[2022] UGHCCRD 151

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

### **HCT-00-CR-SC-0816-2018**

**UGANDA :::::::::::::::::::: PROSECUTOR**

### **VERSUS**

**BWOGI JAMES ::::::::::::::::::: ACCUSED**

### **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

#### **JUDGEMENT**

The accused, **Bwogi James,** is indicted on 3 Counts of Aggravated Robbery c/ss 285 and 286 (2) of the **Penal Code Act.**

It is alleged in the 1st Count that during the night of the 3rd day of October 2018, at Komamboga - Kwata in Wakiso District, while armed with knives, the accused and others at large, robbed one Sekawungu Peter of two flat screen TVs, Laptops, 3 hard drives, 2 mobile phones, Microwave, MV Reg No UAR 779 D and a wallet containing UgX 400,000/- (two million shillings) all valued at UgX 45,000,000/-.

It is alleged in the 2nd Count that during the night of the 3rd of October 2018, at Komamboga - Kwata in Wakiso District, while armed with knives, the accused and others at large robbed one Gali Dennis of mobile phones and laptops valued at UgX 5,000,000/-.

In the 3rd Count it is alleged that during the night of the 3rd of October 2018, at Komamboga - Kwata in Wakiso District, while armed with knives, the accused and others at large robbed Kasiita Stella of a laptop and mobile phones valued at UgX 5,000,000/-.

The accused person pleaded not guilty to the indictment.

The brief facts for the prosecution are that between 2.00 am and 3.00 am in the night of the 3rd of October 2018, several people broke into Peter Sekawungu's house in Komamboga - Kwata in Wakiso District. The house has several bedrooms and an exterior guest wing. Gali Dennis was asleep in a bedroom opposite the master bedroom. He got up to the sound of the bedroom door being broken. Several men entered armed with knives and pangas. They started demanding for money. He gave them his wallet which had no money in it. The men switched on the light and dragged him to the master bedroom where Sekawungu was and they tied his hands and legs to the master bed.

Peter Sekawungu was asleep in the master bedroom when he was woken up by men holding pangas who had, at that point, broken into the house. They tied him to the master bed. They then switched on all the lights and asked for money. It was at that point that Gali was brought into the room. The assailants broke into the Guest wing where Kasiita Stella and her husband Ndaula stayed. They were then brought into the master bedroom as the assailants ferried house hold items out into one of the cars parked in the compound – a Toyota Carib Reg No UAR 779 D. Afterwards the assailants drove out of the gate with the car packed with the stolen items.

The matter was reported to the Police who visited the scene. A panga was recovered abandoned by the assailants in the compound. The panga was exhibited.

After eight days, on the 11th of October 2018, the motor vehicle was recovered from an overnight parking space in Kyengera where the accused had taken it. The accused was arrested when he came to pick the car and subsequently charged with these offences.

The accused however denied participating in the commission of this offence. He states that he first saw the complainants in Court. That he lives in Kireka Bira in Wakiso district. That on the 27th of September 2018 he left for his village of Kiti Nkokola in Mityana district to take school fees for his children. He did not return until the 14th of October 2018. That on his return, his former boss called Serunkuma directed him to go to Kyengera and pick a car from a parking yard there. He was then to take the car for washing. Serunkuma gave the accused the receipt to use for retrieving the car which was Reg No UAR 779 D. The very car that was exhibited in Court. The accused states he did not know where the parking yard was and had to seek directions from people. That when he got to the parking yard the man in charge told him, through an interpreter, said that since he was not the one who brought the car it should be the person who brought it to pick it. He called Serunkuma and the man in the parking yard spoke to him. Suddenly the man turned on the accused and called the police who came and arrested him. That he had been in detention since that day.

The accused stated he had never entered nor touched the car. That the man who sent him to pick the car was arrested and is currently in detention on another offence and should therefore be charged with this offence.

It is trite law that the burden lies on the prosecution to prove the guilt of the accused person by proof of all the ingredients of the charge of Aggravated Robbery. This burden will not shift to accused in whatever the circumstances. The required standard of proof is to a level beyond all reasonable doubt.

The essential elements of the offence of Aggravated Robbery are:

- 1. theft of property; - 2. use of a deadly weapon; and

3. the participation of the accused.

# (See **Walakira Abbass & 2 O'rs Vs. Uganda S. C. Cr. Appeal No. 25 of 2005**).

i) Theft

PW 1 Gali Denis testified that on the 3rd of October 2018 his wallet with cards, TV, hard drive for a computer and drone all valued at 4.97 million shillings were taken. Sekawungu Peter stated that his mother's car Reg No UAR 779D, suit cases full of cloths, a wallet with UgX 400,000/-, 2 phones, 2 TV a 56' and 32', DSTV decoder, Bose speakers, drones, microwave and several house hold items like cutlery were taken from the house, piled into the stolen car and taken away. Apart from the motor vehicle the rest were never recovered. He had just returned from abroad and had items still packed in suitcases.

Kasiita Stella lost a laptop and two mobile phones.

The question here is whether the above amounts to theft. **The Oxford Dictionary of Law** defines theft as the dishonest appropriation of property belonging to someone else with the intention of keeping it permanently.

The items listed above were taken from the complainants with the intention of keeping them permanently. The assailants had no claim of right over them. Apart from the car and a TV remote found abandoned in the car, the rest have never been recovered. There is no evidence on record that offers a contrary account to the loss of items being taken from PW 1, PW 2 and PW 3. In the circumstances this Court finds that the element of the theft has been proved to a standard beyond reasonable doubt.

ii) The use of a deadly weapon

Gali Denis told the court that when the assailants broke into his bedroom he saw that they had pangas and knives. That they threatened to cut him unless he produced money. After he was dragged into master bedroom and tied to the master bed, they hit with the blunt side of a panga. He kept begging for his life. It was his evidence that he was left severely traumatised by the whole incident.

Sekawungu was also fastened to the bed after the room had been broken into. He saw several men armed with pangas and knives. A panga was placed on his neck and he was told that he would be cut unless he produced money.

Kasiita Stella had been dragged into them with her husband Ndaula. The husband was tied to the bed while she was seated on the floor. She had just had a baby who was crying. The assailants told her to keep the baby quiet. She also saw several of them with pangas and knives. One of them put a panga to the neck and head of Denis and threatened to cut him.

The police visited the scene of crime the next morning. The scenes of crime officer was able to trace both the point of entry and exit into the house. Behind the guest house he found a brand new panga with the sign of a crocodile abandoned. That the witnesses told him that the panga did not belong to them. Kasiita Stella identified it as the one used during the robbery. This court received the panga as exhibit **PE 8 (b).**

Section 286 (3) of **the Penal Code** defines a deadly weapon to be or include any instrument made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death.

It is trite that a panga is sharp edged and properly fits into the above description. In Uganda the courts have indeed found that a panga is a deadly weapon within the meaning of S. 286 (2) of **the Penal Code Act** (see **Walugembe Henry and Others Vs Ug SCCA 39/2003).**

In the circumstances the court hold and finds that the element of the use of a deadly weapon has been proved beyond reasonable doubt.

## 3) Participation

The accused denied any involvement in the commission of this offence. He set up an alibi stating that on the 3rd of October 2018, the date the offence is alleged to have happened, he was in his village of Kiti Nkokola in Mityana district.

By setting up an alibi, he did not assume any duty of proving it. The onus remained on the Prosecution to prove to the required standard that the accused was at the scene of crime. (See: **Moses Bogere and Anor Vs Uganda S. C. C. A No. 001 of 1997).**

The prosecution relies partly on identification evidence. All four victims in this case state that they were able to identify the accused at the scene of crime. I note however that the break-in is alleged to have happened after 2.00 am and before about 3.50 am. These witnesses had been sleeping before they were woken up.

This type of evidence calls for special scrutiny and caution before a court can rely it. I am alive to the need for caution. I also take note of the holding in **Abdalla Nabulere and Other vs Uganda Cr App No 9 of the 1978** where it was held that,

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger.

PW 1 was Gali Denis. He stated that he was woken from his sleep and dragged by the assailants to the master bedroom. That the assailants switched on the lights in the house and in that way he was able to clearly identify the accused. It is his evidence that the lights were bright electric lights He told the court that his nature of work as a tour guide means he meets many people. It also gives him a photographic memory. His assertion of possessing a photographic memory was never challenged. That the entire incident lasted more than 45 min. he added that the bedroom where they were tied to the bed of the PW 2 was, in his estimation, about 5M X 5M. That would mean that the assailants were always close enough for him to identify. The circumstances do not appear to illustrate any impediment to a proper identification being made by Gali.

On his part,Sekawungu Peter testified that the assailants broke in at about 3.00 am and stayed at the scene up to 3.50 am. That they put on the lights in the house. He took particular note of the accused who was the youngest of the assailants. That he was always close enough as the room where they were tied to the bed was only 6M x 6M in area. He stated that he was covered with a blanket but could follow the movement of the assailants when they uncovered him to demand for particular items.

The other victim, PW 3 - Kasiita Stella, lived in the guest room outside the house. She stated that she was also dragged into the master bedroom and was the only one who was not tied up. That was because she had just had a baby who was crying during the attack. The assailants wanted her to keep the baby quiet by breastfeeding him. That she was made to sit on the floor of the master bedroom. She testified the accused spoke to her directly when he told her that they were not murderers but thieves. That the electric lights were on the whole time the group was in the master bedroom and she was able to properly identify the accused.

There is nothing to indicate that there was any impediment to a correct identification being made. The possibility of a mistake, even an honest one is greatly diminished because of the circumstances here. There was adequate light. The incident lasted more than 45 min with the victims observing the assailants in very close proximity.

That said there is the additional aspect of the motor vehicle recovered from a parking yard in Kyengera. The accused admits going to the parking yard on the 15th of October 2018 to pick MV UAR 779 D. His explanation was he was not the one who took the car to the yard. On the other hand, PW 5 - Candia Silva, was the owner of Kabs Parking Yard in Kyengera. He stated that on the 11th of October 2018 the accused brought the car but persuaded him that he would return within a short time to register it. He did not return.

The accused denied bringing the car to the parking yard. Instead it was one Serunkuma who sent him to pick the car. The version that accused was not the one who brought the car, was never put to Candia. The accused put great stock on the fact that he did not sign in the book. This however was properly explained. That the accused did not register because he stated he told PW 5 that he would be back shortly to pick the car.

Of the two versions I believed the one of the one PW 5 he was resolute that the accused is the one who brought the car, and again came in to pick it. I therefore find it was the accused who brought the car to the parking yard. I reject the version furnished by the accused as a lie. He had no credible explanation of his possession of the car shortly the robbery.

Evidence of recent possession of stolen property if proved raises a very strong presumption of participation in the stealing, so that if there is no explanation of possession, the evidence is even stronger and more dependable than eye witness identification in a nocturnal event (See **Bogere Moses & Anor Vs Uganda S. C. C. A 1/1997**).

Recent possession also raises the strong presumption that the thief participated in any other offence committed at the time the item was stolen.

In this case the accused was properly identified at the scene. He was found a few days later in possession of the stolen motor vehicle. In the circumstances his alibi is rebutted and he has been placed at the scene of crime.

It is my finding that the accused participated in the commission of this offence.

The assessors advised this court to find the accused person guilty as all the elements of the offence had been proved.

In the result this court finds Bwogi James guilty of the Offence of Aggravated Robbery Contrary to sections 285 and 286 (2) of **the Penal Code Act** and hereby convicts him.

**……………..…..……………………………**

**Michael Elubu**

**Judge**

**4.8.2022**