[1993] UGHC 48

THE REPUBLIC OF UGANDA IN THE HIGH COURSE OF UGANDA HOLDEN AT MASAKA CRIMINIE CASE MC. 105/92

UGANDA:::::::::::::::::::::::::::::::::::

The Hon. Mv. Justice Egonda Ntende

$=$ v e r s u s = BULLU KAWOOYA:::::::::::::::::::::::::::::::::: THE HONGURADE: I. R. JUSTICE I. MUKANZA BEFORE:

$\mathbb{R}$ U L I N G:-

This ruling is in respect of a submission of no case to answer against Bullu Kowooya. The accused person together with James Nakana and others still large were indicated of robbery contrary to section 272 and 273 (2) of the penal code.

The particulars of the offen e were that the accused person Bullu Kawooya, Jones Nokana and others still at large on the 29th day of October 1990 at Kwizinga village in Masaka District being erned with SMG No. 83 LU OU 83 and a panga robbed Peacal Wale of the following properties one cassette National Panasonic No. 14324 cash 75.000/= and shop goods valued at Shs. :5.000/= and at or immediately before or immediately after the time of the said robbery used a deadly weapon to wit a gun and a panga to the said Pascal Ntale.

The case for the prosecution was that on 29th October, 1990 in the night at around 9.00 p.m. Pascal Ntale PW1 was in his house asleep together with a small child aged about 10 years when he heard gun shots and the door to his house/shop was bonged. His house was adjacent to a bar and that the shop belonged to his brother who had just passed away and he was running it. Then robbers entered his shop. The gun man was dressed in army uniform and

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the other was dressed in civilian clothes with a jacket. The gun man dressed in army uniform pointed the gun at him. The man in civilian clothes was also armed with a gun and another person was armed with a panga. The intruders cut him on the head and arm with a panga. They demanded money from him. He gave them shillings 75\*000/= after giving them the money the irobbers took away some properties from his shop like sugar, radio cells, protex soap., tube for ladies, soda and new bed sheets.

The robbers came v/ith a bicySle and packed those goods in boxes. When the robbers left he made an alarm which was answered by very many people. He did not recognise any of the assailants because ~thq.v\_ stopped him from looking at them. He received information.';; at the same robbers had robbed on^e called Mulindwa Padcal.. The witness reitrated that those who came to answer the alarm came on the following day because in the night of the incident robbers shot bullets in the air and the villagers never responded to the alarm. He was positive that those who came to.answer the alarm never recognised any of the assailants. They reported the incident to the police ho visited the scene and collected the empty catridges which they brought to the police. The police urged them to carrjf out the investigations.

Four days after the incident he received information that some people were soon on Busenze village with some stolen properties. He could not recall the man who passed over the information to him. The witness together with other people including the informer proceeded to Busenze village to the house of Nakana (The latter had escaped and they left Bullu's home and went to Havana's place. They found ...,/5\*.

him in the house wnon saw them he wanted to run but he Weis pursued and arresued. He was told to produce things he had stolen and the gun. ITakana was interrrogated and he admitted having robbed .md led them to recover the gun in the house he was building. A nolle proseoue signed by the DFP was entered under section of TIB and was discharged. They did not find Bullu the accused present but they went to his father's homo. They were together with the PCs of the area when they went BulP.u's place. That they made a search ' to his father's homo. ..'hey found there some ointment £omuzig2\_l 'the protex socp^r there were about six protex soap. They left Bullu'^s house nnd went to Nakana'^s place. They found him in the house unon he saw them he wanted to run but he was pursed and arrested. He was told to produce the things he had stolden and the gun. Nyakana was interrogated and he admitted having robbed and led them to recover the gun in the house he was building.

In cross examination PW1 replied that he had not known Bullu Kawoya before. He had never seen him before. He did not not also see him at-the police station and even when he was brought to court ho was not there to see him. That there were two houses in Bullu's father's home. That they entered the big house with four bed rooms and not the small one. They found there a c«.,settc. The casette was from the bar and they found there an army uniform. He was together with Muzeyi Pascal Mulindwa. The latter identified the casette as having been stolen from the bar. Muzeyi reported the matter to the police who responded by arresting Nakana together with the gun and. ammunitions. And that when Nakana found that they had recovered the gun and ammunitions he

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admitted to have stolen. That among his stolen properties he recovered two pangas and Najoro.

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The second witness called by the prosecution was Lubega Joseph PN2. He testified that in october 1990 he used to run a bar. The bar belonged to one Pascal Mulindwa. It was situated on Luzinga village.

On 29th October 1990 around 9.39 p.m. a man armed with a torch entered their shop. He was torching around and at the time he was together with customers. The man had put on Camfloung army uniform and was armed with a gun. There was light in the house. The robbers pointed a gun at them and ordered them to lie down. They were reluctant to lie down until the robber conked his gun and fired. They took cover. The robber went out side and collected a stick and started assaulting them that the robber took with him a radio and the sales of the beer for that day. After that the robber was directed to next door of the shop which the robber directed him to: Open man but he could do not manage. The robber banged the door and it got open. He could not tell what took place at stale's shop where the robber went but he heard him being assaulted. He did not recognise the robber. When the robbers left he made an alarm, as to what happened after the alarm his evidence is similar to that of PW1 except where he testified that Ntale latter reported to him that the robbers had robbed him Shs. 75.000/= and that his soaps for women were also robbed plus the radio cells. And that they searched the home of Nyakana whom they found asleep in his house and they awakened him. They made a search and found a radio cassette under his bed and they also recovered the gun. He could not recall whether Nakana admitted having

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committed the rebbery.

The third witness was Fascal Mulindwa PW3 whose evidence was to the effect that he owns a bar at Luzinga and it was Joseph Lubega who was running the bar. That on 29th October 1990 at around 9.30 p.m. he had gone outside the bar on his return he found somebody at the gage who was in army uniform and jacket who pointed a gun at him. He fired at him and he took cover. He managed to escape and later heard bullets he reported to the NCs and made an alarm of "Gwanga Mugye."

Lubega later reported to him that his radio cassete was gone plus hard cash realised from the sales of that day. Ntale also told him that shop goods like radio cells, cream, sugar and some small items were robbed from him. He reported to the RCs and to the police and also delivered the empty catridges to the police the rest of his evidence as regarded investigation was similar to the testimonies of the previous witnesses except where he emphasized that at Busenze the RCs enquired from Bullu's father the where abouts of his son who replied that the latter had gone in the town. And that the RCs ordered Bullu's father to open the door to his son's house which order was complied with. On searching the house they come across the radio cells, two kilograms of sugar, cream lady's tubes and other small items.

That at Makana's place they came across a radio which he identified as his and that when interviewed admitted to have carried out the rebbery and that even a gun was palm trees recovered just in the new house covered with : / $\ell$ leaves from which mate are made and that Nakana first informed those people carrying out the search that other properties were with one Bullu and that it was Bullu with

## whom they went co steal.

This witness testified that he never recognised the robbers in the night in question.

The evidence of Dot/Asst. Superitendant of police Richard Badaga PV/4 was to the effect that on 2nd November 1990 while at Masaka police station some six suspects were brought and handed over to him allegedly to have committed robbery at Lujunga. The suspects ha.d been arrested by Kafero the leader *of* the But aka security group. He fearrested them and detained them. Four of the suspects were found innocent and he released them where as Nakana and Bullu were charged with instant case.

. The fifth and last witness called by the prosecution was Musa Kafero that on 2,1'<90 he was in his Office as chairman of the Bathka security group when he received a report that they had arrested the thieves. He left with his staff and policemen. They went to Busenze village where they found Nakana who was already arrested with a gun, when Nakana was rearrested revealed to him that his group included among others one Bullu

On their way to ^IJ. as aka Kyanjala they found Bullu. He was in the shops walking and was shown to them by Nakana. They stopped Bullu fled and was chased and arrested and brought to Masaka police station.

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Precisely that was the evidence adduced by the. prosecution in proof of the indictment preferred against the accused person.

It is trite law that a prima facie case does not mean a a case proved beyond reasonable doubt. The court is not required at that stage to decide fully whether the prosecution evidence is worthy of credit or whether if believed is weighty onough to prove the case conclusively. The final decision it has been held time and again in many cases can only be properly made when the case for the defenc has been made See: U cnda Vs. Eryazi Kasaija HCCS No. 99/90,<br>Uganda vs. / Kadiru Kyanju and others, Uganda vs. Alfred Ateu 1974 HCB 170

And also a prima facie case is where the court could at the close of the pwos cubions case convict if the accused offered no explanation.

In addition to what has transpired above the principle upon which a submission of no case to answer may be properly made and upheld is well settled and is as follows:-

- (1) When the prosecution has not adduced evidence to establish one of the essential ingredients of the offence. - When the prosecution evidence has been so $(2)$ discredited as a result of cross examination is manifestly on so unreliable that no reasonable tribunal could safely convict on it See Ramulal Bhatt vs. R 1977 E. A. 332 Vabilo dies Musa Vr 19 EAR P 84, U mda Vs. Atek Supra.

In cases of robbery with aggravation the prosecution has to prove the following ingredients of the offence.

- (a) There must be theft as per section 272 of the penal code. - (b) There must be violence of one form. - (c) A deadly weapon must be used or threatened to be used Curing the course of the commission of theft. - (d) The accused must be recognised as having $\frac{1}{2}$ . /8.

(d) participated in the commission of the crime. See: Opoya Vs. Uganda 1967 EA 175 (7), Kamusiiii^L ethers vs. Uganda 1976 HCB P. ^59, Pwamunyono criminal case No. 59/83^c

Turning ro the first ingredient of the offence whether there was theft-, where was evidence from PW1 Ntale Pascal that on 29.11.1990 at night he was attacked by some robbers who robbed him oi certain shop goods worth 25.000/= a cassetand cash Shs. 75-000/=. ^-'here was evidence in corroboration to the theft from Lubega Joseph PW2 who witnessed the attack and lost money realised from the sales of beer to the same robbers who robbed PW1. Mulindwa Pascal was the owr^r of th' b bar ran by Lube ? lie had gone outside when the robbers the robbers at the gate and actual robberies in PW1'^s shop and in ran by PW2. In the end the evidence of robbery as described in section 272 of PCA was established PW1, PW2 and PW3 showed that escaped but never witnessed the amounted the robberies. He met there was theft. So the first ingredient of the offence of

some kind of violance PW1 cut him on the head and arm that there was some form of of the crime. . latter and prosecution respectively As to whether there was testified th.it one of the robbers with a panga and according to the witnesses like Lubega and Mulindwa PW2 and PW^at the time of the said robbery the robbers fired some bullets. In the it is premises/safe to conclude violence at thecommission

of the offence was whether ^a deadly edient to be used in the he was cut with a The thir panga. A pan; weapon must have been used or threatened commission of robbery PVH testified that a deadly weapon as per the. definition

Of a deadly weapon under section 275 (5) of the PCA. And as • regards, to thejun hich was fired in the course of the robbery it has. been held that if a gun is fired in the course of robbery a court will have no difficult in holding it as deadly. .. If it is not fired but merely-it"is used to threaten. In this case a finding bused on evidence that the gun's deadly weapon is essential before its threatened use nas-e constitute oggrxXV^dl robbery under section 273 (2) of the penal code\* Wasaja and Bivunbi's case. So in this regard a panga and gun which are deadly •./eauon were used during the robbery of Ntale Pascal,

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The fourth. and last ingredient of the offence is whether Bullu participated in the robbery. The complainant in this case never recognised the assaults and so did PW2 who was ordered rnl the robbers to lie<- down, PW3 escaped before he was able to recognise the accused perdon and others. Sometime later the accused was found with some stolen properties when his house was searched, The learned senior state attorney submitted that thou..,hi the accused was not identified by the prosecution witness at the scene he submitted that the t confession by ITokona who was not before the court and the accused being found nith stolen property would warrant the accused to give an account about the stolen property because Nakana said he committed the offence together with the accused person. And that if no such explanation is given the accused be convicted of robbery.

Accordin.-evidence on record when Nakana was interrogated he revealed that the participated in the robbery together with the accused person\* As stated earlier Nakana was not before the .court. He is said to have escaped what^

he told prosecution witness about the accused person was in my con.oic-.ej.ed opinion hearsay and even if I might be wrong he is a.n accomplianee and his evidence therefore required some:corroboration. As regards properties said to have been found found in- the house of the said Bullu. Here thdoctrine of recent possession comes into play. There is a rebutabic presumption th=?t a man who is found inpossession >•, of . A'folf-n goods soon after the theft he is either the thief or guilty receiver unless he can account for his porsession. Jhat constitutes recent possession depends on the nature of th.? property and eveything must depend on the circumstance^ V' of each case, factors such'as the nature of the property stolon, vfjether it be the property that readily passes from hand to hand and the trade or occupation to which the accused person belongs could all be taken into account See H vs. Hassan S/C Mohammed 1948 15 EACA P 199\*

Looking at the nature of stolen goods found in the house^Bullu like 2 kilograms of sugar, protex soap and some ointment (vaseline). T£ese are kind of properties that could easily pass from hand to hand. I agree with the submission of the learned counsel appearing for the accused person t/ at Ly-the nature items the same could be obtained by anybody in any market. Besides that evidence of receiving stolen property is the weakest of its kind. There is no evidence of guilty knowledge and evidence marred is with contradictions by the prosecution evidence as to wheth r the stolen goods the radio casette was recovered in the possession of Nakana or in the house of Bullu. In fact the prosecution has failed to prove that the accused participated- in the commission of the crime with ^ich^he

was indicted\* It is the firm of this court that no evidence has been adduced to warrant to put the accused on his defence either of the present charge or any other minor cognate offences to the charge of aggravate robbery. In essence 4f the accused chose to keep quiet no reasonable tribunal could convict the accused on the evidence before this court.

In the end result the submission by the learned counsel appearin.;, for the defence that the .accused has got no case to ans'.or is upheld in the sense that the accused person is acquitted of aggravated robbery contrary to section 272 and 275 (2) of the pe-nal code act. He is to be released from custody f rth with unless he is being held for any other cognisable offence. So I order.

> S/.i • \ — *'*I. MUKANZX J U D G A 12.10.1995

12.10^1995

Accused before court.

Mrs. Damali Lwanga for the state. Mr. Nyanzi holding brief for Mr. Matovn - present. Assessor Mr. Dominic V/arwa and Mr. Sekayiba. Court: Polling is read and signed.

jul' z •} I. MIONZA'—' JUDGE ^&gt;

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