[1993] UGHC 67

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

## CRIMINAL SESSION CASE NO. 153/93

**UGANDA**

$\cdots\cdots\cdots$ PROSECUTOR **VERSUS**

MOSES ODIPIN & TWO OTHERS . . . . . . . . . . . . . . ACCUSED BEFORE: THE HON. MR. JUSTICE G. M. OKELLO

## **JUDGMENT:**

Three accuseds- Moses Cdipio, Massan Lekua and Apollo James Asea were jointly indicted for aggrevated Robbery contrary to socilera 272 & 273 (2) of the Penal Code.

The Robbery was alleged to have been committed on 15/7/92 at WARA village Arua District to the detriment of one Dick Aliga. Several household properties including four six-inches feam mattresses were stolen in the Robbery. At the commencement of the hearing of the case, the prosecuting state counsel sought to amend the indictment by striking out the name of the first accused- Moses Odipio, from the indictment on the ground that he had escaped from custody and has since not been re-arrested. The application was made under section 48 (2) of the Trial on Indictment Decree. The amendment bought was granted. The name of Moses Odipio was accordingly struck out of the Indictment and the trial proceeded against only two accuseds-Hossan Lekua and Apollo James Asea. At the hearing the. prosecution called a total of 19 witnesses to discharge the burden of proof Lupon it to prove the guilt of the accused beyond all reasonable doubt. In a case of Aggravated Robbery, the prosecution is to prove the following essential ingredients to secure a convection:-

$\frac{a}{2}$

- (1) that there was theft. - (2) that there was use of or threat to use a deadly weapon in the course of the commission of the thaft. - (3) that the accused committed the above.

In this case there is over wholming evidence to show that Robbery was committed at NVARA on 15/7/92 to the detriment of Dick Oliga. The evidence of PW1 - PW4 which are admitted under section $64$ of the trial on Indictment Decree show that the Robbery was committed by three men two of whom were dressed in military uniform and one was armed with a gune. That they took several house. Properties including four six-inches foam mattresses. There is therefore no dispute as to the commission of theft on 15/7/92 against Dick Aliga.

As regards the use of or threat to use a deadly weapon, there is the evidence evidence of Dick Aliga PW1. It shows that this attackers knocked at his bed room window. That when he opened the door to find out who was knocking, he was at once held at gun point by one of the three men. He was blind folded, his hands were tied behind his back and was ordered to lie down outside the house. He complied and one of the three stood over to guard him while the other two went into the house to collect whatever property they could find. After that he was ordered into the house and the door was locked from outside. He was warned not to make any alarm.

It is trite law that a gun becomes a deadly weapon only when it is shown to be capable of discharging bullets or that it was fired in course of the commission of the offence. The above was stated in the case of Wasajja vs. Uganda (1975) EA 18. This was by the Supreme court in Robbert Sabiti v. Uganda Cr. Appeal No. 4/89 in a judgment which was delivered on 2/11/90.

$-.12.$

$\mathcal{D}$

In the case before me, there is no evidence that the gun was fired in the course of that Robbery at MYARA on 15/7/92. There is however evidence of P. C. Magala PW17 that through the police investigations the gun which was used in the Robbery was recovered. The gun was received in evidence. It is an SMG. 56-128116083. It was marked Exh P2. Attached to it was a Magazine containing some 22 live ammunitions. This was also received in evidence and marked Exh. P 2 (a). There was also an empty Magazine. It was received in evidence and marked Exh. P2 (b). All these were found wrapped in an old blood stained green army shirt. The shirt was together with its contents wapped in an old torn army rain coat. The rain coat was received in evidence and marked Exh. P2 (c). The old blood stained green army shirt was received in evidence and marked Exh. P2. (d).

Mr. Okwongali argued that there was no evidence to link this gun with the gun used in the Robbery at NVAR. I agree. The evidence of P. C. Magala PW17 shows that the recovered gun was said to have been used in the Robbery at Ochodri. There is no evidence showing that the same gun was also used in the MVARA Robbery. But given the circumstances of the case, I think it can reasonably be deduced that that gun was the one which was also used in the MVARA Robbery of 15/7/92.

As regards its deadly nature, there is the evidence of P. Agero. PW18. It shows that he tested the recovered gun and found that it is capable of discharging bullets. Whether or not a gun can discharge bullets is a question of fact not of law. It can be proved by evidence. The best evidence to prove that fact is evidence that it was fired or by evidence of a Ballistic expert. But all these are by no means the only way of proving that fact, I think a credib/ and cogent evidence from a police officer experienced in the working mechanism of guns can also do.

$-.14.$

$\mathfrak{Z}$

I,P. William Agero (PW18) is not a ballistic expert. He is a police officer with rudimentary knowledge of the working mechanism of guns. Ha acquired that knowledge on the job. For the greater part of the thirty years of service, he served as an armoury man\* At whatever station he was attached as such armoury man, he received guns from the police Quarter Masters for his station. He checked the guns so received to ensure that they were in working condition before he stored them in his armoury for eventual use by the police\* In the instant case, he testified that when ha was handed the recovered gun by P. C. Magala PW17 to test, he first checked the cocking and firing pins. He found both to be in proper working condition. To confirm this findings, he loaded the gun with one live ammunition and fired it. It discharged the-bullet. That from that, he formed the opinion that the gun was capable of discharging bullets\*

I am satisfied with the above evidence. It is credible and quite co gent. He arrived at his conclusion after a combination of mechanical. and practical tests of the working capability of the gun, I believe his conclusion and I do find that the recovered gun is capable of discharging bullets. It is therefore ^a deadly weapon. It follows that those robbers at hVARA? who on 15/792 threatened the use of this gun, threatened the use of a deadly weapon within the meaning of section **273** (2) of the Penal Code.

On the identities of the Robbers, the prosecution contended that **the** accuseds were part of the MVARA Robbers. There is however no **direct** evidence in support of this assertion. The attackers left the scene unidentified. But the prosecution relied on two types of evidence to prove that the accuseds were the ^VARA pobbers of 15/7/92. These **are;\***

- (1) Confession and - (2) Circumstantial evidence\*

Whott they were arrested, both Lekua and Asea made their charge a oantioned statements to senior Assistant superintendent of police Norbert Opio - Abongo (P//19). The statements of both these accuseds amounted to confessions, However, these statement were rejected for failure by the recording police officer to comply with the evidence (statement to police officers) Rules - Statutory Instrument No. 1^3 \*• ¹ when recording the statements of these accuseds. He elicited the statements from the accuseds by asking them questions when recording their statements. This contravened rule ⁶ of that Rule-So Rules ⁶ prohibits cross-examination of a person making his charge and cautioned statement® The officer further while recording the statements of these accused persons spoke to them individually first in Kiswahili and later reduced the substance of the statement of each accused in English. This also contfave-\* ned rule 7 of the Rules» Rules 7 requires the statement of a person making his charge and contioned statement to be recorded in the language used by the person and as nearly as possible in the words he used. The procedure adopted by the recording police officei' in this case contravened the evidence (statement to police officers) Rules.

A\* Odwanja V. R. Or\* Appeal No. 398/57 reported in cases on civil & evidence page 56; Ro v. Petero Apudo Cr. Session case No. B.223/62 - Reported in cases on Civil Procedure and evidence page 58.

. Uganda v. G. W. Kiggundu (19?8) HCB 281 are few of the many cases which support the above views.

That left the prosecution with circumstantial evidence to prove that the two accuseds- Lekua and Asea took part in the WVARA Robbery of 15/7/92® To base a conviction solely on circumstantial evidence, the inculpatry facts produced by the evidence must be incompatible with the innocence of the accused and not explanable upon any other reasonable hypothesis than that of the accused's guilt®

Tho -circumstantial evidence in this case is based on the doctrine of recent possession. That the accuseds were found in possession property recently stolen. The property in question are two six-inches mattresses. Two six-inches mattresses were on 8/8/92 recovered from Celina Acibo's (P//12) home and were alleged to be part of the properties which were robbed MV^-RA ' . from Aliga Dick's house in the ^X , Robbery of 15/7/92. Celina's source of these mattresses uere traced to Lekua (A2). Lekua admitted in court that he sold those two mattresses to Celina Acibo sometimes in July 1992 as a commission Agent of one Qivia the brother cf Clipio Moses. admitted evidence of George Arab/e (?W3) shews that he (Ambe) ^p1Qd gone to the police station on. 10/8/92 and there identified two six-inches mattresses as part of the four which were robbed from Dick Aliga1s house in MV\IU on 15/7/92-

At the trial two six-inches mattresses were produced in evidence and were jointly marked Exh. Pio Celina (PW12) confirmed in her evidence that Exh. Pl were the very mattresses which the police (PW16) recovered from her home- That these were the mattresses which Lekua had brought to her. Lekua (A2) also confirmed that Exh. Pl were indeed the very mattresses which he sold to Celina.

Mr. Okwongali submitted that there was no evidence linking these matt^ss es Exh. Pl with those mattresses which George Ambe (PW3) identified at the police station as being part of those which were robbed from HV.iRA on 15/7/92\* I agree with him. • Clearly, there is no evidence in court to connect those mattresses Exh. Pl with those mattresses which George Ambe (PW3) claimed to have identified at the police station, to be two of the four mattresses robbed from -^VARA on 15/7/92. Re did not identify Exh. Pl in court to be the very mattresses he had earlier identified at the police station\* Without that type of linking evidence it is difficult to say that Exh. Pl are two

*6*

of the four mattresses robbed in the Muera Robbery.

Mr. Okwongali further argued that even if Exh. Pl were the matbroomes which George Ambe had identified at the police station, the identification would still not be valid because there was no evidence to show that George Ambe had known the properties in that house where Robbery had been committed on 15/7/92. He pointed out that the evidence of PW4 Geoffrey Asidri showed that only he Geoffrey Asidri was conversant with the properties in that house. He had to be called soon after the Robbery determine which properties were missing from the house.

I agree with the learned counsel for the Accused. In view of the evidence that only Geoffrey Asidri was conversant with the properties in that house where Robbery was committed in MVARA, it was not proper for George Ambe to have claimed to identify the mattresses to be part of the properties robbed from that house where Robbery took place in MVARA on 15/7/92, without evidence to show that he too knows the properties in that house. It is only common sense that one can not identify things which he does not know. You must know something before you can identify it.

In light of the above evidence it is clear that there is nothing pointing irresistibly to Lekua as having been found in possession of any good recently stolen in NVARA Robbery of 15/7/92. It is also the same with Asea. There is no circumstantial evidence at all against him worth considering. The only mention of him was by C. Anifa PW9. She told court that on the $9/8/92$ at about 8.00 p.m. two children came to her bringing to her two plates wrapped in a blue cloth. That when she asked them where they got the plates from, the children replied that they got them from one Asea.

The abrwevidence is no proof that the plates were got from Asea. To that extent the evidence of Caida Anera is hearsey. Even if there was proof that the plates were got from Asea, still that would not be sufficient evidence that he was found in . massession of ....8...

of goods recently stolen in the Robbery because the plates\* were not shown to be part of the properties stolen in that Robbery. , , about

One Assessor G, Okilla expressed concern — the number of violent crimes committed by the use of illegal fire arms in Arua^u Against this background^T he advised that since Lekua led the Police to the recovery of the gun ExhoP2, coupled with his sole of Exh.. P1 to Celina, he should be convicted as charged.,

W. Alima on the other hand advised acquittal for both accuds on ground of insufficiency of evidence., He expressed conserr. on the need of the Police to improve on their investigations in order to effectively fi'ght the wave of serious crimes involving use of illegal guns in A^Ua#

I should like to point out that the evidence show that the person who led the police to the recovery of the gun was Odipio Moses but not Lekua. It must be emphasised that court *cases* are decided on the evidence available but not on any 'other consideration# ' however, admit that there are numerous violent crimes involving usg of illegal firearm in Arua, This is the concern of every peace loving

members of the society., But this court will find difficulty in playing its role in protecting the society if cases brought before it lack adequate evidence or are inadequately investigated\*

In the present case there is no doubt that Robbery was committed HVAR--i on Unfortunately there was no evidence to pinpoint robbers. In these circumstances both accuseds are acquitted and **are ordered** to **be** released forthwith unless they are being held on some other lawful ground.

G. M. ©KKLLO JUDGE. 26/lly^J