Rex v Bampabura (Cr.A. 153/1936.) [1936] EACA 117 (1 January 1936)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); DALTON, C. J. and HEARNE, J. (both of Tanganyika).

REX, Respondent (Original Prosecutor)

BANTEBURA S/O BAMPABURA, Appellant (Original $Accused$ ).

Cr. A. 153/1936.

- Information of Murder-Conviction of Act intended to cause grievous harm. - Held (10-11-36).-That, where a person is convicted of an act intended. to cause grievous bodily harm on an information for murder, the proceedings are a nullity, and the conviction should be quashed and the accused discharged leaving the Crown free to take such $\mathit{Rex}$ v. Josephu fresh steps as may be considered advisable. Mupere (3 Tanganyika L. R. 72) followed.

Appellant, absent, unrepresented.

Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—If the attention of the learned Judge had been drawn to the case of $*Rex$ v. Joseph Mupere decided by this Court and reported as Cr. App. 154/32 (3 Tanganyika L. R. 72), he would not have convicted the appellant on an information for murder of having committed an act intended to cause grevious harm. The proceedings on the authority of the case referred to are a nullity and are quashed and the appellant is ordered to be discharged. The effect of this is to leave the Crown free to take such fresh steps as may be considered advisable.

Note.—The judgment in Rex v. Joseph Mupcre, Cr. App. No. 154/32, before a Court consisting of Sir J. W. Barth, C. J. (Kenya); Sir J. Sheridan, C. J. (Tanganyika); and Johnson, Ag. C. J. (Zanzibar) given on 19-9-32 is appended.

\*JUDGMENT.—The appellant was tried by the High Court of Uganda, on an information charging him with the murder of one Lugira s/o Kagolo. The assessors were of opinion that the appellant did not kill Lugira but the learned trial Judge found that he assaulted Lugira and caused him grievous harm. The learned trial judge was, however, unable to find that Lugira died as a result of such grievous harm and found the appellant guilty of an offence under section 194 of the Uganda Penal Code and sentenced him to seven years hard labour.

The memorandum of appeal raises two main grounds, the first is that the principal evidence against the appellant is that of Veneka who, it is alleged was an accomplice, and the second is that there is no power on a charge of murder to find the accused guilty of causing grievous harm because these two offences fall in entirely different categories.

The evidence of Veneka and that of her mother is open to suspicion. Veneka admits having beaten the deceased and her mother's version of the facts does not impress one with its veracity. We are of opinion that the second ground of appeal is sound. Section 178 of the Criminal Procedure Code does not, in our opinion, apply having regard to the facts of this case. The charge was murder and the information is silent as to any other offence and equally silent as to any particulars, which might be necessary for giving reasonable information as to the nature of the charge. We are of opinion that on such an information it is not competent for the trial Court to find the accused guilty of an offence under section 194 of the Uganda Penal Code of causing grievous harm.

It has been held that on an indictment for murder the accused may be convicted of manslaughter $\text{Rex } v$ . Mackalley (9 Co. Rep. 67b), but there is no authority for such a conviction as the one before us on an indictment for murder. The killing is the substance of the charge.

In our judgment the appeal succeeds and the conviction and sentence are quashed and the appellant is ordered to be discharged.