[2016] UGHCCRD 475

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA SITTING AT ARUA**

**CRIMINAL CASE No. 0020 OF 2014**

**UGANDA …………………………………………………… PROSECUTOR**

**VERSUS**

**A1 ATABUA GODFREY }**

**A2 AZIZA GASPER } …………………………… ACCUSED**

**A3 ASIANDU PATRICK }**

**Before Hon. Justice Stephen Mubiru**

**JUDGMENT**

Both accused in this case are jointly indicted with two counts; in count one, they are indicted for the offence of Murder c/s 188 and 189 of the *Penal Code Act*. It is alleged that the two of them on the 20th day of December 2012 at Oraba Trading Centre in Koboko District, murdered one Rudisha Robert.

In count two, they are indicted for the offence of Aggravated Robbery c/s 285 and 286 (2) of the *Penal Code Act*. It is alleged that the two of them on the 20th day of December 2012 at Oraba Trading Centre in Koboko District, robbed one Ombaga Muzamil of Ushs. 16,850,000/=, SSP 12,500 and at that time, immediately before or immediately after the said robbery, used a deadly weapon, to wit, a gun on the said Ombaga Muzamil.

The events leading to the prosecution of the accused as narrated by the prosecution witnesses are briefly that on 20th December 2012 at around 6.45 pm, the deceased, PW1 (Ombaga Muzamil), PW2 (Mawa Jamal) and PW3 (Atiku Rasul) were walking home from work at Oraba Town where the deceased and PW1 and PW2 operated business individually as money changers. Suddenly a man in front of them pointed a gun at them and fired a series of bullets. One of the bullets hit the deceased, who died instantly, the other hit the PW1 who escaped with serious injuries on the upper part of his body and the other missed PW2. They all dropped polythene bags on the ground which contained cash in various currencies and denominations. The assailant picked the bags, jumped onto a getaway motorcycle and the two sped away from the scene.

News of the armed robbery spread fast and a short while after, at around 7.30 pm at a place called Keri Market which lies approximately sven kilometers from the scene of the crime, both accused who were aboard a motorcycle were arrested by residents as they approached an isolated site for murram excavation, where A1, a stranger in the area, had moments earlier been sighted speaking on phone under suspicious circumstances. The three of them were arrested by the mob and were rescued by policemen on a pick-up truck who were on their way from Koboko Police Station to Oraba Town in response to the reported armed robbery. They were physically searched and various items collected from their possession. They were charged with being vagabonds as investigations continued. On 4th February 2013, identification parades were conducted at Arua Police Station where A2 and A3 were identified as the robbers. A1 was not identified. They were all indicted with murder.

At the close of the prosecution case, A1 was found not to have a case to answer and was acquitted. In their defences by way of unsworn statements, both A2 and A3 denied the indictment. They both claimed to be dealers in Mairungi who on that day had gone separately to Busia to sell mairungi. By coincidence, A2 stopped A3 and requested for a lift back to Koboko at a n agreed fare of shs. 10,000/= only to be arrested at Keri Market.

The prosecution has the burden of proving the case against both accused persons beyond reasonable doubt. The burden does not shift and the accused can only be convicted on the strength of the prosecution case and not because of any weaknesses in their defence, (See *Ssekitoleko v. Uganda [1967] EA 531*). Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, (see *Miller v Minister of Pensions [1947] 2 ALL ER 372*).

For the accused to be convicted of murder, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

1. Death of a human being occurred. 2. The death was caused by some unlawful act. 3. That the unlawful act was actuated by malice aforethought; and lastly 4. That it was the accused who caused the unlawful death.

Death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. The prosecution presented a post mortem report prepared by PW9 (Santos Kenyi) a Senior Clinical Officer at Koboko Health Center IV tendered into evidence. It was prepared by Dr Adruwale Alfred in relation to the body of a one Rudisha Robert identified to him by SP Muganzi Edison. It was received as Exhibit P. E.3 dated 21st December 2012. It is corroborated by the evidence of PW3 (Atiku Rasul) who saw the deceased being shot down by a gunman and saw him dead at the scene. It is further supported by the evidence of PW5 (D/IP Adrati Henry) who saw the body of the deceased in Oraba Town on the pick-up of the RDC. PW6 (CPL Anguni Charles) gave evidence to similar effect. Lastly, the two accused in their defences did not address this ingredient. Counsel for the accused in his final submissions conceded to this ingredient. On basis of that evidence, I am satisfied that it has been proved beyond reasonable doubt that Rudisha Robert is dead.

It is the law that any homicide is presumed to have been caused unlawfully unless it was accidental or it was authorized by law. PW9 (Santos Kenyi) a Senior Clinical Officer at Koboko Health Center IV tendered into evidence a post mortem report prepared by Dr Adruwale Alfred in relation to the body of a one Rudisha Robert. It was received in evidence and marked as Exhibit P. E.3 dated 21st December 2012. Upon the autopsy he conducted, the doctor established the cause of death as excessive bleeding as a result of gunshot wounds. Exhibit P. E.3 dated 21st December 2012 contains the details of the findings. He saw a penetrating wound on the mid axilar on the right side (below the armpit) and an exit wound in the chest that had completely destroyed the mid sternum. PW1 (Ombaga Muzamil), PW2 (Mawa Jamal) and PW3 (Atiku Rasul) gave eye-witness accounts explaining the circumstances in which the deceased was killed. He was on his way from work returning home when he met two robbers who were after his money. From the evidence, there does not appear to be any lawful excuse for such assault. There is nothing to suggest that it was accidental. The two accused in their defences did not address this ingredient. Counsel for the accused in his final submissions conceded to this ingredient. I am satisfied that it has been proved beyond reasonable that Rudisha Robert died as a result of an unlawful act.

Malice aforethought is defined by section 191 of the *Penal Code Act* as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person. The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. Malice aforethought is a mental element that is difficult to prove by direct evidence. Courts usually consider the weapon used (in this case a gun) and the manner it was applied (single shot fired deliberately) and the part of the body of the victim that was targeted (the chest area). PW9 (Santos Kenyi) a Senior Clinical Officer at Koboko Health Center IV tendered into evidence a post mortem report prepared by Dr Adruwale Alfred Exhibit P. E.3 dated 21st December 2012 where the location of the injuries sustained were explained. PW1 (Ombaga Muzamil), PW2 (Mawa Jamal) and PW3 (Atiku Rasul) gave an eye-witness account explaining the circumstances in which the shots were fired. The two accused in their defences did not address this ingredient. Counsel for the accused in his final submissions conceded to this ingredient. I am satisfied that it has been proved beyond reasonable that Rudisha Robert died as a result of an unlawful act actuated by malice aforethought.

The last ingredient requires proof that each of the accused participated in the commission of the offence. This element is shared in common as an element for the second count. In order to avoid repetition, I have decided to defer this until such time as I shall be considering it in respect of the second count. For the accused to be convicted of Aggravated Robbery in the second count, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

1. Theft of property belonging to another. 2. Use or use threat of use of violence against the victim. 3. Possession of a deadly weapon during the commission of the robbery. 4. The accused participated in commission of the theft.

The first ingredient requires proof of theft of property belonging to or in possession of another. For this ingredient, there must be proof of what amounts in law to an asportation (that is carrying away) of the property of another without his or her consent. The property stolen in this case is cash that belonged to PW1 (Ombaga Muzamil) amounting to Ushs. 16,850,000/=, SSP 12,500. PW1 (Ombaga Muzamil), PW2 (Mawa Jamal) and PW3 (Atiku Rasul) gave an eye-witness account explaining how they saw their assailants picking polythene bags containing the money from the ground where they had dropped it following the gunshots. Failure to recover the items allegedly stolen does not, in itself, negate the fact of theft. However, such goods must have been duly proved to have been stolen. There was an attempt to adduce evidence of cash recovered from A3 presumably as part of the cash that was stolen. It was exhibited as Exhibit P. E.8. However on closer scrutiny, I discovered that most of the bank notes in the various denominations had been printed in 2013 whereas the offence was committed in December 2012. In the absence of a satisfactory explanation for this anomaly, I have decided to disregard this part of the evidence as proof of this ingredient. I consider the testimony of PW1 (Ombaga Muzamil), PW2 (Mawa Jamal) and PW3 (Atiku Rasul) as sufficient to prove the ingredient. The two accused in their defences did not address this ingredient. Counsel for the accused in his final submissions conceded to this ingredient. I am satisfied that it has been proved beyond reasonable that the amount of cash stated in the indictment was stolen from the victim of the offence.

For the ingredient of use or threat of use of violence against the victim, there must be proof of the use or threat of use of some force to overcome the actual or perceived resistance of the victim. PW1 (Ombaga Muzamil), PW2 (Onencan Mawa Jamal) and PW3 (Atiku Rasul) gave an eye-witness account explaining that a gun was fired during the incident. The two accused in their defences did not address this ingredient. Counsel for the accused in his final submissions conceded to this ingredient. I am satisfied that it has been proved beyond reasonable that during the incident the assailants used violence by inflicting grievous harm on PW1 and killing the deceased.

Regarding the requirement of proof that the assailants had a deadly weapon in their possession during the commission of the robbery, a deadly weapon is one which is made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death. A gun or an imitation of a gun is a deadly weapon in law. PW1 (Ombaga Muzamil), PW2 (Onencan Mawa Jamal) and PW3 (Atiku Rasul) gave an eye-witness account explaining that a gun was fired during the incident. The two accused in their defences did not address this ingredient. Counsel for the accused in his final submissions conceded to this ingredient. I am satisfied that it has been proved beyond reasonable that during the incident the assailants were in possession of a gun.

Lastly, the prosecution was required to prove that each of the accused participated in the commission of the two offences charged in counts one and two. The evidence implicating each of the accused must be considered separately. Each of the accused must be placed at the scene of the crime as an active participant in the commission of the each of the two offences. PW1 (Ombaga Muzamil), PW2 (Onencan Mawa Jamal) and PW3 (Atiku Rasul) gave an eye-witness account explaining the role each of the two accused played. A2 carried the gun, fired the shots and gathered the polythene bags containing cash. A3 rode the getaway motorcycle.

Under the doctrine of common intention, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. In “twin crime” situations such as where members of a group agree on their main goal to commit a primary criminal act (e.g. rob property) but did not share the intention of one of the members to also commit a collateral criminal act (e.g. killing) which was incidental to the main goal, if the collateral criminal act were such as the participants in the primary criminal act knew to be likely to be committed in the attempt to commit the primary criminal act, or in the commission of the first primary criminal act, or in consequence of the commission of the primary criminal act, each of such persons is liable for that collateral criminal act in the same manner as if the act were done by him alone. Where an offence is alleged to have been committed by two or more people, there is no need to prove that each of them participated in each of the ingredients. It is enough if they are proved to have shared a common intention.

In this case, I have considered the role each is alleged to have played in the commission of the two offences. There appears to have been a common plan by each of the assailants to commit the offence of robbery. There is no evidence to suggest that the one who rode away the getaway motorcycle was unaware that the other was armed with a gun. In any event, after the shots were fired, there is no evidence of an attempt to disassociate himself from the murder. I therefore find that since robbers who plan to rob using a deadly weapon, must foresee the possibility of the weapon being used in the course of the robbery, with the obvious lethal consequences. The two of them would therefore be equally liable once it is established that they were properly identified.

I warned the assessors and hereby remind myself that evidence of identification requires close scrutiny. In this regard, none of the identifying witnesses knew any of the accused before the incident. The events happened suddenly, so fast and in very frightening circumstances. Such conditions were not favourable to correct identification. No wonder soon after the events the witnesses were of the opinion that they would not be able to identify their assailants if they so them. Reliance only on the identification evidence at the scene of crime without corroboration would in my view be unsafe.

However, I find corroboration of that identification evidence in a number of factors. First, when they were first arrested and cash recovered from A3’s inner pair of trousers, the explanation they gave to PW 6 (CPL Anguni Charles) was that they had been looking for land to buy but had failed. In their respective unsworn statements before court, they instead said they were returning from the sale of Mairungi. In his defence, A2 claimed to have had cash with which to he was to pay A3’s agreed fare from Busia to Koboko. When he was searched soon after arrest, only three identity cards, Exhibits P. E.5a – 5c, were recovered from A2. No cash was found on him. One would have expected a consistent story and in its absence, these inconsistencies cast a doubt on the veracity of their alibi.

Secondly, identification at the scene is corroborated by their ability to correctly identify the two accused during the subsequent identification parades. I have perused the two Identification Parade reports; P. E.1 in respect of A2 and P. E.2 in respect of A3. On the face of it, the parades were conducted in accordance with the laid down procedures as set out in *R. v Mwango s/o Manaa (1936) 3 E. A. C. A 29* and affirmed in *Ssentale v Uganda [1988] E. A. 365*. Each of the accused signed his respective report indicating satisfaction with the way it had been conducted. The accused wore the same attire they had on when they were arrested and the witnesses were able to identify each of them by that attire. That the identifying witnesses w had indicated in their police statements recorded a few days after the incident (Exhibit D. E1 – D. E 3) that they would not be able to identify the assailants if they saw then again, was not an expression of fact but rather opinion by persons still traumatized by that experience. When they were presented with both accused among a group of men with similar features in separate parades, they were able to identify and recognize them as a matter of fact. The witnesses were not in Keri where the two accused had been arrested. The only conclusion one can draw is that it is not a mere coincidence that the two men the witnesses identified as the assailants were the ones arrested in Keri and answered the description in terms of attire, the aspect the witnesses remembered most vividly, as that the witnesses had seen at the scene of crime. In his additional statement, Exhibit D. E.3, PW2 (Onencan Mawa Jamal) was able to identify A2 by the attire and height.

In any event, the purpose of an identification parade as stated in Stephen *Mugume v Uganda S. C. Crim. Appeal No.20 of 1995* is; “as a practice, held in cases where the suspect is a stranger to the witness or possibly where the witness does not know the name of the suspect. In such a case the identification parade is held ….. to enable the identifying witness confirm that the person he has identified at the parade is the same person he had seen commit an offence.” Where there are monor irregularities which do not affect the fairness of an identification parade, they will be ignored (see *Kurong Stanley v Uganda C. A. Crim. Appeal No. 314 of 2003*). The minor irregularities in the case before me related to dissimilarities in age and attire. They did not fundamentally affect the regularity of the exercise. The results of the parade corroborate the identification evidence of the witnesses.

Finally, there are curious coincidences in this case that are more consistent with a plan between the two accused rather than mere happenstance as they stated in their respective defences. A2 was unable to find a boda-boda rider or taxi in Busia to Koboko during the early eveninh hours (considering that the arrest at Keri was at around 7.30. pm) and had to stop A3 for a ride. A3 was not a boda-boda rider but was willing to offer the service at a fee. The two are seen approaching an isolated, off-road murram pit rather than travel along the highway. This circumstantial evidence is inconsistent with their innocence and goes further to corroborate the evidence of identification. In agreement with the opinion of the assessor, I find that this ingredient has been proved beyond reasonable doubt in respect of both counts. In the final result, I find that the prosecution has proved all the essential ingredients of Count I, beyond reasonable doubt and I hereby convict A2 Aziza Gasper and A3 Asiandu Patrick for the offence of Murder c/s 188 and 189 of the *Penal Code Act*.

I find that the prosecution has proved all the essential ingredients of Count 2, beyond reasonable doubt and I hereby convict A2 Aziza Gasper and A3 Asiandu Patrick for the offence of Aggravated Robbery c/s 285 and 286 (2) of the *Penal Code Act.*

Dated at Arua this 26th day of August, 2016. …………………………………..

Stephen Mubiru

Judge.

31st August 2016

3.10 pm

Attendance

Ms. Andicia Meka, Court Clerk.

Ms. Harriet Adubango, Senior Resident State Attorney, for the prosecution.

Counsel for the convicts is absent.

Both convicts are present in Court.

**SENTENCE AND REASONS FOR SENTENCE**

The convicts were found guilty of the offences of murder c/s 188 and 189 of the *Penal Code Act* and Aggravated Robbery c/s 285 and 286 (2) of the *Penal Code Act* after a full trial. In her submissions on sentencing, the learned Senior Resident State attorney prayed for a deterrent sentence on the following grounds; both offences carry a maximum penalty of death. Life is sacred and ought to be respected but in this case was taken away motivated by greed for cash. The convict was part of a carefully planned and executed murder. Both therefore deserve long custodial sentences and an order of compensation.

Counsel for the convicts prayed for a lenient custodial sentence on the following grounds; both convicts are first offenders. A3 is a young man at the age of 34 years while A2 is of advanced age at 68 years. Both have been on remand since December 2012. In his *allocutus*, A2 prayed for a lenient sentence because he has children in secondary school yet their mother is weak and sick. He only has a few years to live and would prefer to die from his home. In his *allocutus*, A3 prayed for a lenient sentence because he has five children. He grew up an orphan and was raised by his grandmother. He looked forward to serving his sentence and returning home to look after his children.

The offence of murder is punishable by the maximum penalty of death as provided for under section 189 of the *Penal Code Act*. However, this represents the maximum sentence which is usually reserved for the most egregious cases of Murder. I do not consider this to be a case falling in the category. I have considered the submissions made in mitigation of sentence and in the *allocutus* of both convicts. Both convicts have been on remand since 19th February 2013. I have for those reasons discounted the death sentence.

Where the death penalty is not imposed, the starting point in the determination of a custodial sentence for offences of murder has been prescribed by Item 1 of Part I (under Sentencing ranges - Sentencing range in capital offences) of the Third Schedule of *The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013* as 35 years’ imprisonment. I have taken into account the current sentencing practices in relation to cases of this nature, I have considered the case of *Bukenya v Uganda C. A Crim. Appeal No. 51 of 2007*, where in its judgment of 22nd December 2014, the Court of Appeal upheld a sentence of life imprisonment for a 36 year old man convicted of murder. He had used a knife and a spear to stab the deceased, who was his brother, to death after an earlier fight.

Where there is a deliberate, pre-meditated killing of a victim, courts are inclined to impose life imprisonment especially where the offence involved use of deadly weapons. I have considered the aggravating factors in this case being; the offence was the outcome of meticulous pre-meditation or planning. The convicts shot the deceased dead in the course of the commission of another grave offence of robbery. The two offences were motivated by greed and a callous disregard for life in pursuit of material property.

In light of those considerations, the convicts deserve to spend the rest of their natural lives in prison. I therefore hereby sentence the convicts, A1 Aziza Gasper and A3 Asiandu Patrick, to life imprisonment in respect of count 1.

Regarding the second count of aggravated robbery, I have considered the current sentencing practice by bearing in mind the decision in *Uganda v Ongodia, H. C. Crim. Sessions Case No. 21 of 2012* where the High Court sentenced a UPDF soldier convicted of aggravated robbery to 15 years’ imprisonment. He was a first offender who admitted the offence on arrest, pleaded guilty on arraignment and had spent a period of 5 years on remand. In *Kusemererwa and Another v Uganda C. A. Crim. Appeal No. 83 of 2010*, the Court of Appeal substituted a sentence of 20 years’ imprisonment that had been imposed upon each of the appellants with one of 13 years’ imprisonment, on grounds that it was manifestly excessive. In that case, there was no loss of life though a gun was fired. The appellants had spent five years on remand prior to their conviction. Both appellants were relatively young people who were first offenders and the Court was of the opinion that in imposing sentences it should bear in the mind the need for rehabilitation of young people and their possible return to society as useful citizens.

Bearing in mind the circumstances of this case, both the aggravating and mitigating factors mentioned earlier, I consider a deterrent sentence befitting both the nature of the crime and the antecedents of the two convicts. For that reason, I further sentence the convicts, A1 Aziza Gasper and A3 Asiandu Patrick, each to eighteen (18) years’ imprisonment in respect of count 2. The sentences in respect of counts 1 and 2 are to run concurrently.

Section 286 (4) of the *Penal Code Act*, enjoins the court to make an order of compensation provided that before making such an order, there must be evidence before Court as to the injury or loss suffered by the person to whom the compensation is to be paid. In this case, there was evidence that PW2 (Mawa Jamal) was shot and sustained a gunshot wound in the process of commission of the two offences for which the two have been convicted. He was admitted in Maracha hospital for fourteen days. In light of the injury, each of the convicts is to compensate Mawa Jamal in the sum of shs. 500,000/=.

There was evidence that PW1 (Ombaga Muzamil) lost a sum of Ushs. 16,850,000/= and SSP 12,500 to both convicts, which money has never been recovered. Both convicts are to pay in equal shares, a sum of 16,850,000/= and SSP 12,500 to Ombaga Muzamil.

The convicts are advised that they have a right of appeal against both conviction and sentence within a period of fourteen days.

Dated at Arua this 31st day of August, 2016.

Stephen Mubiru.

Judge.