[1993] UGHC 41

VW. it' vet

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA - SITTING AT GULU HIGH COURT CRIMINAL SESSIONS CASE NO.282/92 (Original Criminal Case No. HI'. 243 of 1990)

UGANDA .............................................. PROSECUTOR - versus -

A1 ODWONG D3NNIS ) **/ 00900900000 ⁰⁰ 0. 000090 ⁰⁰ 00000900 ⁰ 000 ACCUSED^** A2 OLANYA DICKSON)

BEFORE: THE HONOURABLE MR. JUSTICE G. H. OKELLO.

## JUDGMENT

The accuseds - Odwong Dennis and Olanya Dickson were jointly indicted in two counts for aggravated Robbery contrary to sections 272 and 273(2) of the Penal Code Act. In the 3rd count, they were indicted for Rape contrary to sections 117 and 118 of the Penal Code Act.

The particulars of the offence allege that on the 15/9/90 at Akworo village Palabek Division in Kitgum District, the two accuseds robbed Dixon Oyenya and his wife Christine Laloyo of cash of shs. 20,000/= and ⁵y000/= respectively. It was further alleged that in the course of the commission of the theft, the accuseds threatened to use deadly weapons to wit a gun and a panga on the said victims. Further that on the same day and place, after the said Robberies, the accused also had sexual intercourse with Christine Laloyo without her consent\*

It was the prosecution case that in the. evening of 15/9/90 Dixon Oyenya, his wife Christine Laloyo and a group of other people were returning from a village Market when they were arrested by persons who were armed with a panga and a gun. That these persons were the accuseds. That they robbed Nixon Oyenya of cash of shs. 20,000/= and his wife Christine Laloyo of cash of shs. 5,000/=. That later both accuseds dragged Christine Laloyo into the bush and each forcibly had sexual intercourse with her without her consent.

That the accused who were well known to their victims were identified. The matters were promptly reported to the authorities and the accuseds were arrested. They were subsequently charged with these offences. They denied all the charges against them.

To secure a conviction for Aggravated Robbery contrary to sections 272 and 273(2) of the Penal Code Act, the prosecution must prove (a) that there was theft (b) that there was use of or threat to use a deadly weapon in the course of the commission of the theft and (c) that it was the accused who committed the offence. For the rape, the prosecution must prove (a) that there was sexual intercourse committed against the prosecutrix; here there must be proof of penetration however slight of the male reproductive organ into the female reproductive organ (b) that the sexual intercourse was without the consent of the prosecutrix and (c) that it was the accused who committed the offence.

It is an established principle of our criminal law, that the burden to prove the above essential elements of the offence lies squarely on the prosecution. The burden does not shift to the accused because an accused does not bear the duty to prove his innocence. This principle has been consistently followed by the courts in this region from the day of Woolmington -vs- the D. P. F (1935) AC 462. See Oketh Okale -vs- Republic (1965) EA 555.

The above principle holds good even where the accused pleads an alibi as it is in this case, or something else. It is still the duty of the prosecution to disprove the alibi by leading evidence which places the accused squarely at the scene of crime. See Francis Sekitoleko -vs- Uganda (1967) EA 351.

The standard of proof required to secure a conviction is beyond reasonable doubt. The term "beyond reasonable doubt" was held to mean/the evidence adduced must carry a reasonable degree of probabilities of the accused's guilt leaving only a very remote possibility in his favour.

See Miller -vs- The Minister of Pension (1947) AER 372 at page 273-4.

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In the instant case, to discharge the burden of proof cast upon it by law to prove the guilt of an accused person beyond reasonable doubt, the prosecution called the ovidence of five witnesses: - $\mathcal{L}$ . Lanek Chairman RC III of Palabek as PW1, D. C Apila PW2, a police officer of Kitgum Police Station as PW2, the complainant Nixon Oyenya as PW3, the prosecutrix Christine Laloyo as PW4 and Mary Abalo PW5. The evidence of PW1 and PW2 were admitted under section 64 of the T. I. D. Those are the formal evidence of arrest and re-arrest of the accused. PW3, PW4 and P.75 gave evidence in open court.

Both accuseds gave sworn evidence in their defence in which they all denied involvement in the commission of the alleged offences. For convenience I shall consider the offences of aggravated Robbery in counts 1 and 2 together, then the offence of Rape later.

Cn whether theft was on 15/9/90 committed against Nixon Oyenya and his wife Christine Laloyo of cash of shs. 20,000/= and 5,000/= respectively and that there was use of or threat to use a deadly weapon in the course of the theft, the prosecution contended in the affirmative. That there was theft to the detriment of Nixon Oyenya and his wife Christine Laloyo on 15/9/90. That there was also threat to use a deadly weapon in the course of the commission of the theft. In support of the above contention the prosecution relied on the evidence of PW3 and PM4.

I did direct the gentlemen Assessors as I now direct my mind on the principle of the law governing what constitutes a deadly weapon. A deadly weapon has been defined to include any instrument made or adapted for shooting, stabbing, or cutting and any instrument which when used for offensive purpose is likely to cause death. (See section 273(2) of the Penal Code Act). In the above context, a panga, spear, axe and the like would amount to a deadly weapon. Where the weapon is a gun, its deadliness must be established by export evidence showing that it is capable of discharging bullets or by evidence showing that it was fired

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in the course of the commission of the offence.

See Wasaijja -vs- Uganda (1975) EA 181; Robert Sabiti -vs-Uganda, Cr. Appeal No. 4/89 USC.

In the instant case the evidence of Nixon Oyenya (P'3) and of his wife Christine Laloyo (P74) show that at about 7.30 p.m. of 15/9/90 at Akworo village in Palab k Division of Kitgum District, four of them were returning from a village Market. They were walking in a single file along a foot path when they were halted by two armed men. One of them was armed with a gun (Rifle) and the other with a panga. That the gun man hold his gun with its muzzle facing downwards while the man with the panga wielded his panga and threatened that whoever ran would be shot. After making that threat, the man with the panga pushed his hand in the back pocket of Mixon Oyenya's trousers and pulled out from it shs.20,000/-. He handed that money to the gun man. He again untied Christine Laloyo's luggage and removed from it cash of shs. 5,000/= which he palso passed to the gun man.

The above evidence shows that there was theft to the detriment of Nixon Oyenya and his wife Christine Laloyo.

On the nature of the weapon, it was submitted for the accused that there was no evidence of threat to use the panga. That there was evidence of threat to use the gun.

I share that view. The evidence of PW3, PW4 and PW5 all support that view. PW3 and PW4 both testified that A2 who was armed with a panga, wielded it and threatened that whoever ran would be shot. PW5 also testified that the assailant threatened to shoot her if she ran or made an alarm. The above evidence is important because it defined the weapon whose use the assailant threatened. The words uttered by the assailant while wielding his panga are significant. They expressly conveyed the intention of the assailant. In this case he intended to use the effect of fear of the gun to achieve their goal.

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The above was reinforced by the further evidence of P74. She told court that A2 demanded for more money from her. But that when she replied that she did not have any more money, he threatened to get the gun from A1 . All this evidence show that the threat was to use the gun. There was no threat to use the panga with which A2 was armed. Perhaps if the assailant had wielded his panga and stopped there without adding the words •'whoever runs 'Adil be shot" the threat to use the panga would have been inferred from the act of wielding the panga.

imposing Having said so much, the ' j question to answer is whether there is evidence to establish the deadly nature of the gun whose use was threatened. Uy answer is no. There is no such evidence. There is no evidence either that the gun is capable of discharging bullets or that it was ever fired in the course of the commission of the offence. In those circumstances ¹ am of the view that the prosecution have not proved beyond reasonable doubt that there was threat to use a deadly weapon in the course of the commission of the theft in this case.

The next ingredient is that the Accuseds committed the offences alleged. The prosecution contended in the affirmative. That the accuseds committed a.ll the offences alleged. In support of this contention, the prosecution relied on the evidence of identification given by PV3, P\*74 and PW5» The evidence of identification in this case is given by three witnesses. Clearly, the law governing evidence of iden'bification by a single witness is therefore not applicable.

All the three witnesses (PV73? P-74 and P75) testified that they had known both accuseds before the incident. That Dixon Odwong A1 is their village mate. That they had known him from childhood. A1 did not dispute the above facts. He also admitted that he too ^> knows all the witnesses. That ^P'⁷⁵ at one time eloped with and lived at his homo with his brother as husband and wife.

The witnesses testified that A2 is the brether in law of A1. That his sister was married to A1. That he (A2) used to frequent the home of A1 to visit his sister and thereby became known to the village. That the night in question was not quite dark. There were no clouds and the sun had just set. That they had been close to their assailants during the operation which took over thirty minutes. They also described the dresses worn by their assailants at the time.

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A2 denied that he knows FW3 and FW4 and that they could have known him. He however admitted that he knows PW5 and she too knows him. He also admitted that he used to frequent visits to his sister at the home of A1 and used to stay there at times for one full week.

The accuseds alleged that the allegations against them were concocted because of a grudge which exist between the families of Nixon Oyenya (P33) and/Dixon Cdwong (A1). Dixon Odwong (A1) testified that Mixon Oyenya had at one time stolen a black and white he-goat belonging to the father of Odwong from where it was tethered to graze.

That the matter was reported to the RC.1 Chairman of their That the Chairman heard ond resolved the dispute against village. P73.

The conditions in which the identification was claimed by the witnesses to have been made by them are favourable. The witnesses had known their assailants well before the incident. The night in question was not quite dark - there were no clouds and the sun had just set. The witnesses had been close to their assailants during the operation which took over 30 minutes. In my view these conditions gave ample opportunity to the witnesses to properly identify the persons whom they had well known before.

The disturbing question however, is whether these witnesses for the prosecution are credible or they were prompted by vindictiveness from the alleged grudge to settle an old score against the accused.

The Senior Resident State Attorney urged court to find the witnesses for the prosecution truthful and to reject the claim of grudge as a second thought.

disagree with the view that claim of grudge is a second I thought because that line of defence was taken by the defence It became clear from the line of cross-examination they early. took. The law governing assessment of the evidence of a witness or witnesses is that his consistency and inconsistency are relevant consideration. Grave inconsistency unless satisfactorily explained usually but not necessarily result in the evidence being rejected. Minor inconsistency however, unless the trial Judge thinks that it points to a deliberate falsehood, will not have the same effect. In any case a trial Judge may find a witness substantially truthful even though he has lied in some respect. The above principle of the law was stated in the case of Alfred Taja -vs- Uganda (1969) E. A. C. A - Cr. Appeal No. 167/69. Since then the principle has been consistently followed by courts in this country.

In the instant case, there are some inconsistencies which I consider minor in the evidence of the witnesses for the prosecution. For example, FW3 testified that when he escaped from their assailants, he went and hid himself nearby. That from where he hid himself, he could hear his wife (PW4) and another woman (PW5) being taken by the assailants into the bush. That he got up from his hiding place and started quietly to follow them. That on the way, he met his wife coming. She was crying.

The above evidence did not find support from the evidence of PW4. She told court that when their attackers eventually allowed them to go after they had raped her, she never met any body on the way. That she found her husband (PW3) at the home of one Adot.

The evidence of PW4 further showed that when they were halted by their attackers, her husband Nixon Cyenya (F#3) had a bicycle. But Oyenya (P73) never in his evidence made any reference to the bicycle. These are minor inconsistencies which account only for the details of the event. They do not go to the root of the case. There is no evidence of their deliberate falsehood. They can be explained upon lapse of time. The incident took place about three years ago. Such details of the event are likely to be forgotten.

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I should however, like to point out that it is trite law that once a witness for the prosecution is shown to have proved motive to tell lies against the accused, the evidence of such a witness must be treated with a contion and should not be believed unless it is corroborated. The above principle of the law was stated in KISIMIRI c/o WAMA -vs- R (1951) 18 E. A. C. A 148.

That is a case which originated from Tanganyika (now Tonzania). In that case, the appollant was charged with Yohami with the murder of Jume. The appellant was convicted but Yohami was acquitted. A boy called Saguma gave evidence that the appellant and Yohani assaulted Juma (doccased) with sticks for allowing his cattle to trespass into Yohani's shamba. The deceased sustained two injuries:- One on the head and another on the chest. It was found that it was the injury on the chest which caused the deceased's death. The question of common intention was ruled out.

Evidence was given by Yohami's brother, brother-in-law and wife that the fatel blow was struck by the appellant. All these witnesses had by their relationship with Yohani, strong motive to fix the guilt of the fatal blow on the appellant to save Yohani their relation. The trial Judge did not direct his mind to that most important aspect of the evidence.

It was held on appeal that in the absence of such a direction by the trial Judge, it was unsafe to uphold the conviction. So the conviction of the appellant for murder was quashed.

In the instant case, FW3, FW4 and FW5 all denied any knowledge of the existence of any grudge between the families of Nixon Oyenya 1V3 and that of Dixon Odwong (A1). All these withesses are related to the family of Wixon Oyenya. TW3 is the husband of PM4 and a paternal uncle of PM5. By their relationship, the witnesses are likely to deny the existence of a grudge between the two families to strengthen the case of their relation. I think

$\mathcal{B}$

the allegation of grudge needed to be sufficiently rebutted because if the grudge exists, then the evidence of these witnesses is likely to be thereby influenced. It is the duty of the prosecution to rebut such a claim beyond reasonable doubt. An accused must be convicted on the strength of the case of the prosecution but not on the weakness of his defence. The prosecution could have called the evidence say, of the R. C.1 Chairman before whom the dispute was heard and resolved. He would have thrown more lights on the alleged long standing grudge. This was not done. In those circumstances it is unsafe to convict on the evidence of these witnesses alone without any corroboration.

As regards the charge of Rape in the 3rd count, the prosecution contended that there was sexual intercourse of the prosecutrix without her consent. In support of this contention, the prosecution relied on the evidence of PW4 and PW5. Both these witnesses described how they were led into the bush by their assailants under threat of being shot if they resisted or made an clarm. That from the bush the assailants forcibly had sexual intercourse with PW4 in turn without her consent. That PW5 was mean while ordered under threat of being shot to stand nearby while PMA was being raped. For fear for her life, PM5 stood one meter away from where PW4 was being raped. The witness further testified that they identified the assailants as the accuseds whom they had known well before.

PW3 testified that his wife (PW4) came to him while crying and complained that she was raped by the accuseds. That she came with a shirt which she handed to him. P.74 testified that the shirt/dropped on her from A1 when he was raping her. That after raping her, A1 cleaned himself with the shirt and dropped it on her. That she later picked it and later handed it to her husband (P/3). P/3 further testified that the shirt contained substance which looked like semen smear. That he later handed the shirt to the Folice at Kitgum Police Station.

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That shirt 'was not produced in evidence. ^I was told it got . lost while at 'Titgum Police Station Exhibit Store. It is needless to repeat that Pape is a serious offence carrying a maximum sentence of death, V/ith such a stiff sentence, to secure ^a conviction the evidence adduced must leave only a remote possibility in favour of the accused.

In the instant case, the case for the prosecution depends entirely on the evidence of PW5 and ^P'73. But there is already complaint by the accuseds that those witnesses have proved motive to toll lies against them because of the grudge that exist between the families of Nixon Oyenya (F7/3) and that of Dixon Odwong (Al). PW4 and P75 are shorn to be the wife and niece respectively of PW3. In that case, there is need for corroboration of their evidence.

However, there is no such corroboration. Corroboration is an independent evidence which implicates the accused in material, particulars with the commission of the offence. Here there is no such evidence. There is no evidence which connect the accused with the commission of the offence. The alleged shirt which allegedly dropped from Al in the course of the rape was not produced in evidence. Though it was claimed to contain substance winch looked like semen, the shirt was not taken to the Government Chemist for analysis both of the shirt and the alleged substance for any linkage of them with the accused.

As ^I have already stated above,it is not safe to convict on the evidence of these witnesses for reasons only given. For these reasons,I find myself in disagreement with the gentlemen Assessors. I find that the prosecution has not proved the charges against the accused in all the counts beyond reasonable doubt.

In consequeaco⁵ I find both accusods not guilty of all the offences in the throe counts, .'Choy arc therefore acquitted and ordered to bo sot free unless they are being held on some other lawful grounds.

G. M.: Okello

Judge 17/3/1993.

Judgment - delivered in the presence of bo'th Accusods.

Mr. Ogwal-Olwa for prosecution. Mr. Atare for Accused. Mr. Oyaro Court Clerk.

*/ ^x ^f G. H.* Okello

Judge 17/8/1993.