[1994] UGHC 80

dustice t. M. S. Egondo-Nien

VIL REFUBBLO ON UTATRA

IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL STESION CASE NO. 74/93 AT WHIS SESSION HOLDEN AT MBARARA

**UGATIDA** PROSECUTION $\begin{smallmatrix} & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 & 0 &$

VS.

MUGUNYA ULIODA MABORE SERRESRESSES SESSES SESSES SES **ACCUSED** THE HOT. FR. AG. JUSTICE N. S. JUGAYIZI BEFORE:

## RULING

The accused herein (Mugumya Elioda Kabote) was on the 21st day of June, 1994, indicted on two counts of robbery Contrary to sections 272 and 273(2) of the Penal Code.

The particulars of the offence in Count 1 alleged that the accused and others still at large on the 12th day of July, 1990, at Kyanyamutungu Village, Bushenyi District, robbed HAJI NURU TIBEKITCA of a Radio Cassette, Cash amounting to 35,000and other household properties, and immediately before or immediately after the robbery, used a deadly weapon, to wit a gun on the said Haji Muru Tibekinga.

The particulars of the offence in Count 11 alleged that the said accused and others still at large on the 12th day of July, 1990, at Lyanyamutunga in Emshenyi District robbed ZAAMU TASUMBA of a wrist watch, three travelling bags, 3 blankets, 6 curtains and other household properties, and at the time of the robbery, threatened to use a deadly weapon, to wit a gun on the said ZAANU KASUTBA.

The accused demied the offences in both counts, whereupon the prosecution led by Mr. Vagona (State Attorney) called four witnesses for the purpose of catablishing its case against the accuseã.

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The first of the said witnesses was Haji <ITu.ru> Tibekinga who is a Muslim cultivator aged ⁶³ years old. He cow.es from Kyanyamutur.ga village in Bushenyi District,

Tn brief, PW1 told court that on the 12th of July, 1990, at around 9-30 ptm j,tk • ' ^h hi. riily end a nei ,hbou>. c< Lied Israel heiumu, ... ny were attacked by robbers. lie Jii?/. :cene took place ': the kitenon /here the • lamily was seated. cabin; choir ,

At this point, an assailant pushed ?.he kitchen door and ordered the witness, his family and neighbour to lie down. At first, 'there was some hesitation on their part to obey the assailant's orders, but when another assailant outside fired a gtm, PV/1 and the rest complied with the orders given to them.

Soon thereafter, two assailants who weie 'wielding pangas ⁱ dame in and started beating the witness and other.; with pangas. They asked for PH's dgughtex: colled. Tcai. PV'1 choked her to 'liem an;. the a^sa^lants took her *1-.* ;c . ^&gt; r..in hours.

Aftc:r oo'./. C':'.!⁷ ore oi .^k ••; .. .. ^u ..ui niu '.•.■» Lie k' 'cben and tool; he w. or. . Lo : .. io noise. 0 ⁱ roe cling his bed-room, the witness found his daughter Zarnu. The assailant told the witness to lie down. Ke began demanding money ?rom the witness and assaulting him. The 'witness directed the assailant to UG-S. 35,700/= which was lying in a mattress, but Zamu advised that she had already taken out that money.

The assailant then wanted to get the television set or Itne money obtained from its sale, but the 'witness advised that none o.c Llr u.-o >.ore avail, le.

its door and rn.:i oi t t zo:; -¹ • io c: .f of hif nei'hbour'^s 1; .. ,,. ... Ac be (>oi.so, the assailants fired a \*-un in liis direction.

returned home and discovered that the assailant: .ci cass speakers thr^e e blanke ts Later vr, bhe vwc j\_oud three wrist watches and three hand-bags

⁷ \_».r mow he accuser ⁰³ \*C CO- 3'1 lest saw them in -Itarar-a.. ^I

! 1 cultivator ⁷ years She com Kyanyamuti?ai;gu village in Pushenyi

PW21s story she was able to the'Accused and c acre was light from a lantern that one spent with the attackers abbtwo ni the assailants, the,. ■:c -;iiG.e related, riov/ever, she added that on her part had e

h. G 'The him i side the room had kept some things which she bought in Kampala These things ' included and carpets ■lien the accused saw that they (the assailants) were not 300,01)0/ She recounted that after of the kitchen a four month's which she did. PW2 carried a lamp kitchen episode, she was old baby. She led the accused to a by the interested in them. All they banted was a television set and ⁹ he told the

tc the ac "L^eithe*^t* ha^d th^e television ncr th<; wlio was now ^start^e , ,i ^j ^j, UU.( '• 1 ...ally r panga mor. -in. ^j.- ^W pulled tfe? I^&gt; .ttress and gave !• CtIr--' or ■. cae ^v sum of UGS. 35 to to

Later, PW1 was also led into this room. Honey was demanded from him and he was assaulted.

After sometime, the assailants went out of PYfl-'s room and PW1 locked them out and jumped through the window and ran away leaving the witness behind.

The robbers made off with ^a number of things including three p:| ^I watches.

Eventually, an alarm was raised and a number of people answered it. The matter was then reported to the police.

Subsequent^, the police arrested the a.ccused and invited this witness to attend an i dentification ^p arade where the accused and others, she did not know before, were lined up. The witness was invited by PW3 and PW4 to pick her assailant out of the said parade and in turn she picked out the Accused.

In cross-examination PW2 revealed that she was under great fear during the attack. She was therefore not sure how long the attack lasted. She confessed that a short time could have appeared long, since she was under torture. She further denied having mentioned the name of the Accused to the police. Ebe revealed that she did net come to know the accused' s name until the accused had been arrested. In fact she knew the said name 1-|- years after the incident.

The third prosecution witness was Detective Assistant Inspector of Police Gumisiriza Karinkiza who testified that on 12th July, 1990? when he was still attached to Pwentuha Police Station, lie (received a report of robbery from one Sdirisa Kanzira. This was around 9\*00 - 10.00 p.m. The witness went to the scene of crime where he found empty toilets. | ■! !

P72 related to him the incident and pointed out that although she did not Know the- names of the fettackcrs she had uecognizod two of them during the attack.

Subsequently, when Corporal Mugisha arrested the accused and arranged an identification parade which the witness had the opportunity of attending, P12 picked out the accused as one of her attackers. However the said arade was hurriedly arranged because the police at Ewentuha did not want to keep the a coused in the Police Station for long since they did not have strong cells.

This witness also revealed that the police at Rwentuhe did the preliminary investigation in this case and that PW2 used to visit Rwentuha police station every day.

The fourth prosecution witness was No. 8253, Corporal Mugisha who is fourty two years old and was attached to Rwentuha police station in 1990.

This witness related to court that on 18th of July, 1990, he went to Matejo village and arrested the accused whom he found washing clothes at the well near his home. He took him to Rwening police station where he was charged with robbery.

This witness then arranged for an identification parade in which the accused was placed with six others of the same age and general appearance. These six others were picked from Rwentuha Trading Centre. FW2 was invited to pick out her assailant from the said parade whereupon she picked out the accused.

Later this witness escorted the accused to Bushenyi Police Station and handed him over to the authorities there. The witness revealed that the said Warade was done in a hurry and it. took ten to twenly minutes to prepare. This was so, because the witness wanted to take the accused to Bushenyi Police Station for safe custody since there were no strong cells at Rwentuha Police Station.

This witness also disclosed that PW2 was operating a business at Rwentuha Trading Centre and that she came from that place to attend the identification parade in issue.

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In cross-examination, PW4 denied that PV/2 was coming to Rwentuha Police every day. He also insisted that the reason why ho had arrested the accused was because PW2 mentioned the accused by name before the said arrest.

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After the evidence of the said witnesses, the prosecution closed its case. In turn, Mr. Zehurikiza (counsel for the accused) submitted a no-case to answer.

Despite the fact that Mr. Zehurikize conceded that two of the essential elements of the offence in issue (that is to say, the robbery itself; and the use of a deadly weapon i.e. a gun) had been proved, he was of the opinion that another essential ingredient of the offence, that is to say, that the accused participated in the offences in issue, was not proved.

He argued that the only direct evidence tying the accused to the offences herein,- was that of PY/2 which was to the effect that she saw the accused at the time of the attack and was able to recognize him because there was light from a lantern at the time.

However, as can be seen, counsel for the accusedcontinned, , the attack was ^a savage one. It took place at night and PW2 did not know the moused before.

; In such circumstances, the possibility of mistake could not be ruled out on the part of PY/2.

, Mr. Zehurikize pointed out that in order to be able to use PW2's evidence to pin down the accused, that evidence needed to be corroborated by some other independent evidence. He cited the case of Roria v. Republic (1967) H. A. 583.

Mr. Zehurikize then went on to say that, that other independent evidence now required would have been available in the form of the results of the identification parade attended by PW2 at the Police ¹ ⁱ'-'i ⁱ Station at Rwentuha, if such results were reliable. However, for the accused's counsel insisted that the results of the said

....7 identification parade were unreliable.

He submitted that that was so, because the said identification parade was carried out in a manner which breached the rules set out in the case of Ssentale v. Uganda (1968) R. A. 365. For example the accused was not advised of his right to counsel before the parado was carried out.

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Secondly instead of eight other participants, the said larade had only five other participants apart from the accused.

Thirdly, IW2 was introduced to the said parade in a mannen which suggested that her assailants were part and parcel of it Lastly, those who carried out the said varade were at the same time the investigating officers in this case.

Mr. Zehurikize argued that since the above identification warade was conducted in gross breach of the recognized rules, its results were useless and could not corroborate PW2's evidence of identification.

Hence, PW2's evidence identifying the Accused as one of her attackers would in the circumstances of this case not be sufficial $\mathbf{1}$ to the accused to the crime in issue.

Accordingly, Mr. Zehurikize urged court not to put the Accused to his defence. He prayed that he should be acquitted forthwith

Mr. Wagona for the State did not wish to be heard, he left the issue to court to decide.

In the land mark case of R. Bhatt v. Republic (1957) P. 332 a prima facie case was defined as.

"one in which a reasonable tribunal properly directing its mind on the law and cyclence could<br>convict if no explanation is offered by the<br>accused."

The question now facing court is to decide whether the prosecution ease herein falls within the above definition?

Since die defence conceded that there was a robbery and that a deadly weapon (i.e. a gun) was used in that rbbbery, the crucial point to decide here, is simply whether the prosecution has proved that the accused took part in the said robbery?

As counsel for the accused ri . htly pointed out, the only direct evidence on record which appears to implicate the *c\* ccuse.d with the offences in issue is that of PV/2 who said that she saw and recognized the ziccused during the attack bj^r means of -light which came from. a lantern.

However, the said v/itness no ho\*' the .caused before the incident, further, the attack in issue was a savage one in which a gun was fixed several times and pangas wielded all through. The said attack was carried out at ni- ht. ?#uch as the said witness pointed out that there was light, she also admitted that she was quite frightened during the- attack. In fact it would appear that because of the said fright, this witness was not even able to know exactly how long the whole episode lasted. Further, in addition to the above difficulties, Pv;2 was also carrying a four months¹ old baby throu/shout the ordeal. It is therefore not unlikely that her attention was also '• taken up by the safety of this little baby.

In the circumstances therefore, it is my view that although 1-7'2 may have been a txuth:ful witness, her evidence of identification of the tccused could r-'w-. been mistaken. Indeed PW1 who was also present throughout the attack confessed that he did not recognize the .-'accused.

Accordingly, I would agree with Counsel for the hocused that before PVT2\*s evidence can be acted upon, it would be

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necessary to have some other independent evidence to corroborate it. (Please see lone v. Nepublic) (supra).

the only piece of evidence in the prosecution case which would be available to corroborate PW2's ovidence of identification, are the results of the identification, and which PW4 cancied out in the presence of P'3, where PW2 is supposed to have identified the coused.

However, when one critically examines the manner in which the said parade was conducted, one cannot help suspecting its results.

As Mr. Zehurikize rightly pointed out, quite a number of rules laid down in the case of Saontale v. Republic (supra) were grossly breached in conducting the said parade. According to the evidence on record, only six other persons (apart from the meeus were lined up in the said parade. It would appear too that the remard was not told of any of his legal rights before the said parade was held. Whirdly, the identifying witness (i.e. FW2) we biased by PW4 at the time of being introduced to the said Parade. She was given the impression that her attackers were definitely participating in the parade. Lastly, PW3 and PW4 admitted that they carried out preliminary investigations in this case.

All the above is obviously in gross violation of the rules set out in Ssentale's case (supra) and Republic v. Mwan e s/0 Maras $(1936)$ 3. U. A. C. A. 29.

To make matters worse, even the circumstances surrounding the identification, arade do not help. First of all, the said i untification scale was organized hurriedly, since PW3 and FW4 were anxious to send the accused to Bushenyi Police Station.

Secondly, the six participants, were collected from the same Trading Centre where PW2 was working. As far as this anomaly is concerned, I think it is not easy to pursuade anyone that PW2 did not know the said participants before and thirdly, it would appear that PW4 who was the key figure in organizing the Identification barade was not a very truthful witness. He lied about the Accused's arrest. While PW2 and FW3 (whom I believe said the truth on this point) related to court that PW2 did not name any of her assailants, PW4 contradicted that evidence and said that he was able to go on the accused's trail and later arrest him because PW2 specifically named him. This was an obvious lie on PW4's part. Indeed from the evidence on record PW2 did not come to know the Accused's name until 12 years after his arrest.

In view of all the above short-comings, I think it would be very unsafe to rely on the results of the identification Parade in issue. I have accordingly decided to reject its results. In the circumstances, PW2's evolumed of the docused identification at the time the attack, stands uncorroborated. As a result, it is quite plain that the prosecution's case does not measure up to, the standard spelt out in Bhatt's case (supra).

To put the coused person to his defence in a case like this one would be simply to ask the defence to fill in the gaps left in the prosecution case.

I would therefore have no other choice but to acquit the Accused of the offence of aggravated robbery since the prosecution has failed to make out a prima facie case against him. I order that he should be released immediately, unless he is being held on some other lawful charges.

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Luis AND 3gd: ... Lugayizi

$10$

Read before: Accused

3.41 p.m. $At:$

Mr. Zehurikize for Accused

Mr. Magona (State Attorney)

Mr. Munyampenda - Court Clerk

$11$

One of the Assessors.

D. S. Ingayiz<br>Ag. Judge Sgd: zi

$15$

6.7.94