[2025] UGHC 390

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CR-SC-0182-2024**

**UGANDA=====================================================PROSECUTOR**

**VERSUS**

1. **MUMBERE BRIAN** 2. **ZAMALI PETER==============================================ACCUSED**

**BEFORE: JUDGE DAVID S. L. MAKUMBI**

**JUDGMENT**

The Prosecution was represented by State Attorney Ruth Naisamula while the Accused persons were both represented by Counsel Geoffrey Mishele on State Brief.

The indictment in this case is for Aggravated Robbery contrary to Sections 266 and 267 of the Penal Code Act.

The particulars of the offence are that on the 14th day of May 2024, the Accused persons Mumbere Brian (A1) and Zamali Peter alias Kagame (A2) attacked one Rusoke Herbert with a panga and robbed one Esther Kisakye of a mobile phone, cash UGX 175,000, charger and keys all being worth UGX 1,090,000 in Kilembe Quarters in Kasese Municipality.

Rusoke Herbert sustained multiple cut wounds to the head, shoulders and left arm and spent two weeks in hospital.

The matter was reported to police leading to the arrest of A1 and A2. They were medically examined and found to be mentally stable.

According to the time-honoured case of **Woolmington v DPP (1935) AC 462**, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

It is equally trite that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.

The determination of whether or not the burden and standard of proof have been discharged is based on the Supreme Court decision in **Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991** where it was held that,

*“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”*

Section 266 of the Penal Code provides that any person who steals anything and at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained commits the felony termed robbery.

Section 267(2) of the Penal Code Act provides that notwithstanding subsection (1)(b), where at the time of or immediately before or immediately after the time of the robbery, an offender is in possession of a deadly weapon, or causes death or grievous harm to any person, the offender or any other person jointly concerned in committing the robbery, shall on conviction by the High Court, be liable to suffer death.

In the case of **Uganda v Mawa alias Matua** (1992-93) HCB 65 it was held that to secure a conviction in aggravated robbery, the prosecution must prove beyond reasonable doubt that there was use of or threat to use a deadly weapon at or immediately after the theft and that the accused participated in the commission of the robbery

For the Accused to be found guilty of Aggravated Robbery the following ingredients must be proved beyond reasonable doubt by the Prosecution.

1. Theft – In proving theft the Prosecution is expected to prove the following: (see **R v Turner (No.2) [1971] 1 WLR 901**) 2. Taking of property belonging to another 3. Lack of consent or claim of right 4. Intention to permanently deprive another person of property 5. Participation of the accused 6. The Accused used or was in possession of a deadly weapon 7. The Accused participated in the offence

At the preliminary stage of the trial the Prosecution and Defence agreed to admit Police Form 3 with respect to the medical examination of Herbert Rusoke and it was admitted into evidence as Prosecution Exhibit No. 1 (PEX 1). The Prosecution and Defence further agreed to admit Police Form 24 into evidence with respect to medical examination of Mumbere Brian (A1) and Zamali Peter (A2). The Police Forms 24 for A1 and A2 were entered into evidence respectively as Prosecution Exhibits 2A and 2B (PEX 2A and 2B).

The Prosecution led evidence from three witnesses while the Defence led evidence from the two Accused persons who testified on oath as DW1 and DW2 respectively.

PW1 Esther Kisakye testified that she knew A2 as a neighbour in Kilembe Quarters from 2023 to 2024. She further testified that during the night of 14th May 2023 at around 12.30AM she and PW2 Rusoke Herbert were returning from a bar and while PW2 was trying to open the gate A2 attacked him with a panga. A2 then pursued her and hit her with the flat side of the panga causing her to drop her bag containing a phone, charger, money and keys. A2 took the bag and shoes from PW2. PW1 went on to testify that she had recognized A2 by way of security lights after PW2 had thrown dirt in his eyes and he had removed a mask that he was wearing while trying to get the dirt out of his eyes.

PW1 testified during cross-examination that she did not identify A1 at the scene and that furthermore they had not reported the case to police till 22nd June 2024 as she was nursing PW2 her boyfriend in hospital. PW1 admitted during cross-examination that she never mentioned identifying the accused persons in her police statement. PW1s police statement was admitted in evidence as Defence Exhibit No 1 regarding this inconsistency.

PW2 Rusoke Herbert testified that he got to know about A1 in May 2024. He went on to testify that A2 had attacked him on 14th May 2024 and that during the attack PW2 had thrown sand into A2s eyes. A2 had then removed his mask to clean his eyes and PW1 had recognized him by security light. PW2 witnessed A2 pursue PW1 and take her bag before he passed out. PW2 was then admitted in hospital for about two weeks before he was able to report the matter to police. PW2 had seen A2 two days after being discharged from hospital but A2 had run away. PW2 had then reported to police after he found out that A2 was working at Yahaya Grinding Mill.

During cross-examination PW2 admitted that he had not told police about identifying A2 at the scene of crime.

PW3 D/Sgt Tayebwa Francis testified as investigating officer. He testified that he learnt about the case on 15th June 2024 when PW2 reported at Kasese Police Station. PW3 went on to testify that PW2 had told police about how A2 and A1 had attacked and robbed him and PW1. PW2 had then located A2 leading to his arrest. PW3 testified that a witness called Ainebyona had overhead A1 claim that he had robbed someone of a mobile phone and money and that this was how A1 was arrested. He testified that the panga was never recovered and that furthermore the stolen items were never recovered.

During cross-examination PW3 testified that the scene of crime was never visited as the crime report had been made after about a month. He further admitted that neither of the accused persons’ residences was ever searched.

The Accused persons were put to their defence and A1 testified as DW1 while A2 testified as DW2.

DW1 claimed that on 14th of May 2024 he was working in Kilembe for a person he could not recall during the morning hours. He had worked the whole day and returned home and had gone to bed around 8PM and slept till 8AM. He went on to state that he had been arrested for another case for which the complainant had indicated he was not interested in the case. Furthermore he alleged that he was being prosecuted because he had failed to pay a bribe to police.

During cross-examination DW1 denied making a statement to police but then also claimed that he only signs by way of thumb-print and that to that extent he distanced himself from the police statement. The statement was admitted in evidence as Defence Exhibit 3 as proof of inconsistency as DW1 had previously applied a written signature to the court record on the Memorandum of Agreed facts and yet he was distancing himself from a written signature on the police statement. He further claimed not to know how police came to know about his particulars as provided in the statement.

DW2 testified that the allegations against him were false and that he had been working during the evening of the incident at the factory where he was arrested. Furthermore he denied knowing A1.

As concerns the ingredient of theft Counsel for the Accused argued that the ingredient of theft was not proved because PW1 never reported a case of theft and that furthermore there was no proof that she had lost a phone as by 22nd June 2024 when the case was reported she was already using her phone lines.

For its part the Prosecution argued that PW1s testimony about the theft was never challenged during cross-examination and that furthermore PW1 had managed to swap her phone lines using a police reference number that she could not readily recall. Prosecution further argued that PW3 had established through investigations that a theft had occurred.

I have considered all the available evidence with regard to whether or not a theft took place. What is immediately clear is that none of the items allegedly stolen were ever recovered as the PW3 the investigating officer testified as much. PW3 further testified that neither A1 nor A2s homes were ever visited or searched. There was therefore only the testimony received from PW1 and PW2 about theft.

The Prosecution argued that PW1 was never challenged during cross-examination about the alleged theft and that to that extent the defence had accepted the evidence of theft from PW1. In that regard, Prosecution relied upon the decision of the Supreme Court in **James Sawoabiri and Another v Uganda – Criminal Appeal No. 5 of 1990.** I noted from the said case that the Supreme Court cited with approval the decision in **Uganda v Dusman Sabuni (1981) HCB 1** wherein it was held that, an omission or neglect to challenge the evidence-in-chief on a material or essential point by cross-examination would lead to the inference that the evidence is accepted subject to its being assailed as inherently incredible or probably untrue.

However, it is not entirely correct that the issue of the theft was never challenged during cross-examination. This is because PW1 was in fact cross-examined on the question of how she still had functional phone-lines so soon after the theft and she explained that her phone-lines were never tracked by the police and that furthermore she had swapped her sim card soon after the theft using a police file Reference Number that she could not recall. She further testified that it had taken her a week after the theft to change her phone lines. The cross-examination about the replacement of PW1s phone-lines was directly material and relevant to the question of theft in this matter. The fact that the defence did not further expand the scope of the cross-examination beyond the stolen phones to other items is irrelevant in my view because by PW1s testimony the rest of the stolen items were contained in the same bag that A2 had allegedly taken from her. By cross-examining PW1 about the stolen phones, her response inevitably would extend to proving whether the other items had been stolen or not.

I also found PW1s version of events about the theft curious and inconsistent in the sense that during cross-examination she had stated that it had taken about one month before her boyfriend PW2 Herbert Rusoke was able to report the case to police. This was because he was supposedly hospitalized after the robbery and PW1 was nursing him in hospital during that time. What is curious about this is that PW1 clearly suggests that whereas she had no time to go and report the aggravated robbery of her boyfriend to police as she was still nursing her boyfriend in hospital, she had managed to find time to report the loss of her phone-lines and get a police file reference number to facilitate the replacement of her sim-cards. To me this automatically begged the question why if she had been able to report the theft of her phones she would not have gone on to report the much more serious issue of aggravated robbery. This raises reasonable doubt that cannot be ignored.

It should also be noted that even if in fact PW1 had not been cross-examined regarding the ingredient of theft, the failure to cross-examine alone would not have settled the question of the theft. The decision in **Uganda v Dusman Sabuni** as cited above concerning cross-examination presupposes that the prosecution evidence effectively establishes beyond reasonable doubt that a theft took place. In this instance the only direct evidence of theft in this regard was that of PW1 and PW2. However, as I have already pointed out PW1s testimony about reporting theft raises reasonable doubt in my mind as any reasonable person having gone through the ordeal that she claimed to have gone through would not have stopped at reporting the theft of phones but would also have reported the aggravated robbery. If PW1 had the time to report the theft of her phones and get replacement sim cards then she clearly had the time to report the aggravated robbery which curiously she failed to do.

Furthermore, when I considered the testimony of PW1 and PW2 about the theft I found that PW1 testified in chief that A2 had attacked PW2 and that PW1 had then run away after witnessing PW2 collapse from his injuries. According to PW1 it was after PW2 had collapsed that A2 had run after her and caused her to drop her bag containing money, her phone, charger and keys which A2 had then taken along with her shoes. However, PW2 testified that PW1 had run away while A2 was attacking him and that A2 had then run after her leaving PW2 too weak to intervene. PW2 had then witnessed PW1 drop her bag which A2 had picked and at this point PW2 testified that he had fainted. In my view there was a material inconsistency in the version of events about the theft from PW1 and PW2. If PW1 was to be believed then PW2 had already collapsed from his injuries by the time she had tried to flee the scene. He would not therefore have been able to witness A2 commit the theft and yet for his part PW2 testified that he had witnessed the theft before he fainted.

In addition to the above, PW3 D/Sgt Tayebwa Francis the investigating officer had nothing of value to bring to the prosecution case about the theft beyond simply testifying about what he had learnt about the theft from PW1 and PW2. He confirmed during his testimony in chief and cross-examination that neither the phone nor any of the other stolen items was ever recovered. While it is in fact possible to secure a conviction of an accused person based primarily on evidence other than that of police investigators, their role in any criminal prosecution cannot be taken for granted. In the case of **Rwaneka v Uganda (1967) EA 768** it was held at Page 771 regarding the role of prosecutors and investigators as follows,

*“… generally speaking criminal prosecutions are matters of great concern to the state, and therefore must be completely within the control of the Police and the Director of Public Prosecutions. It is the duty of prosecutors to make certain that Police Officers, who had investigated and charged an accused person, do appear in court as witnesses to testify as to the part they played and the circumstances under which they decided to arrest and charge an accused person. Criminal prosecutions should not be treated as if they were contests between two private individuals.”*

When I consider the inconsistency between PW1 and PW2 about the circumstances of the theft alongside the fact that PW1 claimed to have reported the theft of her phones to facilitate the replacement of her phone-lines and yet curiously failed to report the aggravated robbery itself, I find that thus is materially grave enough as to cast doubt about whether in fact a theft took place. This doubt is all the more pronounced by the fact that even the police investigations as testified to by PW3 did not yield anything material to prove that the theft took place. The failure of the police to conduct any meaningful inquiries to verify the reports of the theft meant that this matter was relegated to a contest between private individuals which scenario is exactly what should be minimized or avoided in any criminal prosecution.

It should be noted that grave inconsistencies and contradictions of the sort that go to the heart of the matter must be resolved in favour of the Accused while minor contradictions or inconsistencies which do not go to the root of the matter may be ignored unless they point to deliberate untruthfulness (see **Alfred Tajar v Uganda EACA Criminal Appeal No. 167 of 1969** affirmed in **Sarapio Tinkamalirwe v Uganda – Supreme Court Criminal Appeal No. 27 of 1989**).

In the absence of independent evidence such as police investigations to corroborate the testimony of PW1 and PW2 about the theft, I find the inconsistency between their respective testimonies to be grave in the sense that it goes to the heart of whether in fact the theft took place. This inconsistency must therefore be resolved in favour of the Accused persons and I accordingly find that the Prosecution has failed to prove that theft did in fact take place.

In terms of the use of violence in the theft, Defence argued that the panga was never recovered and that no search was ever done at the Accused persons’ residences to ascertain its existence. The Defence also cast doubt on the injuries sustained by PW2 as the medical examination on PF3A took place long after the attack and that the form was clearly based on PW2s medical records.

Prosecution argued that the Accused persons had used a deadly weapon because both PW1 and PW2 testified to seeing the panga used during the attack. Prosecution further argued that the eye-witness testimony was corroborated by the medical report tendered in as an agreed fact Prosecution Exhibit 1 wherein the injuries of PW2 were documented. It was the argument of the Prosecution that according to Section 67(3) of the Trial on Indictments Act an agreed fact is deemed to be duly proved unless if the Court directs the fact to be formally proved.

I have considered the evidence of both the Prosecution and Defence concerning the use of violence in the theft. I have already pointed out concerning the actual theft itself that there was inconsistency between PW1 and PW2 about the circumstances of the theft. This inconsistency while primarily focused on the act of theft also tends to extend doubt to the rest of the testimony of PW1 and PW2 even with regard to the attack itself. PW1 and PW2s testimony having already been found materially inconsistent concerning theft would require corroboration before being relied upon to establish the other ingredients of the offence beyond reasonable doubt. In this regard I place reliance on the case of **R v Manilal Ishwerlal Purohit (1942) 9 EACA 59** wherein the wherein the now defunct East African Court of Appeal adopting with approval the decision in **R v Baskerville (1916) 2 KB 658** held regarding evidence in corroboration that it must be independent evidence which affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it. The Court further held that it was of course not necessary to have confirmation of all the circumstances of the crime and that corroboration of some material particular tending to implicate the accused is enough and whilst the nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged, it is sufficient if it is merely circumstantial evidence of the accused’s connection to the crime.

While the decision in **R v Manilal** above was delivered in the context of accomplice evidence I find it instructive in the evaluation of the evidence regarding the use of violence in this matter. It is clear that Prosecution seeks to bolster its case against the Accused persons by corroboration of PW1 and PW2s testimony about the violence by relying on the medical report as documented in Police Form 3A and received in evidence as PEX 1. However, as clearly pointed out by Counsel for the Accused persons, the date of examination in the medical report is indicated as 22nd June 2024. This is over a month since the date of 14th May 2024 when the Prosecution averred that the robbery took place. The report classified the injuries to PW2 as harm with multiple deep cut wounds with big scar formation. In addition it was reported that the injuries were 5 weeks and 4 days old because the incident had taken place on 14th May 2024.

By my analysis of the medical report, it seemed to me that the medical examiner had deduced the age of the injuries based upon the victim’s report and not on the basis of scientific fact. This essentially defeated the purpose of the medical examination. In the case of **R v Cheya and Another (1973) EA 500** it was held that proof of death without medical evidence must be cogent as to leave no doubt as to the cause of death.

While the aforementioned case was in the context of the need for cogent evidence in order to prove death without a medical report I do find it also instructive in this matter in the sense that the cogency of the evidence of the cause of the victim’s injuries was largely dependent on sound medical evidence. This is because there was gap of over a month from when the incident occurred to when the victim was examined. It was therefore imperative for the medical examiner to demonstrate scientifically that the injuries suffered by the victim were not only caused by a panga but actually occurred on or about the same date that the victim said they did. Establishing the time when the injury was inflicted upon the victim was a point of science within the meaning of Section 43 of the Evidence Act and therefore warranted an expert opinion from the medical examiner which was not given. To that extent it was not possible to confirm beyond reasonable doubt that the injuries seen on the victim over a month later related to the aggravated robbery for which the Accused persons were charged. The evidence of PW1 and PW2 on its own could not reliably confirm that the injuries documented in PEX 1 were a result of the attack in question given the time lag between when the attack occurred and when the incident was reported to the police.

I therefore find that given the time lag of one month between when the injuries were allegedly inflicted on the victim and the medical examination, the Prosecution failed to prove beyond reasonable doubt that the injuries inflicted upon PW2 were the result of aggravated robbery.

Before I take leave of the issue of the question of violence during the robbery I also noted that the Prosecution made the argument that the fact of the injuries sustained during the robbery was supported by the fact that the Police Form 3A detailing the injuries sustained by PW2 was admitted in evidence as an agreed fact under Section 67(3) of the Trial on Indictments Act. It is provided under Section 67(3) that any fact or document admitted, whether the fact or document is mentioned in the summary of evidence or not, in a memorandum under this section shall be deemed to have been duly proved, but if, during the course of the trial, the court is of the opinion that the interests of justice so demand, the court may direct that any fact or document admitted or agreed in a memorandum filed under this section be formally proved.

The reference to formal proof in the aforementioned section does not in my view extend to the evidential quality or value of the fact or document admitted as an agreed fact. The fact that the Defence agreed to admit Police Form 3A cannot be deemed as conclusive proof that PW2s injuries were a result of the robbery. It still remained incumbent on the Prosecution to link the injuries described in the report to the robbery in question. To that extent formal proof with respect to Police Form 3A was restricted only to the fact that PW2 was examined and found to have suffered injuries consistent with cuts inflicted with a sharp object. Any assumption that the agreed fact of admitting Police Form 3A amounted to an admission that the injuries were a result of the robbery shifts the burden of proof to the Accused to prove that the injuries were not a result of the robbery and yet the burden always remains on the Prosecution to prove that the injuries were a result of the robbery.

As concerns participation the Defence argued that A1 was never identified at the scene and that therefore no prima facie case had been made out against him. The Defence went on to argue that identification of A2 was also doubtful because it was not clear how the security light at PW2s premises would have been switched on by the time in question. The Defence also contested PW1s identification of A2 because she had failed to mention him in her police statement. PW2s identification of A2 after the attack was also contested in as much as A2 was never put through an identification parade.

Counsel for the Defence also claimed that there was inconsistency between PW1s testimony about the point at which she identified A2 and the testimonies of PW2 and PW3. Counsel contended that according to PW2 and PW3, PW1 run away before the mask of A2 was removed and yet PW1 had testified that she had witnessed A2s mask being removed. The Defence strongly contested the identification of the Accused persons at the scene on the following grounds:

1. PW1 and PW2 never at any point identified A1 at the scene of crime. 2. A1 and A2 testifying as DW1 and DW2 both provided alibis in court by which they contended that they were never at the crime scene. 3. PW1 failed to inform police about the identification of A2 at the crime scene in her plain statement. 4. The conditions at the time of the alleged attack being 12.30AM did not favour identification of the Accused persons. 5. Police investigators did not visit the crime scene. 6. There were contradictions in the evidence of PW1, PW2 and PW3 regarding how A2 came to be identified at the scene of crime. 7. There was no corroborating evidence led from the first responders or any of the neighbours of PW1 and PW2.

For its part the Prosecution argued that the participation of A1 was established by way of evidence led by PW3 and that the evidence in question was admissible despite being hearsay by virtue of Section 5 of the Evidence Act and that furthermore the guilt of A1 was supported by the doctrine of common intention. Prosecution further argued that the fact that PW3s evidence concerning identification of A1 was never challenged and that to that extent it was admissible. Prosecution relied upon the decision of the Supreme Court in **Attorney General v David Tinyefuza – Constitutional Appeal No. 1 of 1997** wherein it was held that hearsay evidence may be admissible under the res gestae principle. Prosecution subsequently invited court to treat PW3s testimony about the identification of A1 as res gestae having been so close to the occurrence of the robbery.

I have carefully considered the arguments of the Prosecution and Defence alongside the available evidence with regard to the participation of the Accused persons. It is clear that there was no direct evidence placing A1 at the scene of crime. Prosecution primarily relied upon the testimony of the investigating officer PW3 who testified that a witness called Ainebyona had overheard A1 at Shauri Yako talking about robbing a driver of a mobile phone and money on 15th May 2024 and it was this information that led to the arrest of A1.

I have considered the arguments of the Prosecution concerning the identification of A1 under the res gestae principle. Section 5 of the Evidence Act provides that facts, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places. With due respect to the learned State Attorney, I believe that the exception to the hearsay rule under Section 5 of the Evidence Act can only apply with regard to the fact of A1 having been overheard to say something linking him to the robbery. As concerns the person called Ainebyona that PW3 claimed overheard A1 using potentially incriminating words, such evidence is not an exception to the rule against hearsay as laid out under Section 59 of the Evidence Act.

The fact of Ainebyona overhearing A1 incriminate himself cannot be construed to be so connected with the fact in issue being the robbery as to form the part of the same transaction being the robbery. The fact of overhearing A1 is a separate transaction which by and of itself required that the person who actually overheard A1 be present in court for cross-examination to ascertain the circumstances and correctness of what the person in question overheard. It is only upon ascertaining that this person correctly and genuinely overheard A1 incriminate himself that Section 5 of the Evidence Act can come into play but only to the extent of admitting what would otherwise be hearsay evidence of what A1 had been heard to say.

For a fact to be relevant to a fact in issue for purposes of application of Section 5 of the Evidence Act, I take into account the holding in the English case of **DPP v Killbourne (1973) AC 729 at Page 759** where Lord Simon held regarding facts relevant to facts in issue that,

*“Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. It is sufficient to say, even at the risk of etymological tautology, that relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.”*

In my view the holding above lays down a relevancy test for what evidence may be deemed admissible under the res gestae principle and that test being whether the evidence in question once admitted under the res gestae would logically prove or disprove a matter. If the evidence in question cannot logically prove or disprove a matter in issue then it cannot pass the relevancy test required for it to be deemed res gestae. In this particular case if the evidence in question were to be admitted it would only serve to raise more questions as to the circumstances under which Ainebyona overheard A1 were conducive to have correctly overheard A1. It would therefore have been preferable for Ainebyona to have been produced in court to testify subject to cross-examination about what he or she overheard A1 saying. It is to this extent that I find that the evidence concerning the identification of A1 was hearsay and that furthermore it could not qualify for exclusion from the rule against hearsay under Section 5 of the Evidence Act.

I therefore find that the Prosecution failed to prove beyond reasonable doubt that A1 participated in the offence.

As concerns the participation of A2 there was direct evidence received from PW1 and PW2 about having directly identified A2 at the scene when he removed his mask during the attack. By PW1’s account in her testimony in chief she testified that A2 had attacked PW2 without a word and when PW2 had collapsed she had then tried to run away. A2 had then pursued her and hit her with the flat side of the panga which had led her to drop her bag which A2 had taken. She went on to testify that she had run to a nearby bar where she found some people to assist her rescue PW2. Upon further examination PW1 testified that as A2 was attacking PW2, PW2 had thrown dirt into his eyes which had led to A2 pulling off his mask whereupon PW1 was able to identify him by way of security lights.

Defence Counsel pointed out that PW1 had never mentioned identifying A2 to the police and that this was an inconsistency evident from her plain statement to the police tendered in evidence as DEX 1. Prosecution invited Court to disregard DEX 1 on the grounds that police statements are only used to impeach the credibility of the witness and that ultimately it was the evidence of the witness in court that mattered. While I do agree that it is the evidence of the witness in court that is relied upon to determine the innocence or guilt of the accused, the plain statement to police cannot be entirely disregarded especially if it tends to establish inconsistencies or contradictions in the witness’ court testimony. As held in the case of **Chemonges Fred v Uganda – Criminal Appeal No. 138 of 1999** also cited as **(2001) UGCA 12** helpfully cited by the Prosecution, the Court of Appeal held that a police statement can be used to impeach the credibility of a witness and where such statement is proved to be contradictory to the testimony, Court will always prefer the witness’ evidence which is tested by cross-examination.

However, in preferring the evidence given by a witness in court, Court must remain alive to whether the evidence given by the witness is cogent and reliable. In this matter my concern arises from the fact that PW1s testimony leading to the identification of A2 does not follow a natural flow during the examination in chief. PW1 first started by narrating the attack on PW2 but never mentioned anything about A2 removing his mask until later during the examination in chief. She initially narrated her ordeal during the attack all the way up to the point where she had sought help from patrons in a nearby bar without mentioning the removal of the mask. It was after this point that upon prompting from the Prosecution she made reference to the removal of the mask. I found it curious that this detail would require prompting as opposed it coming out in a natural and logical flow of events during PW1s testimony in chief. This detail would not be that much of an issue if it not been for the inconsistency apparent in PW1s actions regarding the swapping of her sim cards as a result of the theft. She had already testified that she had no time to go and report the case to police and yet she also testified that she had managed to report the theft of her phone and sim-cards in order to replace her sim-cards. When I consider the entirety of PW1s testimony I find that there was need for corroboration before it could be reasonably believed.

PW2s testimony ought to have generated the corroboration necessary for the identification. However, it is evident from his testimony that the attack occurred at around 12.30AM in the night. The circumstances required for correct identification are well settled and typically involve the following:

1. The length of time of observation by the witness; 2. The distance between the witness and person identified ; 3. Any impediments against correct identification such as time of day and persons or objects obstructing the field of view. (See **Bogere Moses v Uganda – Supreme Court Criminal Appeal No. 1 of 1997; Abdalla bin Wendo and Another v R – (1953) 20 EACA 166; and R v Turnbull (1976) 3 All ER 553.**

Additionally the Court of Appeal also held in the case of **Moses Kasana v Uganda (1992-93) HCB 57** that where conditions favouring correct identification are poor, there is need to look for other evidence, direct or circumstantial to allay doubt in the mind of the trial court of any case of mistaken identity; and this evidence may, amongst others, consist of naming the assailants by those who answered the alarm, and of fabricated alibi.

In this matter PW1 and PW2 testified that they were able to identify A2 in the dark by means of security lights. However, this detail needed corroboration by the police investigators but PW3 testified that the police had not seen fit to visit the crime scene as the matter had been reported over a month later. This was indeed unfortunate because visiting the crime scene would have settled the question of whether in fact there was the necessary lighting at the scene of the crime to aid the identification of A2 by PW1 and PW2. Furthermore, whereas PW1 testified that she had mobilized persons in a nearby bar to respond to the crime scene, these persons were never produced in Court. It was also curious to me that having mobilized the said persons she would not have sought their assistance to arrest A2 for who she testified as being someone she had known previously for two years as a neighbour around the same place where the robbery took place.

The value of the evidence of the police investigator with regard to the crime scene cannot be treated lightly especially given the fact that robbery took place at night. In the case of **Alfred Bumbo & Others v Uganda – Criminal Appeal No. 28 of 1994,** the Supreme Court held that evidence of a police investigating officer concerning the circumstances of arrest of an accused person should always be given where available but the absence of the same would not necessarily prove fatal to conviction of the accused person. The Supreme Court went on to hold that it would depend on the circumstances of each case to determine whether the evidence of the police investigator was essential to prove the charge.

In the circumstances of the instant case it was essential for the police investigator to have visited the scene to confirm whether in fact PW1 and PW2 had correctly identified A2 given the fact that the robbery took place at night. By visiting the crime scene PW3 would have been able to either corroborate or dispel the notion that PW1 and PW2 had been able to identify A2 by means of security lights at the scene.

In the absence of such independent evidence I find I cannot safely conclude that PW1 and PW2 correctly identified A2 at the scene of crime given the time of the attack. A sketch plan drawn by the investigator depicting the scene would have sufficed to establish beyond reasonable doubt that there was adequate lighting at the scene of crime at an appropriate enough distance to enable PW1 and PW2 to identify A2 at the scene. As I already pointed out in the **Manilal** case already cited in this judgment, evidence in corroboration must be independent evidence which affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it.

In this case the fact that the robbery was said to have taken place at night meant that it was vital for the testimonies of PW1 and PW2 regarding lighting be independently corroborated to rule out any chance of mistaken identity but this was never done.

The accused persons both presented alibis in their respective sworn testimonies in their own defence. However, in considering the alibis that were raised, this Court remains mindful of the legal principle that an accused person who raises an alibi as a defence bears no responsibility to prove it. It is always the responsibility of the Prosecution to negative the alibi and even when the alibi has been found to be false, the Prosecution still has a duty to prove the case against the Accused persons beyond reasonable doubt. (See **Uganda v Dusman Sabuni [1981] HCB** 1).

I am also mindful of the legal requirement that alibi as a defence must be raised at the earliest opportunity in order to enable the Prosecution to investigate the alibi and present evidence to negative the same. (See **Festo Androa Aserua & Another v Uganda – Supreme Court Criminal Appeal No. 1 of** 1998). I noted in this matter that the alibis of the accused persons were only presented in Court and to that extent appeared to be more of after-thought with the benefit of having heard the Prosecution case in court. However, this still does not remove the responsibility of the Prosecution to prove the case against the Accused persons beyond reasonable doubt. It is to this extent that I find that the Prosecution failed to prove beyond reasonable doubt that A2 participated in the robbery.

In summary therefore I am inclined to agree with the Assessors in this matter and find that the Prosecution has failed to prove the indictment of Aggravated Robbery against the Accused persons in this matter. I accordingly acquit the Accused persons Mumbere Brian and Zamali Peter of the indictment of Aggravated Robbery and they are free to go unless held on other lawful charges.

Before I take leave of this matter I must point out that I was quite concerned about the failure of the police investigator to visit the crime scene and conduct investigations. The fact that the matter was reported to the police over a month after the alleged robbery took place is not an excuse not to conduct investigations at the scene. The purpose of visiting the crime scene is not simply to collect evidence but it also serves to help independently reconstruct the events as reported by the victims of the crime. Without this independent reconstruction the Prosecution case ends up being reduced to a contest between private individuals being the Accused and the Victim and it becomes very difficult for Court to found a conviction on such evidence upon especially after the passage of time. It should therefore be a matter of practice and procedure and not simply personal opinion for a police investigator to always visit a crime scene regardless of how much time has passed between when the crime allegedly occurred and when it was reported.

Right of appeal explained.

**David S. L. Makumbi**

**JUDGE**

**06/05/25**