[1994] UGHC 90

IN THE HIGH COURT OF UGANDA /IT FORT PORTAL CRIMINAL SESSION CASE NO. 388 OF 1991

UGANDA 4; PROSECUTOR

## VERSUS

A1: BAGWETE MUSTAFA I

A2: BAHEMUKA PATRICK I

:::::::::::::: :::::::: ACCUSED

BEFORE: THE HONOURABLE LADY JUSTICE M. KIREJU

## JUDGEMENT

The two accused namely Bagwete Mustafa A1 and Bahemuka Patrick A2 were jointly indicted for robbery with aggravation Contrary to Section [ 272 and 273 (2) of the Penal Code Act. I shall hereinafter refer to them as A1 and A2 respectively- It is alleged that the two accu®ed on 6/6/1991 at Burondo village in Bundibugyo District robbed Bahemuka Clovice of one radio Cassette and cash Shs.'30,000/= and at or immediately after the robbery threatened to use a deadly weapon to wit ^a gun to the said Bahemuka Clovice. Both accused pleaded not guilty to the indictment.

The prosecution called ⁶ witnesses. The case of the prosecution is t'hatP. W. I the complainant and P. W. ² Julius Tusiimc while at home on 6/6/91 at. around 10. a.m. the two accused with ⁴ others who included ... an NRA soldier appeared. They entered the house and demanded for the ' receipt of a radio cassette which was playing. The receipt was given to the army.man who pocketed it and alleged that the cassatte was stolen. They started beati'ng the complainant and P. W.5, the army plan used the but of the gun and the accused used sticks, PW.5 was injured on the head. The army man went outside the house and fired 2 bullets in the air when he returned the two accused entered P. W.l's bedroom and came out and continued beating the victims. When P. W.⁶ Kabukeca the father of P. W. I and P. W.5 heard the gun shots he run to go and check what had happened. When he arrived he was also beaten. The attackers stayed from 10a.m. until ⁶ p.m. in the evening. They also took ^a chicken and Shs. 2,000/= from P. W.6, After they had left P. W.1 found his shs.30,000/= gone. P-W.1 reported the matter the following daj- to RCI Chairman P. W.³ who sent him to RC2 Chairman then to Chairman

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RC3, Kacwankende who gave him ^a 'letter'~to-'\*t\*ake tp^ pplifo.' The two accused were later arrested by Police \i-re-\* P-. W.-/. 4;'..and:;taken to Ntandi Police Post. I shall not consider the admissions.allegedly made by the ² accused persons to P. W.4 as there was no evidence that a •aution was administered before these admissions were made\* '

The case for the defence is ^a flat denial of any involvement in the matter. A1 testified on oath tha.t he does not know anything about the robbery and has never been to Burondo village where the robbery is alleged to have taken place. He said that he mot A2 at the Police Post Ntandi for the first time. He said that while he was at his home on 10/6/91 nursing his sick children the Police came and arrested him. A2 also testified on oath and said that he too did not know A1 until ^J they met at Ntandi Police Post after his arrest. He said that he did not know the prosecution witnesses. He said that while at his home -on 10/6/91, the Policemen ratoe and arrested him, he denied any knowledge of the offence.

It is established principle of our law that the burden of proving the accused's guilty beyond reasonable doubt is upon the prosecution throughbut, it never shifts to the accused except in some rare cases where the statute provides otherwise., Woolmington vs. DPP 1935 AC A62 and OkPthi ^kale &\_ others vs. Republic ¹⁹⁶⁵ EA 555\* Tt is also the law that a conviction should not be based on the weakness of the case as put up by defence but it must be based on the strength of the prosecution easeyUganda vs. Oloya s/o Yovan Omeka 1\*?7 HCB. A.

In order for the prosecution to secure a conviction for aggravated robbery it must prove beyond reasonable.doubt inter alia, the following matters:-

- (l) that there was theft of property - (2) that there was violence involved ': - (5) that there was a threat or actual use of a deadly weapon as defined in Section 273 '(2) of the "Penal Code Act, - (A).¹ that the accused directly or indirectly' participated in the robbery. -

The case of the prosecution in respect of his first ingredient is that on that fateful day a radio cassette, and cash Shs. 30,000/=. were

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¹ */j* taken away from the home of the complainants - The. cpinpjlainant PJN.i 7/ , testified that when the attackers entered his house, they demanded to see the documents of the radio cassette which was on the table\* After the receipt was given to the armyman he put it in his pocket and claimed that it had been stolen i.e. the cassette. When the robbers left in the evening they took the cassette with them.\* After the robbers had gone P. W.1 went 'and checked in his bedroom ,where ho had kept his money under a mattress, he found that shs. 30,000/= was missing, and the mattress had been thrown down. During the attack two of the gang had entered his bedroom. P. W.⁵ and P. W.⁶ who were present during the attack also j.. testified that ^a radio cassette was taken and also a chicken. P. W.1 p also informed them of the missing Shs. 30,000/=. P. W.3 Serwano Karusoke testified that at around ⁷ p.m. the same day, the two accused went to his home with an armyman with a gun and another person, they had a radio and a chicken. He recognised the two accused persons, as tiro of those ^A people who came to his home. However, I am not relying on P. W. 3!s testimony as he was not clear about the indentity of the attackers. Mr. Mugamba learned counsel for the accused submitted that theft had not been proved as the stolen items were not exhibited. He contended that the radio was not properly descibed and no one saw the money being removed from the house. With due respect to Counsel, I aft/-of the considered ' , view that all the" witness P. W. I, P. W.⁵ and P. W.6 all testified that ^a radio cassette belonging to P. W. I was actually carried away by the attackers on that day. The radio cassette was sufficiently described by the ³ eye witness and their evidence on this matter was never challenged. I also have no reason to doubt P. W. I when he says that his money was also taken. There is evidence that the attackers were demanding money and they entered P. W. I's room and stayed for 20 minutes. P. W. Ireported to RCI Chairman P. W.³ Burondo village about the money. I am • • 11 convinced that if there was money in that room they could not have left it there. I have no reason to doubt P. W. I's evidence I found him to be a straight forward and -truthful witness,.. The fact that the lost property was not exhibited is not important provided it is property described by - • . . the-witnesses as in most cases stolen properties are never recovered:

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I have therefore found that the James Biramire vs. U 1976 HCB 182. fact of theft has been proved as the bomplainant's radio cassette, chicken and shs. 30,000/= was stolen: Sekawa vs. Uganda 1979, HCB 119, is essential held that proof of theft in an offence of robbery.

On the issue of violence, P. W. I told court that he was beaten together with P. W.5 and P. W.6. The attackers used sticks and the but of the gun. P. W.5 Tusiime was injured on the head. P. W.6 said he was kicked in the sides. The whole time from 10 a.m. until 6 p.m. when they left the attackers were assaulting the victims intermittently. One of the attackers, the armyman who had a gun is reported by P. W. I have and P. W.5 to fired 2 bullets in the air. It is my humble opinion that the assault on the victims amounted to violence within the meaning of Section 272 of the Penal Code Act.

Regarding the question as to whether a deadly weapon was used or threatened to be used, the prosecution case is mainly based on the evidence of P. W. I and P. W5, who testified that when the attackers came, they had an army man in the group who was in an army uniform, he had a gun with him. While they demanded money the army man went outside and fired 2 bullets in the air. These gunshots were heard by P. W.6 from his about<br>home which he raid was 1, 5300 metres from P. W. I's home. P. W.6 who is the father ... P. W. I identified the gun shots as coming from his son's home, so he went there to see what had happened, he found the two accused, a soldier, Beitaka and another person he did not know. On this ingredient counsel for the accused submitted that the prosecution has not proved that a lethal weapon was used in the robbery. He contended that it was possible to have a firearm which does not meet the description of a lethal weapon. A firearm in order to be a lethal weapon must be capable of discharging bullets. He submitted that in this case there was no evidence that the device that was being held by the soldier -was eapable of discharging bullets, that the evidence on record is that there was firing around the house but the exercise could have been resultant from another party or from another device. Counsel submitted that to prove that it was the actual gun the prosecution should produce the gun for examination or produce spent pellets or catridges. The state counsel Mr. Kikemeke $...5...$ w

*'/n* his part submitted that since bullets were fired in this ease there was no need to have the gun produced in Court and tested. He referred Court to the cases of . Vasaja vs. Uganda 1975 ¹ Si ~ahd-'SBabari "BITuriiba & another vs, Uganda Crim. Appl. *?2/89.* In the case of Wasaja the Court of Appeal held that if ^a gun is fired in ^a course of ^a robbery, ^a court will have no difficulty in holding that it • is ^a deadly weapon, if it is not fired, but merely its use is threatened as was in Wasaja case ^a finding based on evidence that the gun was a deadly weapon is essential before its threatened use can constitute aggravated robbery under S. 273(2) Where of the Penal Code Act\* the gun is not fired, it is essential that the device be shown to have been ^a lethal weapon in the form of a gun capable of firing and not a toy or any other imitation of a gun. In the case of. Uganda vs. Firimigio Kakooza /198\*\* / HCB ^I where gunshots were heard during the robbery it was held that the prosecution had sufficiently proved the existence of a deadly weapon\* As stated earlier the prosecution witnesses did hear the soldier shoot twice outside after living their, in the house. P. W.6 arrived at the scene after hearing the gunshots. It was also said that because of the gunshots nobodyelse except P. W.6 went to the home of P. W.i, because they were scared and run to the bush. I have no reason not to believe the evidence of these witnesses that a gun was fired.

In my considered opinion, the prosecution has proved beyond reasonable doubt that the weapon which the soldier was currying was a gun and as such was a deadly weapon within the meaning of S. 273 (2) of the Penal Code Act. In all the circumstances, I find that the offence of aggravated robbery was committed to the prejudice of the complainant Clovice Bahemuka on the 6/6/1991•

The last and crucial issue to be determined is whether the accused persons took part in the robbery. Here the court is confronted with the issue o-f indentification of the accused a. number of factors must be taken into account in determining whether or not the person whom the witness claim to have seen at the scene of crime is the accused before court. The witnesses may be honest but mistaken about the indentity of the person

whom they claim to have recognised therefore care must be taken in accepting that evidence as being free from doubt. In the case of Abdalla Nabulere vs. Uganda (1979) HCB 77. it was stated that in deciding this issue the court should consider whether the accused was known to the witnesses before the incident, the source of light, the period the accused was kept under observation, and the distance between the accused and the witnesses. In the case before court now the prosecution case relies on the evidence of P. W. I, PW.5 and P. W.6 who were eye witnesses in this case. P. W. I testified that 6 men came to his home on $6/6/91$ these included a soldier whom he did not know. 11 whom he had ever seen before and 42 whom he had seen around for a year, he used to see him in Ntandi market, he recognised him by his face but did not know his name. P. W.5 he said that he knew 5 of the attackers, Birungi Karuru and Bahemuka Patrick who were L. D. F. worked at the Gombolora Kasitu. He also recognised Mustafa Bagwete, that he stayed at Ntandi and he used to see him in the market and at the Gombolora Headquarters. P. W.6 also testified that he recognised, Mustafa, Bahemuka L. D. F., Karuru, Beitaka who worked at the Gombolora, Birungi and the soldier whom he did not know. All the eye witnesses testified that the attackers stayed around from 10.a.m. to 6 p.m. a period of 8 hours, and this was in broad day light.

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Counsel for the accused attacked the evidence of the 3 witnesses that, the father had his two sons were telling a rehearsed story of saying that the 2 accused were involved in the robbery. He also said that since P. W. I saw i1 at his home for the first time there was a chance of mistaken indentity. Having seen the 3 prosecution eye witnesses, I do not think they were telling a rehearsed story, each one of them appeared to be telling his own story as it happened. Even if P. W. I had never seen A1 before, I am of the considered view that he had ample time to observe him a period of 8 hours, chances of mistaken indentity would be very minimal in the circumstances. In the case of Wamala William vs. Uganda Criminal Appl. 20/84. The Court of Appeal held that the fact that all witnesses were relatives did not call for the corroboration of their evidence I also so hold

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the same view with regard to the ovidence of P. W.1, P. W.5 and P. W.6.

Tied up with the issue of identification is the accused persons defences of alibi. It is the principle of the law in this Country that once an accused puts up an alibi as his defence he does not assume the duty of proving that defence, his only duty is to raise that defence and once he has done that it remains the duty of prosecution to distroy or weaken it by adducing evidence which puts the accused at the of the crime. Uganda vs. Sebyala 1969 EA. 204, Raphael Aliphonce vs. R 1973 EA 473, Uganda versus Male & mother 1976 HCB. 219, Uganda Dusman Sabuni 1981 HCB I.

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As stated earlier both accused denied having been at the scene of crime at all. As for A1 he testified $th_at$ he did not know the co-accused A2 he met him for the first time at Ntandi Police Post. He said that he did not know all the prosecution witnesses. He did not know Burondo village and has never been there. He was arrested by the Police at his home, he does not know anything about the alleged robbery. He denied being NRA (National Resistance Army) informer. A2 testified that he was a member of L. D. F. (Local Defence Force) from Karambi village. He met A1 for the first time at Ntandi Police Post after he had been arrested. He did not know P. W. I, P. W.5 and P. W.6. He said he did not know Burondo village. The Police men found him in his house sleeping on 10/6/91 and arrested him on allegation that he had stolen somethings namely radio cassette and money.

Counsel for the accused argued that the prosecution did not show that the accused persons were arrested immediately after the alleged crime. The State has not shown that the accused was found together with the radio and money, so there was no cogent evidence incriminating them. He said that the accused persons deny being at Burondo village on the day of the robbery and it was up to the prosecution to show that the accused persons were there. The state counsel on his part argued that the complainant took 3 days to report the case to Police, this delay was caused because the complainant had to report to RCs first who gave him a letter on 8/6/1991 Exh. P. I which introduced $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

him to. Police, I agree that there was no inordinate delay in report^ the matter to Police, the cause of delay was satisfactorily explained V by P. W.3 and P. W.4. Also the fact that none of the stolen items were found with the accused does not automatically exonorate them. It was stated by both accused that they did not have any grudge with the prosecution witnesses, as they **did** not know them, and they did not know why they made such allegations against them. I have considered the fact that the accused persons were known to P. W.5 and P. V/.6 before the incident took place, that the incident .tpok place, in broad- day light, that the accused and their group took a very, long ..time-with..the -3 *eye witnesses* in particular P. W. I and P. W.6 and the fact that the 3 witnesses, were not shaken in cross examination on whom they actually saw on that j day. I find that there existed conditions favouring correct indentification of the 2 accused by the 3 prosecution witnesses P;W. 1, P. W.5 and P. W.6, I did not rely on the evidence of P,W.2 as he was not very clear as to wheom he saw that evening, I accept the evidence of P. W. I, P. W.5 and PrW,6 to be truthful in that they saw .and identified- the accused positively - at the scene of the crime on that day. Both accused defences of alibi have been effectively negatived by the prosecution evidence.

The law is that where discrepancies or contradictions are found in evidence to be serious or grave unless reconciled will result in J the rejection of the evidence. However, should they be minor, unless they point to deliberate untruthfulness they are ignored. Uganda vs. Blkamikire 1972 HCB In the instant case there were few inconsistencies which I did not find to be serious. **For** 'example P. W.3 H-C. I Chairman testified that P. W. I.reported to him that only ³ people went to ro¥ him at his house the ² accused.and one other person. However, all the eye witnesses including P. W. I testified that there were ⁶ attackers, even Exh. P. I reflects this evidence. The same witness testified that P. W. I reported that Shs. 30,000/=, smoked fish and chicken were the only things stolen from his house, the radio was not mentioned. I took it **that** this witness did not remember properly these things since he did not seriously get involved in the case. When P. W. I reported to him, the witness told him that the case was beyond his

powers and he forwarded him to RC2 who also sent him to RC3. I have therefore found that the inconsistencies in the evidence of the prosecution witnesses were minor and of no consequence.

The next matter to be considered is that of common intention. It is settled principle of our law that in order to make the doctorine of common intention applicable it must be shown that the accused shared common intention with others to persue a specific unlawful purpose which had to be commission of the offence S, 22 of the Penal Code Act refer.' P. C. Ismail Kisegerwa and P. C. Bukombe vs, Uganda 1979 HCB 81» Republic v Cheya and Another 1973 EA 50Q» In order for the doctorine to apply there need not be arranged plan among those > involved in the commission of the crime. S. C. appeal 39/89 Bumbakale Lutwama *?< ^h* Others vs. Uganda. Common intention may be inferred from their presence, actions and failure to disassociate oneself from attack ^R v Thbulayenka s/o Kiirya & ³ others 19^3 10 EltCA 51\*

In the instant case the prosecution adduced the evidence of P. VJ. I, P. W.5 and P. W.6 who described what parts were played by the ² accused .during the attack. According to the evidence, Al was handed the radio cassette by the soldier, and he is the one who carried it away. He also supposed to have demanded money and participated in beating of the victims with sticks he got from P. W. I's sitting room. A2 is also said to have participated in the beating, he also went to the bedroom of P. W. I,- where money was found missing after the attack. From the evidence, the actions of the ² accused were not those of the spectators but were actively involved in the attack. The whole operation lasted ⁸ hours but there is no evidence that any one of the two accused left the group for any moment or that they were there against their will. P. W.6 also testified that the chicken which was taken from P. W. I's home was prepared at Al's home. The evidence on record overwhelmingly prove that the accused had common intention of robbing the complainant with others not before court. The fact that other attackers were not charged does not mean that the ² accused should be execused.

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At the close of the case I found that there were some procedu'^. shortcomingsin the committal proceedings. However, I was convinced that they did not prejudice the accused or occassion any miscarriage of justice as the accused persons were actually informed of the case against them and handed the appropriate documents.

One of the assessors advised me to find the accused parsons guilty of ^a lesser offence of simple robbery even if ^a deadly weapon was used. I defer with this assessor as the lav/ does not give court any discretion to reduce the offence to a lesser offence outside the law. The assessor however agreed that the prosecution had proved its case against the accused persons, to that extend . I agree with him.

In full agreement with the opinion. of.\_the 2nd assessor I find that the presecution has proved itc case of aggravated robbery Contrary to Sections 272 and 273 of the Penal Code Act beyp.nd reasonable doubt against the ² accused persons. I find both accused guilty and I convict each of them of the offence.

M. Kireju

Judge 11/1/94