[2023] UGHCCRD 179

#### **THE REPUBLIC OF UGANDA**

### IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

#### CRIMINAL SESSION NO. 72 OF 2020

#### ARISING FROM NAKAWA CR. CASE NO. 19/2016

#### **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* UGANDA :::**

#### **VERSUS**

#### **NO. 59945 PC MUSHIKOMA PAUL ::::::::::::::::: ACCUSED**

## **BEFORE: HON. JUSTICE VINCENT AJIJI ALEX MACKAY**

### **RULING ON A PRIMA FACIE CASE**

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The accused was indicted with one count of Aggravated Robbery C/S 285 & 286(2) of the Penal Code act.

The Accused on the 5^th day of May, 2019 at Central Police Station, Kampala, is said to have robbed a one Tumwebaze Doreen of cash worth Shs. $200,000/$ = and before or immediately after the said robbery used a deadly weapon to wit a pistol.

At the close of the Prosecution case, Section 73 of the Trial on Indictment requires this court to determine whether or not the evidence adduced has established a prima facie case against the accused. If a prima facie has been established or made out against the accused that he should be put to his defence (see section $73(2)$ of the Trial of Indictment Act. Where at the close of the Prosecution case a

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prima facie case has not been made out, the accused would be entitled to an acquittal as in the case of Mus V R $[1960]$ EZ 184.

A prima facie case is established when the evidence adduced is such 30 that a reasonable tribunal properly directing its mind on the law and evidence, would convict the accused person if not evidence or explanation was set up by the defence.

As in the case of Bhatt V R [1957] EA 332. The evidence adduced at

this stage should be sufficient to require the accused to offer an 35 explanation, lest he runs the risk of being convicted. It is the reason why in that case it was decided by the Eastern Africa Court of Appeal that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence. The prosecution though at this case is not required to adduce 40 proof beyond reasonable doubt since such determination can only be

made after hearing both the prosecution and the defence. At this stage, I have to determine whether the prosecution has led

sufficient evidence capable of proving each ingredient of the offence

of robbery. $45$

> For the accused to be required to defend himself, the prosecution must have led evidence of such quality or standard on each of the following essential ingredients.

In the case of Uganda V Waiswa Henry and 2 Ors, Criminal Session Case No. 420 of 2010, the following ingredients were laid out as $50$ follows:

1. There was theft of property

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- 2. Use of actual violence at, before or after the theft or that the accused caused grievous harm to the complainant. - $55$

- 3. The assailants were armed with a deadly weapon before, during or after the theft. - 4. The accused participated in the robbery.

## Whether there was theft of the property:

This first ingredient requires proof of the fact that property belonging 60 to the complainant was stolen. Hence there must be proof of what amounts in law to an asportation or carrying away of property of another without his or her consent.

The property alleged to be stolen in this case is money worth Shs. $200.000/$ = from the drawer of the complainant.

# Whether there was use of violence or threat to use violence:

In proof of this element, the court relied on evidence of PW2, Tumwebaze Doreen who testified that she knew the offence of robbery involved personal violence to the victim. However, there was no violence beyond reasonable doubt during the said robbery.

Use or threatened to use deadly weapon:

The prosecution was further required to prove that immediately before, during or immediately after the said robbery, the assailants had deadly

weapons in their possession. Section $286(3)(a)$ of the Penal Code $75$ (Amended) Act 2007, defines a deadly weapon to include any;

- Instrument made or adopted for shooting, stabbing or cutting $i.$ and any imitation of such an instrument which, when used for offensive purposes is likely to cause death. - Any substance 80 ii.

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Which when used for offensive purposes is capable of causing death or grievous harm or is capable of inducing fear in a person or grievous harm, and any substance intended to render the victim of the offence unconscious.

Looking at the prosecution evidence, none of the witnesses mentioned 85 a deadly weapon (pistol) being used during the said robbery. Therefore, I find that the prosecution has failed to prove this ingredient beyond reasonable doubt.

#### Whether the accused persons participated in the robbery: 90

PW2, Tumwebaze Doreen testified that on the 5^th day if May, 2019, after church at around 2pm, she found so many missed calls from her boss, Commissioner of police and other colleagues, and when she returned their calls, she was told her office had been broken into and the person had been arrested. On entering the office, she found the 95 money she had left on her table drawer was missing that is Shs. $200,000/$ =. However, there was no visible breaking on the doors nor drawers. During cross examination, she stated that she was not present at the time the offence was committed.

Her evidence is corroborated by PW3, Nsubuga Sam who testified that $100$ on the 5^th day of May, 2019 at around 1:00pm, he found the accused person in the office of PW2. However, he did not know what he was

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doing there. He then moved out and locked the main entrance and let the exit open. He then called Sgt Ouma, that he had found the accused in the office of and he was told not to allow him move out. He was then arrested. When asked how he entered the office, he denied being involved in anything. When checked, he was found with a copy of a key to PW2's office. In the process of trying the key he had to open the door, money fell out of his pocket.

This is further corroborated by PW4, ASP Mutebeza Samuel, who $110$ testified during cross examination that when he went down stairs, he found a team of CID's who showed him the exhibits which were including money, the amount he did not see.

PW4 testified on how he gave the keys to the motorcycle to the accused but late got a call from....... claiming that there was a problem. 115 He rushed down and met a team of CID's and the accused was arrested for theft of money. They claimed the accused was found with money which he stole from the office drawer of PW2, but he did not see the money nor the key they claimed had been found with the accused.

The accused is charged with Aggravated Robbery but the evidence on 120 record does not support the ingredients of the offence of Aggravated Robbery namely;

That there was theft with use of force or actual violence

That there was use of a deadly weapon involved.

What is revealed here is that there was loss of money which money is 125 said to have been got with the accused but was not produced as an exhibit and even the key he is alleged to have used for gaining entry to the office of PW2 was not exhibited.

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PW 3 talked of the said key and money but PW4 says he did not see the said key nor money.

Indeed, neither money nor the key has been exhibited in court. I therefore find that there is no prima facie case established for the offence of Aggravated Robbery C/S 285 & 286(2) of the Penal Code Act to require the accused person to be put on his defence.

Equally so the evidence of PW2, PW3 and PW4 does not support a 135 charge of theft of money belonging to PW2 by the accused person to which I would have directed him to defend himself on.

Consequently, the accused person is hereby acquitted of the offence of Aggravated Robbery C/S 285 & 286(2) pf the Penal Code Act.

He is accordingly set free forth with 140

scause

**Aiiii Alex Mackay** Judge 15/06/2023

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