Wakilii

Uganda v RA 21892 Sgt. Pastore Tako (Criminal Session No. 258 93)

High Court · [1994] UGHC 163 · 1994 Conviction — Manslaughter AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal trial on indictment for murder
Decision
Accused convicted of manslaughter after being indicted for murder

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court convicted the accused soldier of manslaughter rather than murder. The court held that although the accused caused the death of the deceased through torture in pursuit of a common unlawful intention with other soldiers to extract information about alleged witchcraft, the prosecution failed to prove malice aforethought. The severe torture using non-lethal weapons and methods was intended to punish and extract information, not to cause death. The doctrine of common intention under section 22 of the Penal Code Act made each participant in the unlawful torture responsible for the death that resulted.

Outcome

Accused convicted of manslaughter after being indicted for murder

Facts

On 19 January 1992, the accused sergeant and another soldier arrested the deceased Filimoni Pili and Martin Eraga on allegations of witchcraft and possession of poison. They were taken to the NRA Military Barracks at Loropi Trading Centre in Moyo District. During the journey, the accused and his colleague beat them with sticks. At the barracks, the accused invited other soldiers to beat them. About seven soldiers tortured the victims by beating, boxing, kicking, tying them kandoya style, burning them with molten jerrycan, and subjecting them to other severe forms of torture. The deceased was suspended on a tree, had red pepper rubbed on his fresh wounds, and had a large stone placed on his neck. Two women were also brought and tortured on similar allegations. The deceased groaned in pain through the night and died. His body was handed to the RC III Chairman for burial the following morning. Military authorities obstructed further investigation and refused to allow a post mortem examination.

Issues

  1. Whether the deceased Filimoni Pili is dead.
  2. Whether the death of the deceased was unlawfully caused.
  3. Whether it was the accused who caused the death of the deceased.
  4. Whether there was common intention between the accused and other soldiers in the torture of the deceased.
  5. Whether the accused had malice aforethought when he caused the death of the deceased.

Orders

  • Accused not found guilty of murder.
  • Accused convicted of manslaughter contrary to section 182 of the Penal Code Act.

Rules and key headnotes

Murder — Essential Elements — Burden of Proof
To secure a conviction for murder, the prosecution must prove beyond reasonable doubt: (1) that the person alleged murdered is dead; (2) that the death was unlawfully caused; (3) that it was caused by the accused; and (4) that the killer had malice aforethought when he caused the death of the deceased.
Proof of Death — Medical Evidence — Alternative Evidence
While medical evidence is the best evidence to prove death and its cause, it is open to court to rely on other cogent evidence where medical evidence is not available.
Common Intention — Section 22 Penal Code Act — Joint Enterprise
Where two or more persons engage in a common concert to pursue an unlawful purpose and in the course of that endeavour an offence is committed, each of them will be deemed to have committed the offence. Common intention can be gathered from the presence of the accused at the scene and his failure to dissociate himself from the act or omission resulting in the commission of the offence.
Credibility of Witnesses — Consistency — Minor Inconsistencies
Consistency or inconsistency of a witness is a relevant consideration in assessing his or her credibility. Where evidence contains grave inconsistency unless satisfactorily explained, it usually but not necessarily results in the evidence being rejected. Minor inconsistency, however, unless it points to deliberate untruthfulness, does not have the same effect. A judge has power to find a witness substantially truthful even though he has lied in some respect.
Homicide — Unlawful Killing — Presumption — Rebuttal
In homicide cases, death is presumed to have been unlawfully caused unless it is shown that it was caused by accident or in circumstances which make it excusable. The presumption is rebuttable by the accused leading evidence to show that the death was either accidental or committed in circumstances which make the killing excusable, such as self-defence. The standard of proof required to discharge that burden is low — on the balance of probabilities.
Malice Aforethought — Inference — Non-Lethal Weapons — Intention to Torture
Malice aforethought may be inferred from the conduct of the accused immediately before the commission of the offence, the type of weapon used, the manner in which it was used, and the part of the body on which it was applied. Where death is caused by the use of non-lethal weapons, the inference of malice aforethought is much less readily drawn. Where the common intention was to torture to extract information rather than to kill, and non-lethal methods were used, malice aforethought may not be established even if the torture was severe.

Legislation cited (3)

Cases cited (8)

  • Leonard Asineath v Uganda (1967) EA 206
  • Republic v Cheya & Another (1973) EA 500
  • Uganda v Paddy Kalenzi (1989) KLR 233
  • Stanley Manuka v Uganda (1978) HCB 179
  • Alfred Tajar v Uganda (1969) EACA Cr. Appeal No. 167/69
  • R v Gusambizi Wesonga (1948) 15 EACA 65
  • Festo Shirabu s/o Musunga v R (1955) 22 EACA 454
  • Yoweri Damulira v R (1956) 23 EACA 50

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Uganda v RA 21892 Sgt. Pastore Tako (Criminal Session No. 258_93) [1994] UGHC 163 (9 May 1994)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.