[2005] UGHC 136

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT FORT PORTAL $HCT - 01 - CR - SC - 0148/2002$ (ORIGINAL MFP-CO-696/01 KMG-219/01)

<table>

UGANDA ....................................

## **VERSUS**

- 1. ASHMWE WILSON alias RUBOHA - 2. MONDAY BRUNO - 3. BYABAGAMBI CHRISTOPHER .................................... Alias KASAMU

## BEFORE: THE HON. MR. JUSTICE LAMECK N. MUKASA **JUDGMENT**

The three accused persons are jointly charged with aggravated robbery contrary to Sections 285 and 286(2) of the Penal Code Act. The particulars of the offence are that Asiimwe Wilson alias Ruboha (A1), Monday Bruno (A2) and Byabagambi Christopher alias Kasamu (A3) on the 30^th day of August 2001 at Kvabyoma village in the Kamwenge District robbed Twine Swaib of shs 121,000/= and at or immediately before or immediately after the said robbery threatened to use deadly weapons to wit pangas and iron bar on the said Twine Swaib.

All the accused persons pleaded not guilty. They were represented by Mr. Peter Nvamutale and later by Mr. Richard Bwiruka. The State was represented by Ms Rose Tumuheise a Resident State Attorney Fort Portal. The prosecutions case rested on the testimonies of Swaib Twine the victim (PW1). Muhangi George (PW2). Aliganyira Kassim (PW3) and No. 25757 D/Cpl Kitaburaza Bens (PW4).

Under the provisions of Article $28(3)(a)$ of the Constitution of the Republic of Uganda any person charged with an offence is presumed to be innocent until proved guilty. In all criminal trials the burden of proof rests entirely upon the prosecution to prove the case against the accused beyond reasonable doubt. The accused bears no obligation to present a defence or to prove his innocence. An accused can only be convicted upon the strength of the prosecution evidence adduced during the trial. See Woolimgton v/s DPP (1935) AC 462. Ssekitoleko v/s Uganda (1967) EA 531. Ntura v/s Uganda (1977) HCB 103.

In a case of aggravated robbery the prosecution has to prove the following ingredients of the offence beyond reasonable doubt:-

- That there was theft of some property. $\dot{i}$ . - That there was use or threat to use violence during the theft. ii. - That there was use or threat to use a deadly weapon immediately before, during or iii. immediately after the theft, or causing death or grievous harm to any person during the execution of the theft. - That the accused persons or any of them participated in the theft. iv.

$\mathbf{1}$

Swaib Twine (PW1) testified that in the night of 30th August 2001 while sleeping in his house with his wife. Madina Turyaluliayo. his son Kassim Aliganyira (PW3) and his other children, they were attacked by thieves. That the attackers stole his money in the sum of shs 126.000/=. 2 bars of soap, a kilogram of sugar and his panga. In crossexamination the witness clarified that his money stolen was shs 96.000 = and shs 25.000/= was stolen from his son PW3. That the money and panga were not recovered. Kassim Aliganyira testified that in the course of the attack the attackers stolen his money in the sum of shs 25.000/= which one of the attackers recovered from the witness'^s wallet. PW3 further testified that a sum ofshs 96.000/= was stolen from his father.

Counsel for the Defence did not contest this ingredient oftheft and both assessors were in agreement. ¹ have no reason to doubt the witnesses' testimonies in this regard. ¹ accordingly find that the prosecution has proved this ingredient beyond reasonable doubt.

Regarding violence PW1 and PW3 testified that while in their house at around 2.00 a.m. they each heard a loud bang on the hind door and the door fell into the house. PW1 testified that when the attackers entered they made him lie down on the floor facing down. That his wife was also made to lie down. PW3 testified that he was ordered to lie down next to where his father was lying. PW1 testified that the attackers slapped them with pangas. and beat them with iron bars. That he was hit with an iron bar at the groin. PW3 testified that his father was kicked and his mother dragged along in search for money. That as the witness struggled with one of the attackers his thumb was cut by the panga which the attacker had. The above evidence shows that the attackers used violence to gain entrance into the house and continued to use violence as they extracted money from the victims. The defence did not contest this-ingredient. In agreement with the gentlemen assessors ^I find that the prosecution has proved this ingredient of violence beyond reasonable doubt.

The third ingredient is whether there was use of a deadly weapon or causing death or grievous harm of any person during the execution of the theft. Though PW3 sustained some injury there is no evidence of death or grievous harm caused to anybody during the execution of the theft. That leaves me with one issue whether there was use or threat use a deadly weapon. It is the testimony of PW1 and PW3 that the attackers were armed with pangas and an iron bar. A panga can be used to cut thus a deadly weapon within the meaning of Section 286(3) of the Penal Code Act. The use or threat to use a deadly weapon must be determined within the contest of the definition of the above Section. PW1 testified that they were slapped with a panga. There is no evidence to show that PW'l. PW3 or PW1 's wife or anybody in the house was threatened to be stabbed or cut or actually slabbed or cut with a panga. PW3's thumb was cut in the course of a straggle with one of the attackers by a panga which the attacker ws armed with. This was as the attacker pulled the panga in the course of a struggle to release himself. This attacker never used the panga to injure PW3. in fact when PW3 released hold ofthe panga it is his testimony that this attacker took off. An iron bar is not perse a deadly weapon within the meaning of Section 286(3) of the Penal Code Act unless used offensively. An iron bar would gain the status of a deadly weapon if ^w hen sued it causes death or grievous harm.

PW1 and PW3 testified that they were assaulted with an iron bar. PW1 testified that he was hit with an iron bar at the groin however in absence of any medical evidence to classify the injury sustained by him ^I am unable to find that the witness sustained grievous harm. In the circumstances ¹ find that the prosecution has failed to prove that a deadly weapon was used or threatened to be used in the course of the theft.

The last ingredient is participation of the accused persons. The defence counsel strongly contested this ingredient and it was the assessors opinion that the prosecution failed to prove this ingredient beyond reasonable doubt. None of the prosecution witnesses positively identified the accused persons in the course of the attack. The prosecution relied on circumstantial evidence to prove its case. ^I warned the assessors as ¹ do warn myself now. that in a case depending on circumstantial evidence. Court must find before deciding upon conviction that the inculpatory facts are incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of quit. See Simon Musoke v/s R (1958)EA 715. Secondly it is necessary before drawing the inference of the accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. See Tepper y/s R (2) (1952) AC 480. Uganda v/s Abrino Ajok (1974) HCB 176. The circumstances must be such as to produce moral certainty to the exclusion of every reasonable doubt. It must be treated with caution and narrowly examined because evidence of this type can easily be fabricated. See: Waibi v/s Uganda (1978) HCB 218. Tindigwire Mbone v/s Uganda SCCA No. 9 of 1987 (unreported)

When considering the evidence of eye-witnesses on identification Court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were or were not difficult so as to safeguard against mistaken identity. In so doing court would consider the evidence of any factors favouring correct identification together with those rendering it difficult. ^I cautioned the assessors as ^I nowdo to myself and invited them to consider the circumstances of identification, particularly to consider the length oftime ofthe commission of the offence, the visibility, the distance between the attackers and the witness, the familiarity of the witnesses to the accused persons and in the event the circumstances of identification are found difficult to consider any other corroborative evidence. See Bogere Moses &. Another v/s Uganda SCCA No. ¹ of 19971 Roria v/s Republic (1967) EA 584. George Kalyesumba v/s Uganda CT, Appeal No. 16 of 1977. Moses Kasana v/s Uganda (1992-93) HUB 47. Abdaiah Nabulele & Anor v/s Uganda (1979) HCB 77.

The two prosecution eye-witnesses to the commission of the offence Swaib Twine (PW1) and Aliganyira Kassim (PW3) testified that they were attacked in the night of 30th August 2001 at around 2.00 a.m when they had alread} gone to sleep and were awaken by a loud bang on the hind door which fell into the house and only woke up to see or hear an intruder already in the house. Each as they came out of their respective rooms into the corridor, were forced to lie down with their faces facing the floor. There was moonlight

outside but in the house it was dark with the only source of light being the torch which was being Hashed constantly by the attacker. PWl testified that the torch was flashed directly in his eyes and it blinded him. According to PWl the attack lasted about an hour while according to PW3 it lasted for about 30 minutes. Both witnesses testified that they were scared and frightened. It is the testimony of both eye-witnesses that in those circumstances they could not identify any ofthe attackers.

The witness, however, testified that they managed to notice two attackers, one who entered the house and tortured the witnesses and the one who remained in the doorway of the broken door leading from outside into the corridor. It is the testimony of PW3 that with the reflection from the torch which was being flashed by the attacker who was inside the house, he managed to see the attacker who was standing in the door, whom the witness gained courage attacked and strangled with for the panga which this attacker was armed with, from outside until this attacker broke free and run away. The two witnesses testified that in those circumstances they had peeping glances at the two attackers and noticed that the attacker who was inside the house torturing them was tall, dressed in feded Jean trousers and jangle boots. The two witnesses attributed this appearance, after the arrest of the accused persons, to Asiimwe Wilson alias Ruboha (Al). That the second attacker who had remained in the doorway armed with a panga was shout with big eyes and dressed in a pair ofshorts with packets down at the sides and down towards the knee. The witness attributed this appearance to Monday Bruno (A2) following the arrest of the accused persons. It is the above descriptions of the attackers which PWl and PW3 gave to PW2 on reporting the attack.

fhe circumstances of identification as seen above were very difficult and unfavourable for a correct identification. Thus the need to look for other corroborative evidence. It is the testimony of PW3 that some days after the attack on 9lh September 2001 as he was walking at the junction joining Kyabyoma village Road. Fort Portal Road. Kamwenge Secondary School Road and Kamwenge Sub County Road, the witness came across Byabagambi Christopher alias Kasaamu (A3). The witness knew Byabagambi (A3). A3 was in the company of a short man who was dressed in a grey a pair shorts with outside pockets which man the witness recalled as the short man the witness had seen and strangled with in the course of the attack and dressed in the same pair of shorts. The witness made an immediate report of what he had seen to his father PWl. then to Chairman LC. I Kyabyoma village Muhangi George (PW2) and to No. 25757 D/Cpl Kitaburaza Bens (PW4) who was then attached to Kamwenge Police Station. Following the report by PW3. a search team accompanied by PWl. PW2 and PW3 and commanded by PW4 was deployed to search Byabagambi's home.

Il is the testimony of PWl. PW2 and PW3 that following the attack an iron bar, tendered in evidence as exhibit Pl. and a blue worn out slipper for the left leg. tendered in evidence as exhibit P2. had been found abandoned by the attackers at the scene ofcrime and taken to the Police where both items had been received by PW4 as exhibits.

It is the testimony of all the prosecution ^w itnesses that when the search team went to A3's home they found that in the homestead there were three houses which they searched, one occupied by A3's parents, the second by A3 and a third occupied b\ A3\*s brother one Tumwesigye and Bruno Monday (A2). That after the search in this homestead, following the interrogation of A3 by PW4. the search team moved to the neighbouring homestead of one Kyakabaale where there were two houses one occupied by Kyakabaale and another small house occupied by Asiimwe Wilson alias Ruboha (Al). The search team on visiting Tibejuka's homestead (A3\*s father) they found A2 and A3 at home and or visiting Kyakabale's homestead they found Al at home.

The prosecution witnesses testified that on searching A3\*s house the search team recovered four iron bars which were collectively received in evidence as Exhibit P3. The ^w itnesses testified and Court observed that each of these four iron bars was of the same size and cut to the same length as exhibit Pl, the piece of iron bar abandoned at the scene of crime. A3 was found putting on a grey pair of shorts received in evidence as exhibit P6. The prosecution witnesses testified and Court observed that this pair of shorts fitted w'ell with the one described as seen by PW3 in the course of the attack and which A3's companion had been dressed in on 9lh September 2001 when PW3 had seen them a day before the search.

On searching the house identified to the witnesses as occupied by A2 and Tumwesigye the search team recovered from the ceiling a right foot slipper. It is the testimony of PW4 that when A2 and Tumwesigye were asked to produce the left foot corresponding slipper to make a pair, the two failed to produce it. The witnesses testified and Court observed that the right foot slipper recovered and received in evidence as exhibit P4 corresponded in colour, size, wear out and mode of repair with the left foot slipper recovered from the scene ofcrime (Exhibit P2)

The prosecution witnesses testified that on reaching Tibejuka's homestead they found there Al who was dressed in a fedded Jean pair of trousers. The witnesses testified and Court observed that this pair of trousers, which was received in evidence as exhibit P5. fitted well with the description of the pair of trousers which PW1 and PW3 had given immediately after the attack as the trouser which they had observed the tall attacker was dressed in the course of the attack. Further the prosecution witnesses testified that on searching the house occupied by Al they recover a paiyT of black jangle boots which answered the description by PW1 and PW3 imnfediately after the attack as the pair of shoes pul on by the tall attacker in the course of the attack. However court did not have an opportunitv to see this pair of shoes as the prosecution failed to exhibit the pair of shoes and no reason was given for the failure.

Such was the evidence which the prosecution relied on to implicated each of the Accused persons with the commission of the olfence.

The common facts in respect of the three accused persons are that they were all arrested on the same day 10lh September 2001 from neighbouring homesteads ofTibejuka. father

of A3, and Kyakabaale. Al was found in the homestead of Kyakabaale while A2 and A3 were both found in the homestead ofTibejuka. On 9lh September 2001 PW3 found A3 in the company of A2 who the witness recalled as the short man with big eyes he had seen in the course of the attack and was dressed in the pair ofshorts which the witness recalled as having seen the short attacker dressed in doing the attack. It was these finding by P\\ ³ which led to the search the following day 10lh September 2001 which search resulted into the arrest of the three accused persons and the recoveries made in the course of the search.

Criminal responsibility is personal to the individual. ¹ now proceed to consider each of the accused persons individually. Starting with Asiimwe Wilson alias Ruboha (Al), he in his defence, stated that he was arrested from Kyakabaale's home where he was renting a house. He denied being among the thieves who attacked the complainants. The accused slated that on arrest his shoes were taken by the arresting team and while in the police cells he was told io remove his trousers which were taken from him. It is duty of the prosecution to prove the guilt of the accused to the required standard, and a conviction will only be based on the strength of the prosecution evidence but not on the weakness in the defence or lack of defence. See Ntura v/s Uganda (1977) HCB 103. In the case of doubt the same would be resolved in favour of the accused. It is the testimony of PW1 that he did not know Al before the attack. Similarly Al was a stranger to PW3. PW1 and PW3 did not identify any of the two attackers whom they allegedly saw in the course of the attack. The prosecution evidence relied on to implicate the accused in the commission of the offence is that one of the attackers who entered the house was tall, was dressed in fedded Jean trousers and jangle boots, and that on arrest Al was dressed in a fedded Jean (Exhibit P5) and black jangle boots. None of the prosecution eye witnesses attempted to give an estimated height of the attacker whom they descubed as tall. Tallness is relative. My interpretation of the witnesses' testimonies is that one of the attackers was taller than the other but as to how tall no evidence was led to assist court. Further both witnesses admitted that there are many of such trousers as exhibit P5. ^I have had opportunity to look at the exhibit and ¹ agree with Counsel for the defence that there numerous such trousers on the market. There was nothing distinctive about the trouser. In fact the tedding is by way of make, not a result of use. The alleged jangle boots though admitted by the prosecution witness to have been taken as exhibit from the accused, the shoes were not exhibited in court and no explanation was offered. In agreement with both gentlemen assessors ^I find that there is doubt whether Al participated in the commission of the offence. ^I find that the prosecution has failed to prove beyond reasonable doubt that Al participated in the theft.

The theft which is the subject of this case took place on 30lh August 2001. A2 slated that he had come to the village on 9lh September 2001. nine days after the commission of the offence. The impression ^I gel from the accused's statement is that by the dale of commission of the offence he was in Kirala village, away from Kyabyoma village. The accused thereby raised the defence of alibi. ^W hen an accused person sets up an alibi in answer to the charge he doesnot assume the duty of proving it. It remains the duty of the prosecution to prove its case beyond reasonable doubt by placing the accused at the scene

of crime at the material time. See Sekitoleko v/s Uganda (Supra). Mushiokoma Watete alias Peter VVakhokha & others v/s Uganda SCCA No. 10 of 2000. Where the prosecution adduces evidence showing that the accused was at the scene ofcrime and the defence not only denies it but also adduces evidence showing that the accused person was elsewhere at the material time, it is incumbent on the court to evaluate both versions judicially and give reasons why one and not the other version is accepted. It is a misdirection to accept one version and then hold that because of that acceptance perse the other version is unsustainable. See Bogere Moses & Another v/s Uganda (Supra)

PW3 testified that he knew Byabagambi Christopher alias Kasaamu A3 as a resident of the same village with the witness. That when he met A3, he was with a stranger who happens to be A2. In cross examination PW1 testified that A2 had relatives in their village and that on the date of his arrest he might have come to visit his relatives because that is where he was found at the home of Twijuka. the father of A3. Also in cross examination PW2. the area Chairman then, stated that A2 was a visitor coming from a different sub county. The above prosecution evidence corroborates A2's statement that he was not a resident ofthe area where the crime was committed but a visitor who had come to see his relatives. There was no prosecution evidence to contradict the accused's statement that he had arrived in the village on 9th September 2001, the eve of the date of his arrest. The only prosecution evidence to connect the accused with the commission of the offence is that of PW1 and PW3 that one of the attackers was short with big eyes, dressed in a grey pair of shorts with outside pockets, that on 9'^h September 2001 PW3 met A3 in the company of short stranger putting on a similar grey pair of shorts and that on going to search A3's home A2 was found at home. That a right foot slipper exhibit P4 was recovered from the house occupied by A2. It is the prosecution evidence that on the date of arrest it was A3 who was found dressed in the grey pair of shorts exhibit P.6. PW1 and PW3 in their testimonies staled that they did not see A3 in the course of commission of the offence. They attributed the description of the tall attacker to Al and that of the short attacker to A2. Therefore if their evidence is to be believed the attacker who was putting on the pair of shorts exhibit P6 at the time of the attacker was not A3. Such evidence may lead to two findings, one that on his arrest A3 was pulling on a grey pair of shorts similar to the one seen by the two prosecution eye-witnesses during the allack but not the very one seen by the witness. Which pair of shorts A2 could have been putting on. on 9lh September 2001 when PW3 found him in the company of A3 since there was no other similar pair of shorts recovered from A3's home during the search. The second finding would be that the pair of short, exhibit 6 was the same pair of shorts seen by the eye-witnesses during the attack but that the pair was being used interchangeably. This second finding would leave a question as to who was exactly putting on that pair of shorts in the course of the attack, was it the A2. A3 or someoneelse.

rhe other piece of evidence adduced to connect A2 with the commission of the offence are the slippers exhibits P2 and P4. It was the testimony of all the prosecution witnessed and ¹ have carefully examined the two slippers and ^I am satisfied that the two slippers must belong to one pair. The slipper exhibit P4 recovered from Twibijuka's homestead

and the slipper exhibit P2 found abandoned al the scene ofcrime immediately alter the attack formed one pair. Il is lhe prosecution evidence that lhe slipper exhibit P4 was recovered from the house identified to the prosecution witnesses as the house occupies by A2 and one Tumwesigye. A2 in his statement accepts the fact of finding but denies that the slipper was his. In view of the finding that A2 was a visitor at lhe home, that he occupied lhe house where the slipper was found with one Tumwesigye and that the said Tumwesigye did not testify as to the ownership of lhe slipper. ¹ find that there is doubt as to who actually owned or used the slipper. In the circumstances ^I am unable to find that the inculpatory facts are inconsistent with A2's innocence devoin of any other reasonable hypothesis other than his guilt. ^I find that the prosecution has failed to prove beyond reasonable doubt that the Accused Bruno Monday participated in the theft.

In his defence Byabahambi Christopher alias Kasaamu staled that on 29lh August 2001 he went to attend funeral riles where he spent the night. That the following day 30lh August 2001 in the morning he learnt that their neighbour PW1 had been robbed. That on the day of his arrest four pieces of iron bars were taken from his house by the arrest team and a slipper was taken from the house of his young brother. The accused further staled that while al the police a pair of shorts which he was pulling on was removed from him. The accused raised the defence of alibi and the same principle of law apply as already considered while considering A2's defence of alibi.

^I have carefully examined lhe four-iron bars exhibit P3 and the iron bar exhibit Pl. The iron bar exhibit Pl is of the same size, length and design with each one of the four iron bars received as exhibit P3. save that two ofthe iron bars in exhibit P3 were slightly bent at one end. It is very possible that the iron bar exhibit Pl was removed from the same stock of exhibit P3. However that is not conclusive. There must be evidence to connect A3 with lhe use of lhe iron bar in the course of commission of lhe offence. That is to say there must be evidence to place that accused at the scene of crime al lhe material time io lhe required standard. PW1 and PVV3 testified that they knew A3 well before lhe attacker as a village mate and did not attribute any of lhe two persons they saw to A3. That is evidence that PW1 and PW3 did noi see A3 among the attackers, they were positive on that. The only evidence to incriminate A3 with lhe commission of lhe office is first that on 9lh September 2001 PW3 found A3 in the company of A2 dressed in a grey pair of shorts. That A2 appeared to PW3 to be the short man lhe witness had seen among the attackers during the attack and lhe pair of shorts appeared identical to lhe pair of shorts the witness had seen that short man pulling on during the attack. Secondly that when on l0lh September 2001 the arrest team went to A3's home. A3 was found dressed in the very pair of shorts, that iron bars exhibit P3 were found in A2\*s house and a slipper exhibit P4 which formed a pair with the slipper exhibit P2 was found in A3\*s brother's house. In view of the positive testimony of lhe two prosecution eye-witnesses that they did not see A3, whom they knew very well, among the attackers the above circumstantial evidence is short of squarely pulling A3 at lhe scene of crime al lhe time when the offence was committed. ^I find that lhe prosecution has failed to prove beyond reasonable doubt that Byagabambi Christopher alias Kasaamu participated in the commission of the offence.

In the final result ^I agree with the gentlemen assessors' opinion and find that each of the three accused persons is not guilty and ^I accordingly acquit them. They should each be set free unless lawfully held on other charges.

N. MUKASA M(pGE. **k/w**