[2005] UGHC 137

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT - ⁰¹ - CR - SC - ⁰⁰⁹³ - ²⁰⁰²

#### UGANDA PROSECUTOR

### VERSUS

## BAGUMA MICHEAL ........................................... ACCUSED BEFORE: THE HON. JUSTICE LAMECK N. MUKASA JUDGMENT

The Accused. Baguma Micheal. is indicted on four counts of Robbery Contrary to sections 285 and 286(2) ofthe Penal Code Act. The particulars ofthe offence are that the Accused with Basaliza Ronald (now deceased) and others still at large on 15lh August 2001 at Kahihi Trading Centre. Kiregesa Village Kihura in Kyenjojo District robbed from each of the victims .in the respective counts and at or immediately before or immediately after the said robberies used a deadly weapon to wit a knife on each of the respective victims.

The accused pleaded not guilty on all the four counts. He was represented by Mr. Kangye Mugabi. The prosecution's case was conducted by M/S Rose Tumuheise. a Resident State Attorney. Fort Portal. The prosecution's case rested on the evidence of Yowanina Kabajungu. the victim in count 4, Kabukuru Bendicto (PW2), Katungi Joseph (PW3). No. 23058 D/Cpl Bwambale Jasmine (PW4) Nyamahunge Mary (PW5). the victim in count 3 and Zakura (PW6).

The Cardinal Principle of our Penal System is the presumption of the innocence of the Accused as entrenched and guaranteed in Article 28(3)ta) of the Constitution of the Republic of Uganda which provides that every person who is charged with a criminal offence shall be presumed innocent until proved guilty or until that person pleads guilty. In all criminal trials'the burden of proof rests entirely upon the prosecution to prove the offence against the accused beyond reasonable doubt and, except in a few exceptional and / or statutory cases, this burden never shift to the Accused. See Woolimgton v/s DPP (1935) AC 462.

In an offence of Aggravated Robbery Contrary to sections 285 and 286(2) of the Penal Code Act, it can only be proved by the prosecution adducing evidence to prove beyond reasonable doubt each and everyone of the following essential ingredients:-

- (») Thal there was theft ofsome property. - (ii) That there was use or threat to use violence during the theft. - (iii) That there was use of or threat to use a deadly weapon immediately before, during or immediately after the theft or causing death or grievous harm to any person during the execution of the theft, and - (iv) That the Accused participated in the robbery.

Theft is defined under Section 254(1) ofthe Penal Code Act as follows:-

" */I person who fraudulently and vithoul any claim of right lakes anything*

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capable of being stolen or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of heing stolen is said to steal that thing".

And under Sub Section (2) of the Section theft is deemed committed if a person who take.

" *anything capable of being stolen*" *does so*

" (a) with an intention of permanently depriving the owner of the thing of it" and $\ddot{}$ (e) in the case of money with intent to use it at the will of the person who takes or convents it, although he may intend afterwards to repay the amount to the owner".

In count 1 the particulars of the offence are that the Accused with others on the $15^th$ day of August 2001 at Kahihi Trading Centre, Kiregesa Village, Kihura in Kyenjojo District robbed Muhumuza Paulo of cash Ug. Shs 45,000/= and at or immediately before or immediately after the said robbery used or deadly weapon to wit a knife on the said Muhumuza Paulo. In count 2 it is alleged that the Accused robbed Kaija Sankitto of cash shs 50,000/= and shop commodities valued at Ugshs 60,000/=. In count 3 that he robbed Mary Nyamahunge (PW5) of cash shs $105,000/$ = and in count 4 that he robbed Kabajungu Yowana (PWI) of Ugshs $55,000/$ = and shop commodities worth Ugshs 70,000/= Both Muhumuza Paulo and Kaija Sakitto, the victims in count 1 and 2 respectively, were not called as witnesses and the prosecution did not adduce any evidence of theft of any of the properties which were the subject matter of count 1 and 2. In the circumstances I find that the prosecution has failed to prove the ingredient of theft in respect of count 1 and 2. The effect of a plea of not guilty is that all the essential elements of the offence charged are put in issue so where any of the ingredients has not been proved by the prosecution to the required standard the Accused would in such circumstances be entitled to an acquittal. The Accused is accordingly acquitted on counts 1 and 2 of the Indictment.

PW5 Mary Nyamahunge, the victim in count 3, testified that on 15^th August 2001 she was attacked by people whom she did not identify. That in the course of the attack the assailants took her money in the sum of shs 100.000/=. Yowanina Kabajungu, the victim in count 4 testified that in the night of $14^{th}$ / $15^{th}$ August 2001 she was in her shop and residence sleeping with her husband and children when they were attacked by five assailants. That the assailants dragged her husband to the shop-room and he gave them shs 25,000/= That she also surrended shs 25,000/= which she got from the money drawer. to the assailants. The assailants ordered her into the shop room where she was made to serve them with beer which they drank. That the assailants ordered her to pack for them in a big poththene bag beers, sodas, salt and battery cells which items they carried away with them. That the assailants also stole their radio but that in the course of pursuing the assailants the radio was recovered. The witness's testimony is corroborated by that of PW3. Katugu Joseph, who testified that the following the theft at Kabajungu's he with others pursued the thieves. After about three kilometers at an eucalyptus forest they came across a person whom they arrested. He had two bottles of beer, two sackets of salt, 2

sackels of sugar each of one kilogram. 4 pairs of dn cells and a bicycle lock. ^I have no reason to doubt the testimonies these three witnesses. ¹ according!}, find that the prosecution has proved beyond reasonable doubt the ingredient of theft in respect of counts 3 and 4.

The second element is whether there was use or threat to use violence during the theft. The prosecution did not adduce any e\ idence of use or threat to use violence in the execution of the theft against Mary Nyamuhanga. ^I accordingly find that the prosecution has failed to prove this ingredient of violence in respect of count 3.

Yowanina Kabajungu testified that she was awoken from sleep at around l. OOa.m by people knocking at her door and ordering her in swahili to open. That two assailants gained entry into her house and bedroom by kicking the front door and the bed room door open. The assailants beat her husband as they demanded for money and dragged him to the shop room. That one ofthe attackers put a knife at the witness' neck as he demanded for money. The assailants ordered the witness to lie down before they made off with their root. The above evidence shows that there was a threat to use and use of actual violence in the course of the theft. ¹ accordingly find that the prosecution has proved this ingredient in respect of count 4 beyond reasonable doubt.

The third ingredient is whether there was use or threat to use a deadly weapon immediately before., during or immediately after the theft or causing death or grievous harm of any person during the execution of the theft. There was no death or grievous harm caused to anybody. A ''deadly weapon5' is defined under Section 286(3) to include any instrument made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive proposes is likely to cause death. There is no evidence that any such weapon was used or threatened to be used in the execution of the theft against Mary Nyamuhanga. ^I according!) find that the prosecution has failed to prove this ingredient of use of a deadly weapon in respect of count 3.

Yowanina Kabajungu testified that the attackers were armed with a hammer, a bicycle lock and a long knife. There is no evidence that the hammer or bicycle lock were used or threatened to be used in the course of the theft. The witness however testified that one of the attackers put the knife at her chest and her neck as he demanded for money. This act must have been intended to induce fear in the witness.

It is her testimony that she was frightened, scared and shaking. A knife can be adopted for cutting and as such a deadly weapon within the provisions of Section 286 above. There was no knife exhibited however failure to do so is not detrimental to the prosecutions case provided there is evidence of a careful and exact description of the exhibit made by the witness who saw it. See Uganda v/s Katusabe (1988-90) HCB Charles Komiswa v/s Uganda (1979)1 ICB 86. PW1 testified that one the attackers was armed with a long knife which ¹ find is sufficient description of the knife. The knife was used to threaten her in the course of the theft. ^I accordingly find that the prosecution has proved this ingredient of threat to use a deadly weapon bevond reasonable doubt in

respect of count $4$ .

Lastly is whether the Accused person participated in the commission of the offence. In his defence the Accused denied participation in the robbery. It is trite that an accused person cannot be convicted on the basis of the weakness in his defence or lack of defence. The burden is upon the prosecution to adduce evidence which beyond reasonable doubts puts an accused person at the scene of crime at the time when the crime was committed. The prosecution to discharge this burden relied on the testimony of Yowanina Kabajungu, the victim in count 4, as the sole identifying witness. The test is whether her evidence can be accepted as free from any possibility of error or mistaken identity. In Bogere Moses & Another v/s Uganda SCCA No. 1 of 1997 (ISCD (Crime)1990/2000 page 185 their Lordships stated:-

" This Court has in very many decided cases given guidelines on the approach to be taken in dealing with evidence of identification by eye-witnesses in criminal cases. The starting point is that a 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 and to warn itself of the possibility of mistaken identity. The Court should then proceed to evaluate the evidence cautiously so that it doesnot convict or uphold a conviction unless it is satisfied that mistaken identify is ruled out. In so doing the court must consider the evidence as a whole, namely the evidence of any factors favouring correct identification together with those rendering it difficult. It is trite law that no piece of evidence should be weighed except in relation to all the rest of the evidence ----'

In Abdalla Nabulele & Anor v/s Uganda (1979) HCB 77 Court set down the following factors to consider:-

- $(i)$ Whether there was light. - $(ii)$ Whether the witness knew the accused before or he was a complete stranger. - $(iii)$ Whether the witness had sufficient time to look at the accused or only had a fleeing glance. - $(iv)$ The distance between the witness and the accused at the time of recognition. - Any other destructive futures which might have helped in the recognition of the $(v)$ witness.

In her testimony Yowanina Kabajungu testified that she was attacked by five people at around 1.30 a.m. That the night was dark but that the attackers had a big torch which gave off bright light by which one could see far. That the torch was flashed constantly by one of the attackers as they demanded for money. That with the help of the torchlight she managed to identify two of the attackers. The two identified were the accused and another person not before court. The witness further testified that in the course of the attack as the attackers demanded for money she recognised the Accused's voice. Further that it was the accused who put a knife at her neck as the attackers demanded for money. The witness further testified that after the attackers had left her house she went to alert and mobilise her neighbours to follow the attackers. That on her way back at around $3.00$

a.m. she again saw the Accused who was hiding behind one Kumehira's house. Thai she confronted him but the accused insulted her and she ran away into the bush. The witness testified that she was able to recognise the accused because she had known him before for about five years. That the accused was her customer. He used to buy food sluffs from her and during the period she used to interact with him. That the second person who she had also identified used to come with the accused to buy food items from her. That ofthe five attackers, it was the two whom she identified as the accused and that other person whom the Accused used to come with to buy food stuffs from the witness, who entered the house. The other three remained outside and she only saw three people outside as she served them beers from inside on the instructions of the two attackers who were inside the house. The witness testified that at the point when the attackers gained entry into the house and into her room, she hid herself under the bed shielded by a curtain running along the bed. That while there she would hear the attackers asking for her whereabout. That she among the voices recognised that of the accused. The attackers dragged her husband to the shop-room as they demanded for money. Later the attackers came back into the bedroom and drew the curtain whereupon they saw her and pulled her from under the bed. She stood with the attackers as she pleaded with them. After she had given them money they ordered her into the shop room where she stayed with the two attackers serving them beers and serving their collogues who were outside and also packing drinks and other items for them in a polythene bag.

While inviting the assessors to examine Kabajungu's testimony on identification ¹ warned the assessors as ^I warn myself of the special need for caution before convicting an accused in reliance on the correctness of the identification by the eye-witness, as outlined above. Kabajungu's testimony shows that there was sufficient light from the attackers' torch which enabled her to see clearly. That the accused was not a stranger to her. She had known him for about five years as a customer who used to come and buy food items from her. That she spent reasonably long time with the two attackers who came in close contact with her as they got her from under the bed. stayed with her as she gave them money from the drawer and stayed with her in the shop room as she served them beers and packed various items for them in a polythene bag. The above factors when considered by themselves favour a correct identification of the accused by PW1. However it is trite that evidence must be weighed in relation to other factors which might have made the identification difficult so as to rule out mistaken identity.

It is this witness's testimony that the night she was robbed the gang of robbers continued on a robbing spree and robbed from other neighbours' homes in the Trading Centre. Indeed Nyamahunge Mary PW5 testified that he was home was attacked that night and robbed from. Also Zahura PW6 testified that hevjg that night attacked by robbers who assaulted him. Both PW5 and PW6 testified that the\ did not identify any of the attackers. Kabajungu testified that after the attackers had left she got a spear and run to her neighbours to mobilise them to follow the attackers. Among the neighbours was Kahungi Joseph. PW3. who was then the LC. II Defence Secretary of the area. Despite Kabajungu's testimonx that she had recognised the Accused among the attackers, it is PW3's testimony that w hen she reported the robbery to him she did not name the people

who had robbed from her. Such evidence creates doubt whether Kabajungu did actually recognise any body during the attack otherwise she would have immediately named the persons identified to PW3, the Defence Secretary. The test is whether the identifying witness's evidence can be accepted as free from a possibility of error. It is Kabajungu's testimony that in the course of the attack she was very scared, frightened and shaking in fear. It is also her testimony that her husband had been badly beaten by the time she was got from under the bed and was in terror. In such a state of terror and fear it is doubtful whether the witness was able to identify any of the attackers and that explains why she could not immediately name any to the Defence Secretary.

In such circumstances I find it necessary to look for other corroborative evidence. In this regard the prosecution relied on the testimony of Kabukuru Bendicto (PW2), Kahungu Joseph (PW3) and D/CPL Bwambale Jasuine (PW4). PW2 testified that during the night of 14^th August 2001 at around 3.00a.m he received a report from his daughter in law. Harriet Mulumba, that robbers had attacked his son injured him and stolen his property. That on his way to the scene, that night, at Rwengo Swamp the witness met a group of five strangers who confronted him for about three minutes. The strangers had a torch which they flashed at the witness and the witness saw that one of them was carrying a polythene sack containing things. That the Defence Secretary one Busigye who was coming after the witness shouted out and the strangers switched off the torch, dropped what they were carrying and run into the bush. The witness testified that when he went to the police station at Kyenjojo he recognised the Accused when his name was called out and he stood up in the cells as the person he had seen among the five strangers carrying the polythene sack. That he had that night been helped to see and recognise the accused by the strong light from the torch which one of the five strangers flashed at him. The circumstances of identification by this witness were such that it was at swamp in darkness, with the source of light being only a torch flashed by the people who confronted the witness. These people were strangers and only stayed with the witness for a brief period of about three minutes. As the strangers run off the witness also fell down, pulled himself into the bush where he hid for about ten minutes. The witness admitted that he was every frightened and his colleague the Defence Secretary run back to where they had come from abandoning the witness. In such circumstance it was very difficult for the witness to positively identify the Accused. The witness' ability of identification of the Accused was not tested by an identification parade. I find that this was a proper case to utilise the procedure laid down in rule 59 of the Uganda Police Standing Orders 7^th Ed 1984 Vol II Crime and the CID which provides:-

$\binom{m}{l}$ In all cases in which there is any doubt as to the identification of an accused person by any prosecution witness, subject to the consent of the accused. and identification parade will be held".

The manner is which this witness identified the Accused when he was at the Police and the accused stood up in cells when his name was called out is suspect and cannot be relied upon PW3 Kahinju Joseph testified that as they were pursuing the robbers after the attack on PW1 and the others, they heard a person coming behind them calling out:

# " *Baguma wail for us"*

Thai they arrested this man but he was not the Accused. The man arrested by PW3 and his collegues had tw o bottles of beer, two sackets of salt. ² sackels ofsugar, four pairs of dry cells and a bicycle lock which answered the description of some of the items stolen from PW1. However, this man was not produced in court to testified as to whether the Baguina he was calling out to wait for them was the Baguma Micheal the Accused before this court.

PW5 testified that one of the people arrested by the villagers after robbery named one Baguma Micheal as one of robbers. Again this person referred to by PW5 was not produced before Court. This witness' evidence is not acceptance under the provisions of Section 59 ofthe Evidence Act.

D/Cpl Bwambale Jasuine who was stationed at Kyenjojo Police Station testified that on 16th August 2001 he received a message from Kihura Police post to the effect that a robbery had taken place al Kihura. The message named residents of Kyenjojo as suspects, among whom was named Baguma. That he instructed informers and Home Guards to be on the look out for the named suspects in the area. The Accused was on such instructions arrested and when asked for his particulars he gave his name as Baguma Micheal. The officer who first arrested the Accused did not testify. In his defence the accused denied commission ofthe offence. Regarding his arrest the Accused testified that on 14lh August 2001 at around 3.00 p.m. he left his home at Gakahuma village, Kyamutya, Parish. Nyantungo Sub County, Kyenjojo District and went to Kyenjojo Town where he was arrested on allegations that he had robbed someone's property and taken to the police station where he was detained and later charged. No evidence was adduced to show when the Accused was first detained at Kyenjojo Police station in connection with this case. According to the Accused's evidence he was arrested on 14th August 2001 which was before D/Cpl Bwambale Jasuine received the message from Kihura Police post on 16th August 20011.

^I find that the evidence of PW2, PW3 and PW4 cannot provide corroboration to the testimony of Kabajungu. the sole identifying witness. It is trite that any doubt raised in the prosecution's evidence by the defence or generally must be resolved in favour of the accused. Form the reasons given hereinabove ¹ disagree with the gentlemen assessors and find that the prosecution has failed to prove beyond reasonable doubt that the Accused participated in any of the robberies for which he is indicted. ^I accordingly find the accused not guilty and acquit him on all the counts for which he is indicted. The accused is set free unless held on other lawful charges.

*LAMECltN. MUKASA*

*JUbQE/ 11/20005*

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