[1996] UGHC 75

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT SESSION

### HOLDEN AT MASAKA

# CRIMINAL SESSION CASE 2/95

UGANDA:::::::::::::::::::::::::::::::::::

## VERSUS

| | 1. NTAMBAZI GODFREY | | |--|---------------------|-------------------------------------------| | | | 11:11:1:1:1:1:1:1:1:1:1:1:1:1:1:1:ACCUSED | | | 2. MULINDWA AKIM | | | | | |

**BEFORE:** THE HONOURABLE MR. JUSTICE I. MUKANZA.

### $JUDGMENT--$

The two accused persons Ntabazi Godfrey and Mulindwa Akim herein after referred to as accused NO. 1 $(A1)$ and accused NO. 2 $(A2)$ respectively were Indicted with the offence of Aggravated Robbory contrary to sections 272 and 273 (2) of the ponal code Aot and they pleaded not guilty. The particulars of the Indictement were that on or about the 27th day of January 1994 at Kamagwa village Lwankoni subcounty, Rakni District the two accused persons and others not before court robbed Nalubega Ruth and Namusalu Namaganda Nzera of the following properties namely one hurricane lamp, one blanket, two dresses, eighteen thousand three hundred shillings $(18.300/=)$ and a bicycle and at or immediately before or immediately after the said robbery used a deadly weapon to wit a panga on Nalubega Ruth causing grievous bodily herm to her.

The prosecution in its endeavour to establish its case called 2 witnesses. The accused gave sworn statements and called no witnesses.

The prosecution case was that Kalanda Gonzeka PW1 informed the court that ho knew the two accused persons. 26th January 1994 was a merry making (NRi liberation) day. They constructed a shelter and there was a disco. The accused persons came at night and stayed with thom for sometime. They were just on their own mission when they saw people leave they also left. The witness and others entered their own houses. Sometime later they (the accused) came back with a panga, a stone and a stick. They kicked the door and entered. They assaulted him and the girl was out. They first assaulted them in the main house and then they took them to a small house where they were locked $..../2.$

up\*. They had, already recognised tho two accused persons\* They wore ths first people to come\*

It was at ni\$xt and the accused were flashing torches\* The assailants wore very many but they werQ able to reoognis^ the two accused persons\* The witness reiterated that they were beatc. ip and could not recognise them\* Thon he asser+od that ho recognised him by his voice\* Thon they recognised Altijn when they were transferred to a small house\*

^ventuall;- they banged the small house open where they had been locked\* They reported to the chairman KC1 and finally went to the secretary for defence\*

Kaluboga was cut as she wanted to escape from the house she used to put up in the same house with them\* Tho accused persons took a bicycleblanket and clothoB\* That the blanket belonged to one called ftyalo\* The clothes belonged to Naluboga\* Vhen they got out of the house around 5»OCh.m they first went to JLVs home\* A1 was not there. They opened the house searched the house and nothing was found inside\* The BG1 chairman of the area had already arrested the accused persons\* The accused persons were arxoeiod wit! nothing\* The accused were delivered to the police and they (the witness and others) were called upon to make statements\*

At the time they were attacked one Joseph of Kibuli recognised them\* h cross examination W1 replied that he recognised Godfrey by voice and JGo.ni by himself\* He recognised the way ho was dressed and did not recognise his face\*

PW2 was Emmanuel Semaganda\* He knew A2 but not A1 \* In tho ni^xt of *26'* January ¹⁹⁹⁴ at 530 a.m\* he was at his home sleeping when ho received a report from George Kalanda, Naluboga and Namusoke who told him that they had been attacked by robbors and one of •them Namusoke had her finger cut on the head\* Kalanda told him that they had recognised two robbers who were togoth with Scmbatya who was operating/arranging a disco\* He wont with the defense RC1\* The chairman of Mitundwc and his defence arrested the accused persons. That was his first time to see Akim\* They searched A2's premises and got nothing\* They did not search Akimu\*© premises\* There aftor tho chairman RC1 Matundwe collected about 20 boys and paraded them with tho

s 2 \*

accused persons and called upon the complainants to pick the suspects# Kalanda picked Akim and Godfrey# Namusoko was also invited to identify the suspects and the two picked up the 2 accused persons. The boys wore of the. same ago with the accused persons# The complaints and the accused were later escorted to the police.

In his defence A1 as DW1 testified that he was a shopkeeper and used to deal in general merchandise. On 26th January 1994 he went to dig and returned homo at one oclock (1.00). Ho had his. lunch at around 3.00p.m. after that in the accompany of three friends ho went to attend a football march at a place called Rwankoni# That was one of the Celebrations for that day. Ho actually participated in playing football which onded at 7.00p.m. on returning at the trading centre he went to see his friend Akim A2 who was also his neighbour. A2 told him that ho was waiting for him and that one Sembatya wanted to hire their machine for Disco and that part of the instruments had been taken by Sembatya. The latter had prayed that tho remaining instruments be ferried to him more so those which were at his place.

They took the machinery to Kamagwa village# They arrived there at 8.00p.m# They took the louder speaker and the casetto. Tho disco was not performed because the price agreed upon had not been paid. Sembatya advised him to return the instruments and he complied# They arrived there a-j around midnight and both went to Akim's place first. He took the louder speatraj\* to Akim's house and left the latter having entered in his room^ he took ths bicyl© into his house and went straight on his bed room. Ho did not leav<y his\* ^luce at anytime during the ni^it till the following day at around 6.00a.ri#\

On the following day the defence secretary called Swaliki Muli'-ndwa went to him. He was still sleeping. He wanted to know from him about- th'-® incident at Kamagwc and he explained tho whole matter to him. Ho denied tavi&MS robbed anyone. Later they came and searched their houses and they found ; fto Stolen properties. An- identification parade was made and one Joseph cam e Packed him, Akim, Sembatya and another person. They were picked up beoy ^&gt; so they had taken the disco there which did not perform. Another man Gonze.te picked up Akim, Domulira was never picked on that occassion. They w» jro t. aken to Kalisizo police station and detained.

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A2 as DW3 informed the court that he was a shopkeeper in Mutundwe trading centre, Gombolola Rwankoni Kyotera county Rakai District. On 26th January at around 6.00p.m. he was at his shop when Sembatya and Joseph came and told him that they wanted to borrow their machineries. They were going to perform at Kamagwa. He gave him the louder speaker and the compact which he had. He requested that the rest be taken to him at Kamagwa, Godfrey returned and he explained everything to him. They went to Sembatya but the disco was not price. played due to the hire purchase / The price was low. They left with their equipment at around 1.00p.m. and reached homo during midnight. He want to kic hond and so did Godfroy. Ho stayed with a wife and baby. Ho had not known Gonzeka bufero but rocollucted that he was once placed

in an identification parade comprising ten people. Gonzeka and another person he did not know went and picked hin togenter with Sembatya whereas one Joseph picked up Godfrey, himself and Sembatya and another man he could not remember. The authorities searched their premises but they got nothing.

In cases of this nature the prosecution has to adduce evidence to prove the following elements.

- (a) That there was theft - (b) That theft was accompanied by violence - (c) That a deadly weapon was used - (d) That the accused persons participated in the commission

of the crime with which they were being indicted.

As cegards the first ingredient we have the evidence of Consorka IN1. He is the sole eye witness to this incident. His evidence was to the effect that at the time the said robbers struck some properties like bicycle, blanket and some clothes were taken. He mentioned the names of the owners of those profestios who apparently were not called as witnesses. It is as fe however tc. conclude that there was thaft of the items mentioned above.

As to whether there was violence, it was stated in Opoya \* "... Uganda 1967 EA 75 at page 757 Sir Clement Destang said -

> "For the guidance of prosecution and judges, we would hower ar take this opportunity to stress that there cannot be robbery of any sort without threats $\sigma_c$ actual violence for the purpose required by section 272 and that there should invariably be a finding

> > $...5$

on this point on every case but where robbery is proved it does not appear that the violence required to bring it within S 273(2) need be for any of those purposes."

In the instant case FW1 testified that when they were attached by the robbers including the said accused persons a number of properties were taken by them and stated that one of the girls by the name Nalubega was cut with panga on one of her fingers. The said Nalubega was never called as a witness. It is the considered opinion of this court that there was no violence accompanying the said theft.

The fourth ingredient is whother a deadly weapon was used S 273(2) of the penal code defines a deadly weapon as including any instrument made or adopted for shooting, subbing or cutting and any instrument which when used for offensive purposes is likely to cause death. The evidence on record over this ingredient is that Nalubega was cut on her finger with a panga. A panga is an instrument when used for offensive purposes could cause death by cutting. The said Nalubega who was cut with a panga never testified. Also the said panga was never estibited. I ap as the view that the reference to the said Nalubega that she was cut with a panga and when Nalubega was not called as a witness is hearsay evidence. I therefore in agreement with the opinion of the gentlemen assussors no deadly wappon was used in the commission of the alleged robbery.

As to the participation of the accused person. I have already found that the theft did. take place. But that there was no violence committed to the victims in this case as per the indictment and also found that no deadly weapon was us od. As I stated earlier PW1 was the sole eyevitness to the incident. It start with he contradicted himself in his testimony. He first testified that he recognised the two accused persons. He recognised A2 by his voice and A1 by the flashes of torches and that he had known A2 before but not A1. Lat r on he informed the court that he could not recognise the accused persons because they wore beaten by the assailants. I am of the view that these inconsistencies in the prosecutions PW1 being the sole eye case and witness is a grave one and had not been explained joy the prosecutions and the prosecutions case cauld not be accepted because I feel the contradiction is $.../6.$

not minor one\* Seo Uganda vs, Sembatya ¹⁹⁷⁴ HCB ²⁷⁸,

Moreover PW1 being the sole eyewitness to this incident the true test here is that whore the circumstances were difficult for unmistaken identification it is not whether the witness is reliable, ^A witness may be truthful and his evidence apparantly reliable and yet there is still the risk of an honest mistake un identification. The true test is therefore that there should be some other evidence pointing to guilt such as to show that the evidence of identification is free from ' possibility of error. See Eqinoses KLwanuka vs, Amulle Saturday 1977 pafio Roria ys« Republic 1967 BA 583• In the instant case the condition were not favourable for proper identification of the accused persons. It was night time, Thore should have been other evidence pointing to the guilt of the accused persons, The fleshing of the torches as claimed by JW1 that he recognised A1 was not enough even the identification of A2 by the Voice was also not enough. Things like how long tho episode /incident' took was not given and it was also not clear how close wore ths accused persons to the prosecution witnesses. We are told that PW1 had known A2 before and had known A1 for the first timo. Besides that he said ho did not recognise the accused person because they wore beaten up and he kept oil saying "They recognised the accused persons\*1. Those others he referred to were never called as witnesses. There was another identification parade of the accused carried out by RCs of Kamagwa and Mutundwe whereby 20 boys according to PH2 wero paraded together with the accused perSons and the complainants including PW1 picked up the accused parsons. The identification parade carried out was Contrary to the rule of identification approved by the court of appeal forxEastern Africa in the case of ^R ^V Mwango S/o Manaa 193,6 BACA 29 (jj.so quoted with approval in Sentala vs, Uganda 1968 p 36\$ at p ³ 69,

The rules are headed instructions for identification parades and are as follows:—

- (}) ^hat the accused person :.s always informed that he may have a solicitor. - (2) That the officer inchnjpga of the case although he may be present does not carry on the identific ation.

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(3) That the ■witnesses doe-S not see the accused "before parade\*

- . placed (4) That the accused is among at least eight persons, as for as possible of similar age height general appearance and class of life as himself or herself\* - £5} That tho accused be allowed to take any positions he chooses and that lie is allowed to change his position after each identifying witness has left, if he so desires, ^A - (6) Care to bo exorcised that witnesses are not allowed to communicate with each other after they have been to the parade\* - (7) Exclude every person who has »o business there\* - TEQto -oftx^ful note after each witnof?© takes the parade recording whether the witness identifies or other circumstances\* - Xfil If tho witness de&iz'es to see tho accused wcvlk, Wx him. speaks see his hat on or off, see that this is done. As ^a precautionary measure it is suggested the whole parade be asked to do this to see that the witness touches the person he identifies\* - .(50.) Air termination of the parade or during the parade nek the accused if he is satisfied that the parade is being conducted in a fair manner and make anote of his reply\* - {fl)- In introducing the witness toll him that ho will see a group of people who may or may not contain tho suspected persons\* Don't say pick out somebody or influence him in anyway whatsoever, - (12) All with seruplious fairness otherwise the value of identification as evidence will disappear considerably\*"

As the rules show the same were not complied with when the identification parade vias carried out\* For instance the identifying witness had seen the accused persons before and it is not clear whether the accused were allowed to change their positions after each identifying witness had left.

Well according to these irregularities in the identification plus tho discredited evidence of PW1 I am of the firm view tho evidence of identifict?.t: is totally unacceptable.

All this load to the inevitable conclusion that prosecution had failed to prove the guilt of tho accused persons beyond reasonable as stipulated in the caso of Woolmington vs. ^DPP AC page 435? Sentalo vs, ^Uganda supra at ^P 363. Consequently in full agreement with tho unanimous opinion of tho gentlemen assessors I find the accused not guilty of tho offence of aggravated robbery contrary to section 272, 2J3 '2) of the ponal code and I acquit them of tho indictment and unloss they are being held for any other offonoe I order for their immediate release.

'lr

J 'U ^B GE

1.4.1996

File sent to the District Registrar Ma safe with a view to deliver this Judgment.

I. NUKOZA

JUD GE 1.4.1996,