[2023] UGHCCRD 94

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL DIVISION CRIMINAL SESSION CASE NO.0863 OF 2020 UGANDA--------------------------------------------------PROSECUTION VERSUS 1. DUMBA STEWART**

### **BEFORE HON: JUSTICE ISAAC MUWATA**

**2. ZIWA JUMA--------------------------------------------ACCUSSED**

### **JUDGEMENT**

The accused persons are charged with the offense of aggravated robbery contrary to section 285 and 286(2) of the Penal Code Act

It is alleged that the accused persons and others at large on the 1st day of May 2020 at Lugoba Zone Nabweru Division in Wakiso District robbed Kiyaga Gonzaga Gonza of one Samsung Galaxy Mobile Phone valued at approximately four hundred thousand shillings (400,000/=) and at immediately before or immediately after the time of the said robbery used a deadly weapon to wit a knife and assaulted the said Kiyaga Gonzaga, thereby causing grievous bodily harm.

At the trial, the accused persons were represented by Counsel Selwanga Geoffrey while Mr. Amerit Timothy was for the prosecution.

## **Ingredients of the offence**

- 1. Theft of property belonging to another. - 2. Use or threat of use of violence at, before or after the theft or that the accused caused grievous harm to the victim.

- 3. Use of deadly weapon. - 4. The accused participated in commission of the robbery.

The burden of proof in criminal cases lies on the prosecution to prove the offence against the accused **beyond reasonable doubt**. That means that regardless of the defence raised by the accused person, the accused person can only be convicted on the strength of the prosecution case.

#### **Theft of property**

Theft occurs when a person fraudulently and with intent to deprive the owner of a thing capable of being stolen takes that thing from the owner without a claim of right. See: **Section 254 (1) of the Penal Code Act.**

To prove theft, the prosecution relied on the evidence of PW1 Kiyaga Gonzaga Gonza who testified that that two boys had snatched a phone from her daughter in his presence. This fact was equally not disputed by the defence. Section 133 of the Evidence Act is to the effect that no particular number of witnesses shall be required for proof of any fact. I therefore find that theft was proved beyond reasonable doubt

# **Use or threat of use of violence at, before or after the theft or that the accused caused grievous harm to the victim**.

The prosecution evidence in this respect was that the victim was physically assaulted and he sustained grievous harm on his body. PW1 testified that A2 (Ziwa Juma) pulled out a knife and tried to stab him on the neck but in trying to dodge it caught his left ear severely injuring him. It was his evidence that Dumba then threw a stone at him and hit him in the upper

and lower jaw which left him unconscious for some time. It also his evidence that he was admitted at case hospital at Buganda road where he was operated on both jaws

PW2 also told court that he found PW1 the victim bleeding from the ear.

The fact that the victim suffered grievous harm has also not been contested by the defence. Although the alleged knife referred to by PW1 in his testimony was never recovered or exhibited in court the injuries inflicted upon the victim resulted into grievous harm to the victim which is a necessary ingredient to prove the alleged offence.

I find that the prosecution has proved to the required standard that, the perpetrators occasioned grievous harm to the victim.

#### **Participation of the accused persons**

Lastly, the prosecution is required to prove beyond reasonable doubt that it is the accused persons who participated in the aggravated robbery. This ingredient is satisfied by adducing evidence, direct or circumstantial, showing that the accused as the perpetrator or a participant in the perpetration of the offence

PW1, the victim told court that he knew the accused persons because they attacked him on the 1/5/2020.

PW2 a neighbour also testified that he knows the accused persons as the ones who attacked Ssalongo Gonzaga and injured him. She told court that on the 1/5/2020 at about 6pm she heard an alarm coming from the victim's place.

PW3, the investigating officer similarly testified that he knew the accused persons as part of the stubborn gangs in the area.

In their defence, the accused persons raised the defence of alibi

DW1, told court that on the fateful day the victim was allegedly attacked, he at his place in Katooke where he works as a potter at a construction site. He also stated that in his evidence that he returned from work that day at around 8:00pm and stayed home whole night.

DW2 stated that in his evidence that on the fateful day he was in Wandegeya during day and later returned to his place at around 6:00pm

By setting up the defense of alibi, the accused persons do not assume the burden of proving the alibi**.** The duty lies on the prosecution to disprove a defense of alibi and place the accused persons at the scene of crime as the perpetrator of the offence**. See: Festo Androa Asenua and another**

#### **v. Uganda, S. C. Criminal Appeal No.1 of 1998**

To disprove the defense of alibi raised by the accused persons, the prosecution relied on the evidence of PW1 and PW2 who clearly identified the accused persons. The evidence of correct identification destroys accused persons purported alibi's. I have compared the alibi by the accused persons and the evidence by the prosecution and find that accused persons were placed at the crime scene.

A2 was clearly identified by PW1 as the one who pulled out a knife and tried to stab him on the neck. A1 was identified by PW as the one who hit

the victim on the upper and lower jaw. PW2 identified A1 as the one who was holding the victim by the neck. This evidence was not rebutted.

In view of the above I find that the prosecution has discharged its burden of disproving the alibi raised by A1 and A2 and rightly placed them at the crime scene.

The prosecution evidence points to the guilt of the accused, the offence of aggravated robbery has been proved beyond reasonable doubt. They are hereby convicted.

I so find.

## **JUDGE**

**23/03/2023**