



R. v. Lugalo & Others Crim. Sass 79-Dododm-71; 24/8/71; Mnzavas J.

            The three accused were jointly charged with murder c/s 196 of the Penal Code. The deceased, his wife, the three accused and others had been drinking in a pombe bar from 2 p. m. on the material date until sunset. The deceased his wife and a friend left the pombe shop together and were soon followed by the three accused. There was evidence of a quarrel and an exchange of abuse between the deceased took one path the deceased, his friend and the first accused another and the other two accuseds a third. There was also some evidence of a fight between the deceased and the second accused egged on by the other two accused. The deceased did not arrive home that night and he next morning his wife left home to enquire about is whereabouts and found him dead at the side of a path. The cause of death was a wound in he neck 1” deep by ½” wide. During police investigations blood-stained clothes of all three accused were recovered. They explained that they had slaughtered a goat a few days before. The Government Chemist’s report was that the blood-stains on the clothing of the first two accused were human blood of the same group as the deceased (AB). The blood groups of these accuseds were Group B rhesus positive and Group O rhesus positive respectively. The blood on the clothing of the third accused was not human. The third accused was acquitted and the other two were convicted although the assessors had opined that they were all not guilty.

                        Held: (1) “For an accused to be found guilty on purely circumstantial evidence the exculpatory facts must be such as to be incompatible with the innocence of the accused and incapable of any other reasonable explanation than that of the accused’s guilt.” (2) “This evidence [of the blood-stains on the two accuseds’ clothing being of the same blood group as the deceased] added to the evidence that the two accuseds were involved in a fight with the deceased only hours before he was found dead and the bogus explanation as to how their clothes got blood stains clearly show that the two accused had good reason to tell lies. The totality of the inculpatory facts are in my view incapable of any other reasonable explanation than that [the first two accuseds] re implicated with the death of the deceased”. (3) “The only evidence [of malice aforethought] is to the effect that the two accused and the deceased were under the influence of alcohol when they started quarrelling ………. The doctor was not available for cross-examination and it is therefore impossible to say with any amount of certainty the amount of force used in inflicting the fatal wound. From the above it is clear that there is a lot of doubt regarding malice aforethought ………. The Republic has failed to prove malice aforethought [R. v. Joseph Byrashengo & anor. (1946) 13 E. A. C. A. 187 followed]. (4) The accuseds were found not guilty of murder but guilty of manslaughter

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