[1994] UGHC 99

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THE REPUBLIC OP UGANDA IN THE HIGH COURT 01' UC-ALDA AT KAMPALA CRPHNAI. SESSION CASE NO. 74-/93 AT THE SESSION II0LDI7T AT MBARARA

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**VS.**

TWUMYA PLIODA EABOTE *? zz zz ^z* ² • • • - *^z* — ; : ; - • ²² *:z ^z* ?; ^s ACCUSED

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LEPORE? THE HOU. NR. AG. JUSTICE U. S. LUGAYIZI

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 July⁹ 199O? at Kyanyaimtungu Village, Bushenyi District, robbed HAJI NUdU TIBEIkIHGA of a liadio Cassette, Cash amounting to .35,000= and other household properties, and immediately before or immediately after the robbery, used a deadly weapon, to wit a gun on the sand Haji Nuru 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 Kyanyamutunga in Bushenyi District robbed ZAAIU !rASUI£BA of a wrist watch, three travelling bags, 3 blankets, 6 curtains and other household properties, and at the time of the ^j obbery, threatened to use a deadly weapon, to wit a gun. on the said ZAAIU EASUJTA.

The accused denied the offences in both counts, whereupon the prosecution led by Ifr. Y'agona (State Attorney) called four witnesses for the purpose of establishing its case against the accused.

The first of the said witnesses was Haji ITuru Tibekinga who is a Muslim cultivator aged 63 years old- He comes from Kyanyamutunga village in Bushenyi District.

In brief, PW1 told court that on the 12th of July, 1990, at around 9-30 p.m while he was having supper with his family and a neighbour called Israel Balurnu, they were attacked by robbers. The first scene took place in the kitchen where the ' family was seated eating their meal.

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

Soon thereafter, two assailants who were wielding pangas came in and started beating- the witness and others with pangas. They asked for Phi's daughter called Samu. PW1 showed her to them and the assailants took her into the main house.

After sometime, one of the said men returned to the kitchen and took the witness to the main house. On reaching his bed-room, the witness found his daughter Zamu. The assailant told the witness to lie down. He began demanding money from the witness arid assaulting him. The witness directed the assailant to UGS. 35,700/= which was lying in a mattress, but Sama advised that she had already taken out that money.

The assailant then wanted to get the television set or the money obtained from its sale, but the witness advised that none of the two were available.

The. assailant then left the room and the witness locked its door and ran out through the window and. went to one of his neighbour's homes called L'cmyarwanda. As he was doing so, the assailants fired a <-un in his direction.

.....3

Later or, the w? k.iess returned home and discovered that the assailants had taken a radio cassette with two loud speakers, three blankets, three wrist watches and three hand-bags.

This witness finally admitted that he did not know the accused before the attack. He'revealed thar he first saw the accused in court during the last High Court Session in Mbarara.

The second witness was Zarcu Kasumba (the daughter of P¥'1). She is a Muslim cultivator aged twenty years. S.lje comes from Kyanyamutungu village in Bushenyi District.

PV72's story generally confirmed what PH1 had earlier on related. However, she added that on her part she was able to recognize two ci the assailants, them is to sry, the Accused and another man. She reveaT.ed. that as tic time of the attack, there was light from a lantern and that she spent with the attackers about one and half hours in all.

She recounted that after tile kitchen episode, she was led out of the kitchen by the first assailant and found the accused who also carried a panga outside. The accused ordered her to take him inside the main house, which she did. Pff2 carried a lamp ord a four month's old baby. She led the ^accused to a room where she had kept some things which she bought in Kampala. These things included blankets, curtains and carpets. Then the accused saw them, he told the witness that they (the assailants) were not interested in them. All they 'warted was a television set and UGS. 800,000/-.

V/hen PW2 tell the accused that- she neither had the set television ncr the money the accused who was now upset started assaulting the witness. Eventually, TT2 and the accused went to PW1 ' s bedroom? there they found another assailant '. ho had a panga. The two assailants again demands ⁵ money from. 1172, who pulled the sum of UGS. 35,700/- from. K?1 s mattress and ga".~e ii, to them.

...4

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

After sometime, the assailants went out of PVfl-'s room and PV71 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 watches.

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

Subsequently, the police arrested the a.ccused and invited this witness to attend an i dontification parade where the Accused and others, she did not know before, were lined up. The witness was invited by PV'3 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 v/as under great fear during the attack. Che 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. She revealed 'that she did not 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.

Ths third prosecution witness was Detective Assistant Inspector of Police Gumisiriza Karinkiza who testified that on 12'Hi July, 1990, when he was still attached to Bwentuha Police Station, he received a report of robbery from one Edirisa Kanzira. This was around 9\*00 - 10.00 p.m. The witness went to the scone of crime where he found empty bullets.

PT72 related to him the incident and pointed out that although she did not know the names of the attackers she had recognized two of 'Hicm during the attack.

Subsequently, when Corporal IJugisha arrested the ^ccused and arranged an identification parajic which the witness had the opportunity of attending\* PW2 picked out the a.ccused as one of her attackers. Howevezj the said arade was hurriedly arranged because the police at Ewentuha did not want to keep the a ccused in the Police Station for long since they did not have strong cells.

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

The fourth prosecution witness was No. 8253, Corporal Mugisha who is fourty two years old and was attached to Ewentuha police station in 1930.

This witness related to court that on 18th of July, 1990, he went to Katojo village and arrested \*iiie ^censed whom he found washing clothes at the well rear his home. Ho took him to Ewentuha police station where he was charged with robbery.

This witness then arranged for an identification parade in vzhich the accused was placed with six others of the same age and general appearance. These six others were picked from Ewentuha Trading Centre. PW2 was invited to pick out her assailant from the said parade whereupon site 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 Parade was done in a hurry and it took ten to 'twenty 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 Ewentuha Police Station.

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

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

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 ingre- 4 dient 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 seer^ counsel for the # accusedeontinned, the attack was a savage one. It took place at night and PW2 did not know the accused before.

In such circumstances, the possibility of mistake could not be ruled out on the part of PW2.

Mr. Zehurikize pointed out that in order to be able to use PW2¹ s evidence to pin down the accused, that evidence needed to be corroborated by some other independent evidence. He cited the case of RoriayRepublic."(.1967). S. A^&lt; 383•

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 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 becached the rules set out in the case of Ssentale v. Uganda (1968) E. A. 365. For example, the accused was not advised of his right to counsel before the parade was carried out.

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

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Thirdly, PW2 was introduced to the said parade in a manner which suggested that her assailants were part and parcel of it. Lastly, those who carried out the said parade 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 sufficient to tie the accused to the crime in issue.

Accordingly, Mr. Zehurikize urged court not to put the becaused 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 evidence could<br>convict if no explanation is offered by the<br>accused."

. . . . . . . 8

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

Since the defence conceded that there was a robbery and that a deadly weapon (i.e. a gun) was used in that robbery, the crucial point to decide here, is simply whether the prosecution has proved¹¹ that the accused took part in the said robbery?

As counsel for the accused rightly pointed out, the only direct evidence on record which appears to implicate the a caused with the offences in issue is that of PV-2 who said that she saw and recognized the hocused during the attack by means of light which came from a lantern.

However, the said witness did not know the accused before the incident. Further, the attack in issue was a savage one in which a gun was fired several times and pangas wielded all through. The said attack was carried out at night. Much 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, FW2 was also carrying a, four months' old baby throughout 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 PW2 may have been a tru'thful witness, her evidence of identification of the .'reused could have been mistaken. Indeed FW1 who was also present throughout the attack confessed that he did not recognize the .-accused.

Accordingly, I would agree with Counsel for the Accused that before F\*r2's evidence can bo acted upon, it would be

necessary to have some other independent evidence to corroborate it. (Please see . Iona.v ^public) (supra).

The only piece of evidence in the prosecution case which would be available to corroborate PV/2fs evidence of identification, arc the results of the identification /arade which PW4 carried out in the presence of Pvr3, where PV2 is supposed to have identified the .couscd.

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

As '£r. Zchurikize rightly pointed out, quite a number of rules laid dovzn in the case of Ssqntalc vepub.li^c (supra) were grossly breached in conducting the said parade. According to the evidence on record, only six other persons (apart from the .recused) were lined up in the said parade. It would appear too that the hocused was not told of any of his legal rights before the said parade was held, 'thirdly, the identifying witness (i. c. PV72) was biased by PV.r4 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 PV/4 admitted that they carried out preliminary investigations in this case.

All the above is obviously in gross violation of the rules sot out in Ssentale's ease (supra) and Republic v. Mwango s/0 Manaa (1936) 3. t. A. C. A. 29.

Io make matters worse, even the circumstances surrounding the .identificationparade do not help. Birst of all, the said udontification -parade was organized hurriedly, since PW3 an^ K74 were anxious to send the a censed to Bushcnyi 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 PY/2 did not know the said participants before, and 'thirdly, it would appear that PW4 who was the key figure in organizing the identification jarade was not a very truthful witness. He lied about the accused's arrest. While PW2 and PW3 (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 ho was able to go on the -accused1s trail and later arrest him because PW2 specifically named him. This was an obvious lie on PW4'^s part. Indeed from th^ evidence on record P"'2 did not come to know the . Accused's name until 1"2 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 evidence of the Accused identification at the time/the attack? stands uncorroborated. As a result, it is quite plain that the prosecution's case docs not measure up to, the standard spelt out in Bhatt's case (supra).

To put the .ecuscd 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 otliex\* lawful charges.

Ag. Judge 6.7.94

Scad before? Accused At? 3\*4-1 p.m. Mr. Zehurikize for Accused Mr. Vasina (State Attorney) Mr. Munyampenda - Court Clerk One of the Assessors.

6.7.94