[2022] UGHCCRD 84

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT ARUA

## $HCT - 08 - CR - SC - 0156 OF 2019$

**UGANDA**

## **VERSUS**

<table>

....................................

1. LUBWAMA VINCENT

...................................... 2. OPAR ABUBAKARI ALI

3. CARLOS M. OOLO

$\mathsf{S}$

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK, JUDGE

## Judgment

The three accused persons to wit; Lubwama Vincent, Opar Abubakari Ali, Carlos M. Oolo were indicted with Count I of Murder Contrary to Sections 188 and 189

of the Penal Code Act and with Count II of Aggravated Robbery contrary to Sections 285 and 286 (2) of the Penal Code Act.

In regard to Count I it was alleged that Lubwama Vincent, Opar Abubakar Ali, Carlos M. Oolo and others still at large, on the 4^th August, 2018 at Kei Road in Nebbi District with malice aforethought murdered Onencan Harrison Pimundu

by shooting. 20

> In regard to Count II it was alleged that Lubwama Vincent, Opar Abubakari Ali, Carlos M. Oolo and others still at large on the 4th August, 2018, at Kei Road in Nebbi District, robbed Oworii John Henry and Jawa Oyen Both Morris of 37,960 US dollars and immediately before and immediately after the said robbery used a

deadly weapon to wit a gun on the said Oworii John Henry and Jawa Oyen Both 25 Morris.

$\mathbf{1}$

The prosecution summarized their case as follows;

$\mathsf{S}$

That on the 4^th August 2018, the deceased and two other people left Paidha for Nebbi aboard a Fuso Truck No. UAP 882F and they had in their possession 37, 960 US Dollars. That at the junction that heads to Uringi Secondary School, a gun man jumped into the road and began shooting at them killing the deceased and injuring the left hand of Jawa Oyen Both Morris. That immediately Police was informed of the incident and AI was arrested because prior to the said incident he had occupied one of the rooms at the complainant's lodge and attempted to break a safe therein. His picture was captured by the CCTV Camera in the lodge but he managed to escape before arrest.

That A1 Lubwama Vincent upon arrest narrated to Police how they executed the said robbery and murder together with A2 and A3. That when A2 was arrested and his phone record inspected, it was found that on the fateful day he had a lot of communication with both A1 and A3 in regard to the said robbery. That when

A2 was arrested, he gave a detailed account of how they executed the incident 15 with both A1 and A3. A3 was subsequently arrested and charged. Identification parades were organized and A1 was identified as the person who had a rifle and shot at the deceased and others on the fateful day.

The three accused persons denied committing both offences in count I and Count II respectively.

The three accused persons all pleaded alibi and when put on their defence all gave sworn evidence. A1 called two witnesses in addition to himself, A2 never called any witness save for himself and so did $\Lambda$ 3.

The Prosecution called 13 witnesses in a bid to prove this case. They also tendered in court a number of exhibits including phone records of various 25 numbers allegedly used by the accused persons during the commission of the offences.

$\mathsf{Z}$

## Representation:

Simon Peter Angumale, State Attorney appeared for the prosecution and Counsel Odama Henry appeared for the 3 accused persons on state brief. Both sides made oral submissions.

#### Burden and standard of proof: $\mathsf{S}$

In all criminal cases, the accused person is presumed to be innocent until proven guilty or pleads guilty. (See: Article 28(3) (e) of the Constitution of the Republic of Uganda, 1995 as amended).

The prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt. This however, does not mean proof beyond a shadow of doubt. 10 And the accused person must not be convicted because he has a weak defence but rather that the prosecution case strongly implicates the accused and there is no other reasonable hypothesis than the fact that the accused person committed the alleged crime. (See: Woolmington v. DPP [1935] A. C 462, Miller v. Minister of Pensions (1947) 2 ALLER 372 at 373). 15

In the case of Uganda v. Dick Ojok, (1992-93) HCB 54; it was held that; in all criminal cases, the duty of proving the guilt of the accused always lies on the prosecution and that duty does not shift to the accused except in a few statutory cases and the standard by which the prosecution must prove the guilt of the accused is beyond reasonable doubt.

In determining a case, the court has to be mindful of the fact that it bears the duty to evaluate all the evidence on record, both of the prosecution and the defence in arriving at its own decision of whether the offence(s) the accused were indicted with have been proved to the required standard.

I will determine the counts, in the order that they were set out. 25

Count 1: Murder contrary to Sections 188 and 189 of the Penal Code Act.

The prosecution must prove the following ingredients of the offence; $\mathbb{R}$

$\overline{3}$

á

- 1. There was death of a human being. - 2. The death was caused unlawfully. - 3. The death was caused with malice aforethought. - 4. That the accused persons directly or indirectly participated in the - commission of the alleged offence(s). - 5. That where there is more than one accused person, there was a common intention among them to execute an unlawful purpose.

# Death of a human being:

$\mathsf{S}$

$10$

The prosecution evidence shows that the victim died. This was not contested by the defence. It was the evidence of PW1 Dr. Kissa Charles Kennedy who carried out the post mortem on the 4^th August, 2018 at Nebbi General Hospital that the cause of death was a gun shot with penetrating chest injury. This evidence was corroborated by the testimony of PW5 Okumu Gabriel the former employer of Onencan who visited the scene of crime where he found the deceased's body and had it taken for medical examination and he was also present during the burial

in Pakwach. This was further confirmed by PWG Oworii John Henry, and PW8 15 Jawa Oyen Both Morris who travelled with the deceased in the same Fuso lorry.

The fact that death is not disputed by the defence, I accordingly, find that this ingredient was proved by the prosecution beyond reasonable doubt.

## Whether the death was caused unlawfully: 20

In Uganda, all homicides are presumed by law to be unlawful except where such deaths are excusable by law itself. (See: Republic v. Gusambiza S/o Wesonga [1958] 15 E. A. C. A 65). According to the post mortem report, Onencan died as a result of a gunshot with a penetrative chest injury. The evidence of PW1, PW5, PW6 and PW8 all confirmed to me that the death of Onencan does not fall in any

of the categories of excusable homicides.

I therefore, find that the death of Onencan was caused by an unlawful act and the prosecution has therefore, proved this ingredient beyond reasonable doubt. $#$

$\overline{4}$

### Whether the death was caused with malice aforethought:

$\overline{5}$

The state under this ingredient relied on the case of R. v. Tubere [1945] 12 **E. A. C. A P. 63** which outlined the circumstances from which malice aforethought can be inferred from as; the manner in which the weapon was used and the type. The State submitted that in this case a gun was used where several bullets were fired and the bullets caught the deceased in the back and killed him instantly. Thus, Malice aforethought was clearly manifested and a gun is a dangerous

Malice aforethought was defined under **Section 191** of the Penal Code Act as:

weapon within the meaning of **Section 286(3)** of the Penal Code Act.

"An intention to cause the death of any person whether such person is the person actually killed or not; or knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not or by a wish that it may not be caused. It has been established by decided cases that; "to prove whether or not the prosecution has proved malice aforethought, court takes into account the circumstances surrounding each particular case".

In the case of **Uganda v. John Ailing [1992] HCB page 80**, it was stated that; you look at the part of the body the injury was inflicted, the type of weapon used, the 20 extent of the body injury and the conduct of the accused person during and after the commission of the offence.

According to the post mortem report in this case, the external injuries found were an entrance wound on the right Posterior chest 137cm from the foot measuring 2 cm, exit wound measuring 5cm, irregularly shaped. On the arm 25 138cm from the foot, left arm entrance about 1 inch and exit 2 inches in diameter. The deceased was also found with internal injuries of a fractured left humerus mid 1/3, penetration through the right lung, and a tattoo at the entrance. These injuries were caused by a gun shot. The deceased's right lung the

part of the body that was injured was such a delicate part of the body, which plays a vital role in the breathing of a human being. Without ability to breath, a human being cannot survive. So, whoever, shot at the deceased had the intention of killing him.

A gun was used in the commission of the offence however, the same was not recovered and exhibited in court. In the case of Uganda v. Komakech Tony alias Mano and 2 Others, HCSC No. 0131/2014, it was held that;

# "There is no burden on the prosecution to prove the nature of the weapon used in inflicting the harm which caused death..."

In the instant case even though the deadly weapon that was used in shooting the 10 deceased was not recovered and exhibited in court, the postmortem report gives a vivid description of the fatal injuries that the deceased suffered due to a gun shot.

I therefore, find that the prosecution did prove this ingredient to the satisfaction of this court.

Whether it is the accused persons or not who committed this offence:

## Submissions for the accused:

Counsel for the accused submitted that the prosecution miserably failed to prove their case beyond reasonable doubt, that all the pieces of evidence relied on are linked to phone tracking, no direct evidence and none of the witnesses show the 20 three accused committing the offence. That according to the evidence of PW6 made in December 2019, he said that he did not know A1 and A3 but only knew A2 because he came from Paidha and did not see him or any of the other accused person during the shooting. And so was PW8's evidence that it did not place any of the accused at the scene of crime. 75

He went on to submit that PW5 narrated to court the loss of the money, the work he does and the shooting and tried to allege that at one point $\Lambda$ 1 attempted to

steal and the CCTV camera at his guest house captured him. However, no evidence of the camera was brought to prove this allegation.

That PW9's evidence was heavily relied on by the prosecution who produced several phone trackings trying to link the accused to the commission of the offence. That the phone numbers alleged to be for the accused persons were $5$ registered in different names and the networking could not place the accused persons at the scene of crime

It was further submitted for the accused persons that A1 on $4/8/2018$ was at his home in Nsumbi zone and took his wife to deliver and brought her back as per DEX4 and DEX5 so, he could not have been at Kei Road and at the same time be in Nansana.

Counsel argued that there were contradictions made by PW9 who said upon tracking that is when he was able to arrest A1 and that at another point he said that it was Michael Kibirige who helped him get to A1. That though the print

outs were produced there was no evidence that A1 had a phone on him at the 15 time of the arrest. That PW9 further contradicted himself when he said that he saw A1 jumping over the fence and then jumped back into his compound, possibly throwing the phone into the pit latrine.

Counsel continued to submit that DW4 and DW5 confirmed that A1's residence did not have a gate therefore, PW9 was lying. That these contradictions go to the 20 root of the case and should be taken seriously.

In regard to the evidence of PW10 Detective Ochwokende, counsel submitted that he allegedly administered the charge and caution statement from A1 which confirmed that A1 confessed to committing the offence. That this evidence was tendered as PEX5. That however, the Charge and Caution statement was taken in

25 English yet throughout the proceedings it was seen that A1 only understood Luganda. And it is not known if the Charge and Caution was translated into Luganda. That his signature was verified by court and what is on the Charge and

Caution is different not to mention that he was thoroughly beaten when taking the Charge and Caution Statement.

In regard to $\Lambda$ 2, it was submitted that on the fateful day he was at his business the time he was alleged to be at Kei Road in Paidha. That the phone trackings of the different network sites were registered from the printouts for example the number that was attached to A1 while in Nansana No. 0706635569 was at Ragem, 0706604171 for A3 was in Kampala area and 0755213079 was around Bondo belonging to A2 on the said 4/8/2018. Therefore, there is no way the accused could have participated in the commission of the offence. That the printouts brought several other players who communicated with the accused 10 persons including Fatuma Muhamad on No. 0705 793571, Dokchen Zulaika on No. 0755213079, Natukunda Scovia on No. 0753536374, other numbers provided by Awekom Medina No. 0752986015, who mentioned people like Ibra,

Mike, in addition to Fatuma. That these key persons should have been brought as witnesses. That the alleged Michael who aided in the location of A1 should have 15 been brought to court. Thus, the prosecution failed to prove its case beyond reasonable doubt. Hence, a loophole that should be resolved in favour of the accused persons. Counsel maintained that this case squarely relied on telephone trackings so these people should have been brought to court for lack of direct evidence. 20

Submissions for the prosecution:

$5$

It was submitted by the State that according to the evidence of PW5, PW6 to PW8, the shooting occurred during broad day light that is around 10:00am and according to PW6, the shooting took place at Goli in Kei in Nebbi District.

PW8 told court that the person on the motorcycle clearly turned to see the 25 vehicle as they passed by and next to a spoilt trailer he slowed down and AI came and fired a bullet at PW8 on the arm and also shot the tyre of the vehicle. PW8 also narrated how his passenger was shot and this was maintained even during cross examination. Thus, the conditions favoring correct identification were present. State quoted the cases of Abdalla Nabulere and 2 Others v. Uganda, 30

Criminal Appeal No. 9 of 1978 and Bogere Moses v. Uganda, Criminal Appeal No. 1 of 1997 in support of his argument. He emphasized that in the instant case the offence occurred at 10:00am and A1 even turned his face to confirm that it was the vehicle they were trailing after he had by passed them during broad day

light. That A2 was identified from Olga guest house in Paidha and therefore was $\mathsf{S}$ well known. Hence, A1 and A2 were properly placed at the scene of crime and therefore the defence of alibi is not available to the accused persons thus, the accused persons operated as accomplices and had common intention within the meaning of Section 20 of the Penal Code Act and Section 19 (b) of the same Act.

$20$

That in the case of Kyalimpa Edward v. Uganda, Criminal Appeal No. 10 of 1995, an accomplice is an associate in the commission of an offence.

Further, that PW9 placed all the accused persons at the scene of crime. That he picked out particular phone numbers that the accused persons were using on the 4/8/2018 and the accused persons deliberately used numbers registered in female names to conceal their identities.

State went on to submit that the charge and caution statements were admitted in court, A1's was very detailed and he narrated how they did meetings on how to execute the offence and that Mzee gave them the gun. PEX5 the affidavit in support of A1's application for bail has the exact same signature as that A1 appended on his charge and Caution statement. And the issue of signatures was cleared in court thus the admission of PEX5.

In regard to A2's charge and caution statement, PW11 told court how he handled the whole process and that the accused all understood English which was evidenced by the proceedings in court where the accused persons would respondent to questions before they would even be translated to the languages 25 they said they understood. That court should find the process of taking the charge and caution statements proper and that is why it admitted the said statements in evidence. State prayed that he contents of these charge and caution statements be looked into by court. It was further submitted for the prosecution that PW7 Medina gave out a number which led to the arrest of the accused persons. That PW9 and PW13 told court how they arrested A1 and A2. A1 was arrested first and was asked to convince a person of a given number which led to the arrest of A2 on assurance of a better deal and that these were his own words to A2 telling him to meet him over a better deal than the one in paidha meaning that he knew the offence.

$\mathsf{S}$

$10$

State noted that a vehicle was tendered in court and marked PEX13 whereof A1 volunteered information that he bought it from the proceeds of the offence of robbery corroborating his participation in the offence. And the car was also voluntarily surrendered.

State also argued that A1's alibi is not available as he said that he used a premio to take his wife to hospital on 4/8/2018 whose complete number plate he could not remember but that it was a UAV series while his wife DW4 told court that the Spacio that was detained by Police is what they used. That $\Lambda$ 2 was placed at the scene of crime by Mike who is still at large and all the women whose names were 15 used to register their sim cards still led to all these men. That, this is a syndicate for the commission of crime and there was a common intention.

Further, that A1 and A2 narrated the role of each accused person in the commission of the crime and a witness saw A1 shooting though in the charge and caution statement he said that he was mercly surveying and mentioned who $20$ gave them the gun and motorcycles showing there was a common intention and all the participants knew what they were doing. Therefore, court should find that the ingredients of the two offences have been proved beyond reasonable doubt and all the accused persons be found guilty and accordingly convicted.

In regard to the inconsistencies as pointed out by the defence, state prayed that 25 they be treated as minor citing the case of Uganda v. Lochomin and Another, H. C. S No. 52 of 2015 held at Moroto, where it was observed that; where there is a difference between evidence given on oath at court and the evidence on a Police statement, court should give priority to the one given in court upon where it was given on oath and can be cross examined. So, the evidence on oath should 30

be given more weight as demeanor can be seen. He also added that if witnesses give evidence which is too consistent court should take it with caution as these witnesses could have been coached on what to say. Thus, room should be given for witness accounts to vary but not on material facts. State prayed that for any variances in the prosecution evidence, then the evidence given on oath be given more consideration.

In rejoinder counsel for the accused submitted that the case of Lochomin (Supra) as cited by the state shows that contradictions should be treated lightly and that statements made at Police should be given less regard and evidence given on oath followed. That each case must be treated independently as per the prevailing 10 circumstances as these cases vary. That in the case of Uganda v. Kivumbi, Criminal Case No. 20 of 2011, it was stated that the accused person should not be convicted due to the weakness of his case but rather on the strength of the prosecution case. That in the instant case the contradictions were not minor and many names were mentioned but these people were not produced in court for the 15 prosecution to prove their case beyond reasonable doubt.

## Analysis of Court:

The accused persons in this case raised the defence of alibi and the law regarding alibi is that when an accused person raises it, he does not have the burden of

proving it but the State assumes the burden of disproving the alibi by bringing 20 the accused persons to the scene of the crime. (See: Sekitoleko v. Uganda [1967] E. A 531). While the accused bears no burden to prove his alibi, case law has clearly established that; "a person who sets up the defence bears the burden to account for so much of their time during the transaction in question, so as to render it impossible to have committed the imputed act(s)". 25

It was the evidence of the prosecution that the incident took place between 8:00am - 9.00am. PW8 told court that when they reached Goli he saw a motorcycle in the side mirror coming with two people on it. That A1 was on the said motorcycle and shot at him twice, shot also the right head lamp and the tyre. That all this happened when he slowed down because of the broken trailer. That

$\mathsf{S}$

he then stopped and the man came with a gun on the passenger's side, he shot the deceased on the arm. So, he opened the door ran and the man shot, he started running while shooting was ongoing. He then rang PW5 his boss and informed him about what had happened. So, according to PW8 he saw A1 during the commission of the offence.

PW.9 No. 558366 D/C. Masaba Gabriel told court that he did the tracking of the phone numbers and participated in the arresting of A1, A2 and A3, that apart from A2 that was using a telephone Number registered in his name, A1 and A3 never used their respective names for the phone numbers they were using and the reason being that they had no National Identity cards.

In respect of circumstantial evidence, this court knows no principle that invariably before basing a conviction of circumstantial evidence, there must be corroboration. In fact in the Court of Appeal in the case of Hon. Akbar Hussein Godi v. Uganda, Crim. Appeal No. 0062/2011(unreported) made a reinstatement of the principle that when properly handled, circumstantial 15 evidence may be the best evidence to prove a preposition. This court stated as follows in the Godi case;

> "Thus the appellant was convicted on circumstantial evidence. We appreciate this evidence to be in the nature of a series of circumstances leading to the inference or conclusion of guilt when direct evidence is not available. It is evidence which although not directly establishing the existence of the facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or in relation to them. It is evidence, at times, regarded to be of a higher probative value than direct evidence, which may be perjured or mistaken.

A Kenyan court has noted that:

$\mathsf{S}$

$10$

"Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination, is capable of proving a preposition with the accuracy of mathematics. It is no

## derogation of evidence to say that it is circumstantial". (See: High Court of Kenya at Nairobi Criminal Case No.55 of 2006: Republic Vs Thomas Gilbert Chocmo Ndeley.)"

According to PW9 Masaba Gabriel, he stated that when he did the printout he was able to identify A1 through somebody called Michael Kibirige who was a $\mathsf{S}$ neighbour to $\Lambda$ 1 and one of the frequently called numbers by $\Lambda$ 1 and that was how A1 was arrested at his home in Nansana. That A1 later called A2 under the guise that there was another business deal better than the one they had in Paidha. That A2 jumped onto a Boda boda from Arua Park and came to Nansana near the junction in Nabweru where he was arrested from. 10

He added that during interrogation A1 mentioned the other people who were involved in the commission of this offence and also mentioned A3. PW9 gave a detailed explanation of the phone tracking records which I will not reproduce. He categorically told court that no phone was recovered during the arrest of A1,

- the only phones that were taken from his home as exhibits had no sim cards. The 15 line that was used to track A1 was No. 0706635569 and was not found with him at his home and he suspected that while A1 was trying to escape he threw or the phone fell in the nearby open toilet. A1 however, said that that number belonged to him yet it was found registered in the name of Ronald Kinene. - That A1 and A3 used numbers that were not registered in their names and it was 20 only A2 Opar who had phone numbers registered in his name.

PW9 outlined the following numbers that were being used by the accused persons and their counterparts during the commission of the offence and whose names they were registered under; 0755213079 registered under the name of Zulaika Dokchen used by Mike and this was confirmed by A1; 0757935971 25 registered in the name of Fatuma Muhamad was communicating with the No. 0706604171 which was in Nansana registered in the name of Zawede Sarah a wife to A3; 0753536374 registered in the name of Natukunda Scovia. That however, the phone record showed that the No. 0706604171 allegedly for A3 was in Kampala on 4/8/2018 when the offence was being committed and not in

Paidha at the scene of crime. PW9 elaborated on why the No. 0706604171 was linked to the commission reason being that the said number had been in touch with another number that is No. 0757935971 on 28/7/2018 a few days before the commission of the offence and this number was put at the scene of crime on $4/8/2018.$

$\mathsf{S}$

Further, PW9 told court that 0757935971 registered in the name of Zawede Sarah was in Nansana ku ma store on 28/7/2018 while communicating with 0755213079 registered in the name of Zulaika Dokchen which later went off but its last location was Paidha on 4/8/2018.

- PW9 went on to tell court that No. 0706635569 was in Nebbi and Paidha from 10 8:01 am to 8:57am and this is the number that A1 had and was using to talk to No. 0755213079 under the name of Zulaika Dokchen being used by Mike. That No. 0751072212 belonging to A2 was in Paidha on 4/8/2018 at 21:00hours though had been off in the morning hours, so, was 0754934215. That No. 0757935971 communicated with No. 0755213079 and No. 0706635569 $15$ - which were all at the scene of crime on $4/8/2018$ .

PW5 in his testimony told court that A1 was caught by the CCTV camera while he tried to break into his safe on 3/8/2018 much as the CCTV camera was not brought to court.

- PW13 in her testimony confirmed that PW9 was present during the arrest of A1 $20$ as she was also present and they recovered among others, some money at his home, two receipts of a spacio Light blue in Colour that was said to have been bought from the proceeds of the offence. PW13 was the officer in charge of searching A1's house. - DW1 in his testimony stated that on the $4/8/2018$ he was at home together with his wife who went in labour and he took her to the hospital. That on reaching the hospital he left her there and at about midday his wife delivered and she called him at 4:00pm when she had been discharged. $\overline{A}$

DW4 the wife to DW1 confirmed to court that she was indeed in labour on 4/8/2018 whereof DW1 took her to Salama Memorial Medical Centre in Gganda found in Nansana. She tendered in court the discharge form from the said Medical centre. This witness however, contradicted DW1's evidence in

- regard to which vehicle she was transported in to go hospital while she said that $\mathsf{S}$ she was taken in the light blue Spacio detained at Police, DW1 stated that he used a premio. On cross examination she stated that she could actually not remember the vehicle that was used as she was in active labour at the time. However, this was all cooked up between DW1 and DW4 because the discharge form tendered in court marked as DEX5 was dated 04/8/2018 whereas DEX4 the ultra sound - 10 report as tendered in court by DW4 was dated 10/08/2018, meaning that DW4 was still with child on 04/8/2018 when the offence was committed and DW1 was not with her at their home. I also took the liberty to call the Medical Centre on No. 0782 902843 to confirm if indeed DW4 delivered from there on 4/8/2018. Whereas they confirmed that DW4 delivered from there, it was on a 15 - different date of $28/8/2018$ as per their records and not $4/8/2018$ .

DW1 in his testimony told court that he travels a lot out of the country for work purposes to countries like, Kenya, Rwanda, Sudan, Congo and Zimbabwe and his passport is even almost used up. His wife DW4 however, said that DW1 has never travelled out of the country for any work related reasons. These are a grave

20 contradictions that touch the root of the case and this court cannot ignore.

I find that DW4 was an untruthful witness trying to cover up for the wrong doings of DW1 her husband who was present during the commission of the offence.

DW2 in his testimony stated that he was in Arua on 4/8/2018 and that he was $25$ only being implicated because of the land transaction that his family had with PW5.

DW3 relied on the tracking records that showed that the phone number he was using was in Nansana on 4/8/2018 and not at Paidha so; he told court that he 一切

was not at the scene of crime on the fateful day. However, he had been placed at the scene of crime by $\Lambda$ 1 and $\Lambda$ 2 in their charge and caution statements.

PW8 ably identified A1 at the scene of crime as the person who shot at him and the occupants of the Fuso lorry and that this happened between 8:00 am and 9:00am so there was sufficient light to identify their attackers. PW8 was an eyewitness in this case who identified A1 at the scene of crime and A1 is the one that led to the arrest of A2 and A3.

PW7 is the one that provided police with the number that was used to track down A1 and said that she was a girlfriend to Ibra who was also found to be Medi who is still at a large.

PW9 gave consistent, cogent and chronological evidence in regard to the tracking of the numbers that were used by the accused persons and how they were all linked to the commission of the crime.

The accused persons did have a common intention to commit this offence as it can be seen that they had been in constant communication at various times and 15 dates amongst themselves until the mission was executed.

I therefore, find that the prosecution was able to prove this ingredient beyond reasonable doubt by placing all the accused persons at the scene of the crime.

I hereby, agree with the assessor and find the three accused persons guilty. The three accused persons are accordingly convicted of the offence of Murder $20$ contrary to Sections 188 and 189 of Penal Code Act.

Count II: Aggravated Robbery contrary to Sections 285 and 286 (2) of the Penal Code Act.

The prosecution has the burden to prove their case against the accused persons beyond reasonable doubt, the burden does not shift to the accused persons and $25$ the accused persons can only be convicted on the strength of the prosecution case and not because of the weakness of the defence case.

Prosecution under this offence must prove the following ingredients:-

- 1. That there was theft of property belonging to another person. - 2. There was use of violence. - 3. There was threat to use a deadly weapon or that there was use of a deadly - weapon or that the perpetrators caused grievous harm to the victims. - 4. That it is accused persons who robbed the victims or participated in the robbery. - 5. Where there is more than one accused person, common intention has to be proved.

## Theft: 10

$\mathsf{S}$

According to Section 254 of the Penal Code Act, theft is committed when a person fraudulently or without claim of right takes anything capable of being stolen. Therefore, for this ingredient, there must be proof of what amounts in law to an asportation that is carrying away of the property of the complainant without his or her consent or lawful claim of right. The property stolen in this

15 case is alleged to be money worth 37,960 US dollars.

It was submitted for the prosecution that the prosecution witnesses told court that the value of the money was 37,960 US Dollars which is property capable of being stolen, and the complainant PW5 is a business man who on a weekly basis banks this money with Stanbic Bank.

PW5 Okumu Gabriel testified that he counted 37,960 dollars and gave it to his worker PW6, who put it in the bag and was robbed of the same on the way to the bank while in Goli, Nebbi District which was later corroborated by the testimony of PW6 who was the worker of PW5 dealing in forex exchange. That the said money was robbed on the 4^th of August 2018, the money was in the bag that was taken by the assailant during the course of the shooting. PW8 further corroborated this evidence as the driver on that fateful day, and who was also shot at and that the money was taken.


With the above evidence alone leaving the evidence of PW10 and PW11 regarding the charge and caution statements, I find that the prosecution proved beyond reasonable doubt that money worth 37,960 US dollars was stolen on the 4^th August 2018.

## Whether there was use of violence: $5$

Violence according to Webster's Collegiate Dictionary is defined as; "Force exerted so as to injure or abuse".

For this ingredient the prosecution must prove the use or threat to use some force to overcome the actual or perceived resistance of the victim. Section 286 (3) of

the Penal Code Act provides that; ... where at the time of or immediately before, $10$ or immediately after the time of robbery, an offender is in possession of a deadly weapon..."

It was the prosecution evidence especially that of PW6 and PW8 who told court that during the commission of the offence the perpetrators had a gun and shot at

them. PW8 was even shot on the arm and one of their counter parts Onencan 15 Harrison died on the spot. The assailants were therefore armed ready to do whatever it took to complete their mission.

PW6's testimony as the one who carried the money in the bag in the fuso lorry, was that the two people who came on the motorcycle followed them when they

- reached Goli, they found a broken trailer and the truck driver slowed down at 20 that junction. Harrison was killed in the process and the driver sustained injuries, money was taken in the process. This was further confirmed by PW8 who drove the vehicle. And upon carrying out examination of the deceased the cause death was found to be a gunshot as evidenced by PEX1. - I therefore, find that the prosecution proved this ingredient beyond reasonable 25 doubt that immediately before, during or after theft of the money mentioned there was use of violence against the victims at the time of the commission of the $\#$ robbery. Whether there was use of a deadly weapon or that the perpetrators caused grievous harm to the victims:

A deadly weapon is defined under section 286 (3) of the Penal Code Act as; any instrument made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes is likely to cause death.

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PW8 the driver of the FUSO lorry told court that he saw the assailant who carried the gun and who shot at them being A1. Indeed Onencan Harrison died in the process as per PEX1 and the cause of his death being gun shot.

Although the gun was not recovered or tendered in court as evidence, according to the case of E. Sentongo and P. Sebugwawo v. Uganda [1975] HCB at page 239, $10$ it was held that when the prosecution fails to produce the instrument used in committing the offence during trial, a careful description of the instrument will suffice to enable court decide whether the weapon was lethal or not.

In the instant case the occupants of the FUSO lorry that is PW6, PW8 and the deceased were shot at during the commission of the offence which shooting led 15 to death. It was the evidence of PW8 that a gun was used and he was also shot on the arm. It is clear that a gun was involved in the commission of the offence.

I therefore, find that the prosecution proved to the satisfaction of this court that the perpetrators were armed and there was use of deadly weapon on the victims much as it was not tendered in court.

Whether the accused persons participated in the commission of the offence and whether there was a common intention to commit all the two offences:

In determining these last ingredients I am mindful of the fact that an accused person does not have to prove his innocence and that by puting forward a defence like alibi or any other, an accused does not thereby assume the burden of proving the defence except in a few exceptional cases provided for by the law.

It is up to the prosecution to disprove the defences of the accused persons by adducing evidence that shows that, despite the defence(s), the offence(s)

was/were committed and was/were committed by the accused persons. (See: Kato v. Uganda, [2002] 1 E. A 101).

In regard to participation, prosecution must prove this through adducing direct or circumstantial evidence placing the accused persons at the scene of crime during the perpetration of the offence.

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In their defence the accused persons in this case denied any participation. To rebut that defence, the prosecution relied on the evidence of identification of PW8 who said he saw A1 with a gun and shot at them. The identification in this case was proper because PW8 told court that the offence was committed between 8:00am - 9:00am so there was sufficient light to see the assailants who by passed

the lorry and even looked back as a way to confirm who their targets were.

The prosecution also relied on circumstantial evidence as adduced by PW9 Masaba Gabriel who did the phone tracking and participated in the arrest of A1, A2 and A3 and he gave a detailed recount of how the three accused were placed

at the scene of crime. PW9's evidence has already been analyzed under Count I 15 which I will not reproduce here under.

PW9's evidence was corroborated by PW13 who told court that she conducted the search at A1's home when PW9 had gone to effect the arrest. That A1 did sign on the search certificate voluntarily which was confirmed by DW5, the local

leader that was present during the search and arrest of A1. DW5, maintained 20 that A1 voluntarily signed the search certificate in his presence and he too signed on the search certificate.

PW13 told court that during their search they recovered, a number of items which included two receipts of a spacio, that was recovered at the AI's neighbour's home. That the car was handed over by A1 and he also gave them 25 the key to the said vehicle. That A1 intimated to the Police Officers that he bought the said car from the proceeds of the commission of the offence. The said car was tendered in court and marked as PEX13.


DW1 in his evidence told court that on 4/8/2018 he was at home and his wife got contractions and he took her to hospital to deliver. DW1 also told court that he was tortured while making the charge and caution statement and that he was made to thumb print. This evidence was untruthful as PW10 told court that A1

was not forced to make the charge and caution statement and when he tried to $\mathsf{S}$ deny his signature, it was evident that the same signature was appended on the search certificate, and his affidavit in support of the application for bail therefore, this witness did not thumb print as he wants court to believe. The signature of DW1 was also confirmed by his own witness DW5 who saw him sign on the search certificate during his arrest. 10

The defence challenged the evidence of PW9 and PW13 witnesses on the basis that they gave contradictory evidence in court from the Police statements that they made when still fresh.

This court is mindful of the principle of law as laid down in Ruhweza Antonio v. Uganda, CR. APP. No. 07 of 2001 that; 15

> "Where discrepancies or contradictions are found in evidence to be serious or grave unless explained, will result in the evidence being rejected. However, minor inconsistencies will be ignored unless they point to deliberate untruthfulness."

- It is trite law that; Police statements are not made under oath. And court will $20$ always prefer the witnesses' evidence which is tested by cross examination. (See: Lawrence Mwayi & Others v. Uganda, CR. APP. No. 162 of 2001 which quoted with approval the case of Chemonges Fred v. Uganda, S. C. C. R APP. No. 12 of 2001). - I do agree with the submissions for the prosecution that court has to be cautious $\overline{25}$ of witnesses who do give a similar recount of the events as this would indicate that they had been coached. It is also an established principle of case law that no two or more witnesses can give exactly the same version of events of what

transpired in a matter. This, court therefore, choses to rely on the evidence given under oath in this matter.

After careful evaluation of all the prosecution and defence evidence in regard to the ingredients of the offence the accused are charged with, I find that the prosecution has proved beyond reasonable doubt, that the commission of this offence was well planned by A1, A2, A3 and others still at large.

## Common intention:

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Under Section 19 of the Penal Code Act it is provided that;

- 1. When an offence is committed each of the following persons is deemed to - have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it. - a. Every person who actually does the act or makes the omission which constitutes the offence; - b. Every person who does or omits to do any act for the purpose of aiding another person to commit the offence; - c. Every person who aids or abets another person in committing the offence.

The evidence of the prosecution places all the three accused persons under that section considering the roles that each played in the commission of the two offences. The commission of the offences did not only include the three accused 20 indicating that it was a carefully hatched and executed plan meaning there was a common intention to execute an unlawful purpose.

Under **Section 20** of the Penal Code Act it is provided that;

"Where two or more persons form a common intention to prosecute an unlawful purpose and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of that purpose, each of them is deemed to have committed the offence."(See: Isingoma v. Uganda [1986-89] 1 E. A 155). $\forall$

I hereby find that all the accused persons had a common intention inorder to execute their mission and fulfil it. For all the reasons set out in this judgment and in agreement with the assessor, I accordingly convict each accused person as indicted for the offence of Aggravated Robbery contrary to Sections 285 & 286 (2) of the Penal Code Act.

In conclusion, the prosecution proved all the ingredients of Murder under Count I and Aggravated Robbery under Count II against $\Lambda$ 1, $\Lambda$ 2, $\Lambda$ 3 and others at large. I accordingly, find them guilty and convict them on both counts.

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OYUKO ANTHONY OJOK

JUDGE

19/07/2022

## SENTENCING AND REASON FOR SENTENCE:

The convicts were found guilt of the offence of Murder contrary to Sections 188 15 and 189 of the Penal Code Act after full trial on count I and they were also found guilt on count II for Aggravated Robbery contrary to Sections 285 & 286 (2) of Penal Code Act.

In his submissions on sentencing, the State Attorney prayed for a death sentence on both counts for the following reasons;

That although, he had no previous criminal records for all the three convicts, it was probably because of poor record keeping. According, to the State Attorney, life is very precious and ought to be respected. That Onencan's life was taken away in a very primitive manner motivated by the greed of cash or material gain.

That in this case the killer gun is not yet recovered which poses a very big risk to 25 the society. That the other parties are still at large with the killer gun and that any time, anyone can fall victim to them. He cited the sentencing guidelines

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specifically paragraph 5 that states that; the purpose of sentencing is to promote respect for the law inorder to maintain just, peaceful and safe society inorder to prevent crime. That still under paragraph 5 (2) Court shall pass a sentence aimed at denouncing unlawful conduct, deter the convict from committing other offences, prevent more would be offenders from the society where necessary.

He mentioned paragraph 20 on factors aggravating the death sentence such as; the degree of injury and that in this case there was a very carefully planned mission. That the convicts attempted to conceal their identities in order to escape imprisonment through the use of sim cards registered in different names from

- theirs maintaining that they had no National Identity cards to register their lines 10 in their own names. That the impact of the death on the relatives is very great. That there is no spare in life and Onencan will never come back until we meet him in heaven. He concluded that Court should look at paragraphs 17 & 18 of the sentencing guidelines regarding death sentence. That the three convicts should - be given the maximum of death penalty or in the alternative imprisonment for 15 life. He quoted the case of Bukenya v. Uganda, Court of AppealCrim. Appeal No. 0051/2007, he also prayed that since PW.5 lost his money and the proceeds were used by Convict one to buy a car, the car should be surrendered back to PW.5. - In mitigation the defence counsel submitted that the convicts have no previous 20 records, they are remorseful, they have undergone torture, they are family men with children and convict one has his youngest child in court with the mother who is not employed and has other defendants that rely on him. Convict one is sickly of hypertension, hepatitis B, chronic ulcers and diabetes whose medical notes had been tendered in court before while applying for bail. 25

That convict two, Opar is a family man though his family did not attend court save for his mother but also has other dependents with the elderly mother having other sicknesses.

That convict three is a family man with responsibilities although the family members are not in court.

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That court should also take into account the period spent on remand of all the convicts. And the car should not be taken away from convict one and prayed for leniency.

The offences of Murder and Aggravated Robbery attract a maximum penalty of death as provided for under Sections 189 & 286 (2) of the Penal Code Act. However, this represents the maximum sentence which is usually reserved for the worst cases of Murder and Aggravated Robbery. A gun was used in the commission of the robbery and Onencan in the process of the robbery was killed. Much as I somehow agree with the State Attorney that cases of this nature should

be discouraged and proper punishment given to perpetrators of it I will however, 10 not give a death sentence though I will give something close to it.

Where the death penalty is not imposed the starting point in the determination of custodial sentences for the offences of Murder, Aggravated Robbery, Rape, Aggravated Defilement has been prescribed by item 1 of part 1 of the sentencing

ranges - sentencing range in capital offences of the third schedule of The 15 Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 as 35 years. The sentencing guidelines however, have to be applied bearing in mind the past precedents of court in decisions where the facts have a resemblance with the case under trial. This was so in the case of Ninsiima

## v. Uganda, Crim. C. A. Criminal Appeal No. 180/2010. 20

And for that reason I have taken into account the current sentencing practices in relation to cases of this nature, I have also considered the case of Bukenya (Supra) as cited by the learned State Attorney where the convict was given a sentence of life imprisonment when he was 36 years old. I have also considered

the case of Byaruhanga v. Uganda, C. A Crim. Appeal No. 144/2007 where the 25 Court of Appeal in its judgment considered the sentence of 20 years imprisonment as reformatory for a 29 year old convict.

Taking into account both mitigation and aggravating factors, taking into account all cases of similar nature, taking into account the sentencing guidelines, I will also take into consideration the period spent by the convicts on remand.

From the facts of this case, the convicts all demonstrated no remorsefulness at all from the beginning upto the end. This was a premeditated and planned move by the convicts and I believe this is not the first time the convicts are doing it that is use of violence during the commission of other offences. I take into account the fact that all the convicts have families although I am not seeing the families of

Convict two and three.

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I find the sentence of 30 years imprisonment appropriate for both Count I of Murder contrary to Section 189 of the Penal Code Act and Count II of Aggravated Robbery contrary to Section 286 (2) of the Penal Code Act less the period spent on remand.

For convict one and two a period of 3 years, 18 months and 17 days spent on remand to be reduced from the 30 years sentence leaving them to spend a period of 26 years, 3 months and 13 days in prison.

For convict three who has spent on remand 3 years, 6 months and 23 days once deducted leaves him with 26 years, 5 months and 2 days to spend in prison.

I also order that the vehicle in police custody be handed over to PW.5 together with all the documentation pertaining to it.

Also, let other accused persons on the run be pursued and brought to book.

The convicts are advised that they have a right of Appeal against both the conviction and sentence within a period of 14 days from today.

Both sentences are to run concurrently for all the three convicts.

## OYUKO ANTHONY OJOK

JUDGE 25

19/07/2022