SUDAN GOVERNMENT vs. YOELE LOWIYA

AC-CP-335-59

Reference for Confirmation

Principles

  Criminal law—Murder—Sudan Penal Code, s. 251—Circumstantial evidence, meaning of

   “It is a fundamental principle of universal application in cases dependent on circumstantial evidence that in order to justify the inference of guilt: (1) the incriminating facts must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of guilt, otherwise the accused must be given the benefit of the doubt; (2) the circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be closely connected with the fact sought to be inferred therefrom.”
    Statement from Sarkar on Evidence, 9 edition, p. 30, approved.

Judgment

    The facts appear from the note of His Honor Judge Lutfi P.J.

    17th December 1959. Lutfi P.J. (with the authority of the Chief Justice): —The facts of this case are very simple. They are as follows:

Raeli Abi Jaja was a Kakwa girl of about twenty-five who was brought up by her uncle Lawya Taja in one of the villages of theGimunu vicinity. Her mother is dead and her father is insane. On 2nd June 1959 a dance was being held at the village where her father lives and she went there together with other people after she had her uncle’s permission. She was seen dancing at the said place but on the same night she disappeared. On or about 11th June 1959 a certain woman Dammaria Gua (PW. 9) discovered remnants of a human being which she could not identify. It was only a skull and scattered bones. For some reason she kept it as a secret and did not inform the authorities. On 21st June 1959 a search party went out looking for the missing girl and the said remnants were found together with a necklace made of red beads. People in the vicinity were questioned and suspicion was directed towards two persons, Yoele Lowiya and Lado Lajaro. A Magisterial Inquiry was held on 2 October 1959 which resulted in the discharge of the second accused (Lado Lajaro) and the charging of first accused with the murder of Raeli. He was tried by a Major Court and on 12th November 1959 he was convicted and sentenced to death.

    The evidence on which the conviction of the said accused was based is summarized as follows: —

(1) That in the early morning of 3rd June 1959 at about 3 a.m. the accused Yoele Lowiya was seen by his uncle Yesefa Ida at the dancing place taking Raeli by the hand and going towards the

                                                                                                                                                                              S.L.J.R-6*.

direction where the bones were found and that he returned at about 5a.m. without the girl, looking gloomy and worried.

(2) That on 19 June 1959 at the house of one Eisa Taja where a dance was held and merissa was served, accused for no reason started to question the insane father of the missing girl about her disappearance.

(3) That a day before the discovery of the skull and bones, accused has slaughtered a sheep which according to the local custom of the Kakwa is done on certain occasions, one of which is when a Kakwa kills a human being.

(4) That accused on 19th June 1959 has banged his head against the wall of the house of one Timalo Taja who is closely related to the missing girl, which indicated according to local custom that he has killed a relative of the owner of the said house.

(5) That the missing girl’s father was once the husband of the accused’s late mother who divorced him when he became mad and she had died shortly after the said divorce and that accused is of opinion that she was killed by Raeli’s father and so he murdered his daughter as a revenge.

    Accused admitted that he has attended the dance on 2nd June I9 and denied the following:—

(a) He denied that he had taken Raeli at 3 a.m. from the dancing place.

(b) He denied the questioning of Raeli’s father about her disappearance.

(c) He denied banging his head against the wall of Timalo’s house.

(d) He denied the killing of a sheep on 20th June 1959 and alleged that it was a ram         slain     by his brother Tadaya.

(e) He denied that it is a Kakwa custom to slaughter a sheep by the murderer.

(f) He denied seeing Raeli at the dancing place and denied the existence of any hatred towards the girl’s father or his brother.

    The above is a summary of the facts as set out by the trial Court and the evidence adduced, together with the accused’s reply.

Before discussing the facts or the evidence assembled by the prosecution, there are two important points which must be ascertained in cases of this nature:—

(a) First: the identity of the body found. (b) Secondly: the cause of death.

Taking the first point we find that the Court has arrived at the conclusion that the bones found were those of the missing girl on the following grounds: — (1) that Raeli was seen wearing a necklace similar to the one found at the scene; (2) that nobody among the villagers living in the vicinity was reported missing except Raeli.

   The skull and bones could not be identified by any person and no person could tell even whether they are the bones of a male or a female. The skull is hollow and bones were scattered and some of them were missing. So it can be the bones of Raeli and it can be those of any other person. The red beads found with the bones and identified as being similar to those which Raeli used to wear round her neck are not conclusive evidence that the bones are hers. The same beads are used by other girls in the vicinity and might be elsewhere and not by Raeli alone. Asenita Iga (PW. 6— Magisterial Inquiry) testified that the same beads of the same color are used by her (by the witness). Jeneti Simon (PW. 4—Magisterial Inquiry) could not identify the said beads as the same ones belonging to Raeli, owing to the similarity of such beads. Nora Pita (PW.5—Magisterial Inquiry) stated that it was dark and she could not tell whether Raeli was wearing the said necklace on the same night or not. So the beads found can be the property of the missing girl and can be also the property of any other person, but there is nothing to prove that they are Raeli’s and nobody else’s.

    The other point deals with the disappearance of the said girl and the conclusion drawn that as long as nobody else is missing then the bones found must be hers. This is also doubtful. It is a logical conclusion but it does not exclude the probability that the girl might still be alive and that the said bones are the bones of a person from the same village whose disappearance is not yet discovered or of a stranger or a visitor or a traveler.

    It is therefore evidently clear that the identity of the body found could not be established and the evidence adduced only arouses suspicion but does not lead to certainty.

    This brings us to the second point, which is the cause of death, if the said bones were identified as being those of Raeli is there any evidence to show that she was murdered?

    The Medical Assistant who examined the bones could not show the cause of death. This is due to the lapse of time and the destruction of the body by vultures and animals. No sign of violence was noticed and no weapon of any kind could be discovered or shown to have been used. If she was really dead no person can tell whether it was a normal death or whether she was killed by any person in any manner. So as regards the cause of death, it cannot be said that it was murder and it cannot be said that it was culpable homicide not amounting to murder.

    The evidence adduced is wholly circumstantial evidence, and in a case of this nature (murder) a higher degree of assurance is required. The chain of evidence must be so complete as not to leave any reasonable ground for a conclusion therefrom consistent with the innocence of the accused. “ It is a fundamental principle of universal application in cases dependent on circumstantial evidence, that in order to justify the inference of guilt (1) the

incriminating facts must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt, otherwise the accused must be given the benefit of doubt. (2) The circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be closely connected with the fact sought to be informed therefrom.” (Sarkar on Evidence, 9 edition, p. 30.)

   These are the fundamental principles of circumstantial evidence and the essential requirements. So let us see whether the evidence adduced fulfils the said requirements and whether it leads to the guilt of nobody else except the accused.

     Accused’s uncle, Yesefa Ida, testified that he had seen him (accused) in the early morning of 3rd June 1959 taking Raeli by the hand and going towards the direction where the bones were found and that he came back alone, exhausted and worried. The accused denied this and alleged that he had not seen her on that night. No other witnesses supported the statement of this witness but on the contrary different statements were given in respect of this incident as well as other incidents mentioned by him.

    Gie Timato (PW. 10—Trial) stated that “the last time I saw deceased was in the night of the dance in Matiya’s house when we went to see Poni who was drunk. The owner of the house sent us out, deceased remained behind”. Another, Jeneti Simon (PW. 4—Magisterial Inquiry) stated as follows: —“While we were in the dancing place Lusi Poni became totally drunk. We took Lusi to the house of Matiya Lwo. We took Lusi to the house of Matiya in the company of deceased Raeli. Then we left Raeli, Lusi and the wife of Matiya named Poibe inside the house and returned to the dancing ground. In the morning Pita went and brought Lusi from the house of Matiya”.

    A certain Nora Pita (PW. 10—Trial) states as follows:—” I visited Matiya’s house on the night of the dance. Deceased was with us. We went to see Poni who was drunk. We left deceased behind and returned to the dance. I did not see her ever after”.

   All these witnesses prove that the last time they have seen Raeli was at Matiya’s house and that she did not return to the dancing ground. Their statements are incompatible with that of the only witness who said that he has seen accused taking Raeli by the hand from the dancing place at 3 a.m. in the early morning of 3 June 1959.

The same witness (Yesef a Ida) stated also that when accused came back at 5 a.m. he was alone and seemed to be worried about something and that he gave him merissa which he refused and which was accepted by the Chief Retainer Ajo Menu. The Chief Retainer did not support him in that incident and he stated that the merissa was offered to him by

                                                                 
Matiya, which he refused, and denied seeing the accused at the dancing place. (PW. 21 —Magisterial Inquiry.) So one of them must be a liar.

    In the Magisterial Inquiry the same witness (Yesef a Ida) when referring to the accused’s motive, stated: —

“His intention at first was to kill Justin Lasuba. But finding it hard to get hold of Justin he decided to kill the deceased. He wanted to kill Justin as a revenge because he conceives an idea that his son who died some time ago was poisoned by the family of Justin.Yoele has got an enmity with the family of deceased Raeli because he believes that his late mother was poisoned by the deceased’s father and that it is his duty to revenge.”

    How did this witness know the accused’s intention and his decision at the first time and the second time? This must be by mere surmise and guessing, which shows the weight of the evidence he has given. This witness’s statements being contradicted by the evidence of other witnesses and supported by no person makes it doubtful that Raeli was seen for the last time with the accused.

   The other incident adduced by the prosecution against the accused is the slaughtering of a sheep just before the discovery of the dead body. It is alleged that it is done when a human being is killed by the person slaughtering it. The accused denied this and contended that it was his brother who has done so. Nobody had seen the accused slaughtering the sheep, and his brother Tadayagave evidence that he had an old ram which he had killed. He could not point out the exact date and the Court has commented that he is not good in knowing dates. So the said sheep might have been slaughtered by accused’s brother and might have been slaughtered by the accused for other purposes mentioned which he does not want to disclose, such as having sexual intercourse with his brother’s wife. And even if it was really done it leads to suspicion only and does not go further to prove the accused’s guilt.

    The banging of the head against the wall, the questioning of the girl’s father about her disappearance and the alleged motive for the murder, prove nothing, but also lead to suspicion. If Raeli was really murdered and the bones found could be identified as hers, there are still circumstances which lead to the suspicion of persons other than the accused. It is proved by several witnesses thatRaeli was seen for the last time at Matiya’s house and that she did not return to the dance again. Matiya denied seeing her, which adds to the suspicion directed towards him. So she might have been murdered by Matiya or by any person at his house. She might have been killed by the second accused Lado, who gave false statements as regards his coming to the dance and the visiting of his mother’s house.

                                                              
    The evidence adduced leads to a probability but not to certainty and assurance. And as long as there is a probability from which the guilt of others besides the accused’s can be inferred, then the doubt becomes very clear and accused must be given the benefit of the doubt. Accused’s failure to explain part of the evidence adduced against him is not conclusive evidence that he has committed the offence. “Circumstances of strong suspicion without more conclusive evidence are not sufficient to justify conviction even though the party offers no explanation of them. In a case depending largely upon circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof.” (Sarkar on Evidence, p. 30.)

   For the above reasons therefore I suggest that accused be set at liberty at once.

   17th December 1959. M. A. Abu Rannat C.J.: —I agree that the evidence produced leaves doubts that the girl Raeli was killed by accused. I therefore refuse confirmation of the finding of guilty of murder and direct that accused Yoele Lowiya be set at liberty forthwith.

                                                                                         (Conviction not confirmed)