[1993] UGHC 45

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA aT ARU. A

## CRIMINAL SESSION HO. 135 OF ly?2

# if' \NDA ::::::::::::::::::: PROSECUTOR VERSUS CHARLES OKECHA ::::::::::::::::::: ACCUSED BEFORE: THE HON. MR. JUSTICE G. M. OKELLO

#### JUDGMENT

The accused, Charles Okecha stands indicted for Aggravated Robbery contrary to sections 272 and 273 (2) of the Penal Code Act.

The Particulars of the offence allege that Charles Okecha on pr about the 7th day of JUne 1991 at Parnitu village in Nebbi District robbed Margaret Opar of one Radio Cassette and that at or immediatedly before or immediately after the theft threatened to use a deadly weapon to wit a eun against the said Mrs. Margaret Opar.

In the night of 6\*7/6/91 at about 2.00 a.m. Bobbery was committed at Pamitu village, Paidah Division of Nebbi District against Mrs. Margaret Opar. ^A group of two men went around the village armed with' a '-'m claiming they were soldiers on operation to round up army deserters. They reached the home of Mrs. Margaret Opa.r and robbed her of her ^adio Cassettee of 'Nova' make with some compacts. When she ■. protested the theft of her Radio, she was threatened with a gun and one gun shot was fired. This subdued her and the gun man went away with tac items.

The accused was alleged tc> have been recognised as the person who held the gun during the robbery. Consequently he and another person Samson Okumu, were arrested in this connection. Samson Okumu however died while in Police custody apparently as a result of tortures. For that reason, only the accused was indicted for this offence. He denied the charge. ?\*\*\

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Tn constitue the offence of Aggravated Robbery, the following ingredients are essential

(1) there must have been theft.

- (2) there must have been use of or threat to use a deadly weapon in the course of the theft. - (3) the accused must have so committed the theft or has taken part in the commission thereof.

To secure ^a conviction for Aggravated Robbery, all those essential ingredients must be proved. The standard of proof required is beyond reasonable doubt. The burden to prove the above essential ingredients .to the required standard lies squarely on the prosecution. This burden does not shift to the defence. An accused do.es not bear any duty to prove his innocence. It is the. duty of the prosecution to prove the guilt of an accused person beyond reasonable doubt. If there is any reasonabledoubt as to the guilt of the accused, the benefit of that' doubt must be resolved in favour of the accused. This is a well established principle of the law, strictly followed by this court. See Leonard - Asihcath -vs- Republic (1963) EA 206 at 208., Oketh Okale vs. Republic (1965) EA.555-

In the case before me, the prosecution called the evidence of the lainant Mrs. Margaret Opar (PW1) , No. 11777 O/sgt. Okore (Pw2); Oringi Manansio (PW3) Valentina Ayer-angp (PW'4), Margaret Atim-ango (Ps'5"'. KCinuoi patrick (PW6 and No. 13665 D/sgt. Uribru PW7\* The accused gave unsworn statement in his defence and called no further evidence'.

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I shall now proceed to examine the evidence given by the Witnesses for the prosecution and the unsworn statement of the accused, Vis-a-Vis the above essential ingredients tn satisfy myself whether the prosecution have discharged the burden cast upon it by law to prove the guilt of an accused beyond reasonable doubt.

## (1) Whether there was theft.

On whether there was theft, There is no dispute. Both the prosecution .and the defence admit that there was theft of a Radio Cassette of a 'Nova' make belonging to Mrs. Margaret Opar from her house in the night of 6-7/6/91- The evidence of Mrs. Margaret Opar (P'Vl) supports this view. She testified that in the night of 6-7/6/91 at about 2.00 a.m. she was in her house with her children. They were already in bed when the heard simultaneous knocks on the door and window of her house. The knocks were hard and aggressive. When she enquired as to who was knocking, the response she got from outside was that those were soldiers on operation and that she should open the doer. She lit ^a Tadoba and when she opened the door, she was confronted by a run man who pointed the muzzle of the gun to her chest and ordered her to ^et back into the house. She retreated backward while the runman followed her with the run still pointed tn her chest up to her bed roon. From her bed roon, the gun man eventually picked her Radio cassette of 'Nova' make with some compacts and went away with them. The above evidence was not contradicted in any way. There was nothing inherently untruthful about it. So like the gontlement Assessor, ^I belie¹ the evidence and from it I do find that there was indeed theft of ^a Radio Cassette of a 'Nova' make six cells belonging to Mrs. Margaret Opar from her house in the nirht of 6-7/6/91\* This ingredient of the offence ha.? been- proved by the prosecution to the required standard.

The next is whether there was use of or threat to use a deadly'#e~p< . in. the course of the theft. Here again there was no dispute. Both ... the prosecution and the defence admit that there was threat to use a deadly weapon to wit a gun in the course of the theft of the Radio Cassette belonging to Mrs. Margaret Opar. The evidence of the complainant Mrs. Margaret Opar (PW1) still supports this view. She testified that when she heard hard and aggressive simultaneous knocks on the door and window of her house and she eventually opened the door, she was confronted

*^a* gun man who forced her at run point- to retreat up to her bed room. That from her bed room, the run man after searching the room, eventually picked her Radio Cassette with some compacts and started.to leave. When she protest the theft of her Radio Cassette, the run man threatened to shoot her with the gun and infact fired one shot in the air.

For a gun to be considered a deadly weapon within the meaning of section ²⁷³ .(2) of the Penal Code Act, it must be shown to be capable of being fired or of discharging bullets. This deadly nature of a gun can be established by evidence in two ways:-

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(a) by the expert evidence- Ballistic expert showing that, the gun in question is capable of firing or of discharging bullets. or

(b) by evidence showing that the run was infact fired in the course of theft. This legal principle was pronounced in Wasanjo. vs. Uganda (1975) EA ¹⁸¹ and it was followed in Robert Sabiti ^Vs. Uganda- Criminal Appeal No. 4- 89 USC. This principle was confirmed by a majority judgment of the USC in Sgt. Shaban Biramba and Anor. Vs, Uganda Cr. Appeal No. 32/89«

In the instant case, the deadly nature of the gun was shown by the evidence of Mrs. Margaret Ppar PW1. She testified that the run was fired in the course of the theft of her Radio cassette. This evidence was not c^TStrad^cted in any way. There was nothing inherently untruthful about it. So. like the gentlement Assessor, ^I believe it and from it I do find that there was threat to use a deadly weapon to wit a gun in the course of the theft, -of the Radio cassette belonging to Mrs. Margaret ppar in the night of 6^7/6/91. This ingredient of the offence has therefore been proved by the prosecutjon to the required standard.

Phis now leads me to consider the next and last ingredient of this offence Thais is whether the Accused committed the Robbery or participated in the ■cosami&sion thereof.

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On this, the learned RSa. contended that the accused took part in the commission of the Robbery. For that entention counsel relied on three types of evidence.

(a) Direct evidence of identification by a single witness. This evidence is provided by Mrs. Margaret Opar PW1,

- (b) Circumstantial evidence. This is provided by PW6, PW4, P'v?5 and PW2. - (c) The doctrine of Recent Possession. This is provided by Orin.vi-Manansio JPW3.

The accused gave unsworn statement in which he denied taking part in the Robbery and explained the circumstances of his arrest. His defence is essentially an alibi. He denied leading PW2 and soldiers or any of them to the recovery of a vun.

I shall consider those different types of evidence in the above order to satisfy myself that the prosecution have or have not proved beyond reasonable doubt that the accused took part in the Robbery of Mrs. Margaret Opar of her Radio Cassette in the night of 6-7/6/91\*

On the evidence of identification by a single witness, the law appears te be clear. It is that it is unsafe to base ^a conviction solely -on tb^ -evidence of identification by a single witness unless the condition favouring' correct identification were ^resen.tt 'hero such conditions were arot present or difficult, corroboration of such evidence should be • . r\* looked to avoid acting on mistaken identification.

Authorities for the above proposition are not hard'to find.

See Uganda-vs. Abdalah Nasur^u (1982) HCBI\* Uganda vs. Filinrio Kakooza (19j^) HCB 1; \*£bdala Bin Wendo And Anor, v. ^R (1953) 20 BACA 166 tomention b ut few.

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In the instant case, Mrs. Margaret Oper(PW1) testified that she recognised the accused as the person who held the gun during the Robbery. Her testimony was that when she heard simultaneous knocks on the door and window of her house, she lit a Tadoba and that when she opened the door, she was confronted by a gun man who she immediately recognised as the accused who she had known before as the village boy. That besides in light which was provided by the Tadoba, the operation took thirty minuts. That during the thirty minutes in the room lit by a Tadoba she was able to recognise the Accused.

But, in gross-examination, Mrs. Coar admitted that she had seen the accused for the first time during that fateful night of $6-7/6/91$ when she was robbed of her Radio Cassette. In re-examination she tried to show that she had known the accused before the incident. She further stated that an identification parade was organised at Nebbi police station at which she identified the Accused. But still under cross-examination the witness admitted that she made three statements to police:- one at Paidah, police station, the other at Nebbi police station and the last one when a policeman came to her home and recorded her statement. She further admitted that in none of these statements did she name the accused as her assailant because she feard for her life. That the accused would kill her if she named him as the person who robbed her.

I told the mentlemen Assessors as I now direct myself that the law regarding assessing evidence of a witness is that consistencies or inconsistencies of the witness are relevant considerations. Grave inconsistencies unless satisfactorily explained usually but not necessarily result in the evidence of the witness being rejected. Minor inconsistencies however do not usually have the same effect unless the trial Judge thinks that it was a deliberate falschood; in any case the court is even entitled to find a witness substantially truthful even though he had lied in some respect.

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The above principle was stated in Alfred Tajar vs. R. EACA appeal No. 167/69. Since then it has been consistently followed by this court. e.g.

Uganda vs. Joseph Lpte (1978) EA 69 Uganda Vs. Dusman Sabuni (1981) HOB ¹ to mention only a few.

Having stated the above principle I must state that the contradictious in the evidence of Mrs. Margaret Opar (PW1) as to when she first known the accused is a grave contradiction on a major issue. The gravity of the contradiction was compounded by her failure to name the accused as her attacker to the authority at the first opportunity. This has a serious effect on her credibility and cogency. It is trite lav/ that failure of ^a witness to name or describe his attacker to a person in authority at the first opportunity is a serious flaw and affects the credibility as well as the cogency of the witness. Thia principle of the law was pronounced in David Mukasa and Anor. Vs. Uganda PACA Cr. Appeal No. 41/76. It was later followed in EFURAS NDYAGAK'VA and others vs. Uganda Cr. Appeal No. •2/77.

Further more, Mrs. Margaret Opar PW1 testified that she was called to Nebbi- police station to identify the accused in an identification parade. That at that parade she identified the accused at the first round.

The imposing question here is, why was that identification parade necessary if the witness had known the accused before the incident *as--' she* claims? The very holding of the identification still goes to cast doubt on the credibility of Mrs. Opar when she claimed that she had kn^pm the accused before and that she had accurately identified him durinrthe robbery.

Well, even if she did pick the accused at that identification as she claimed, the prosecution did not lead evidence to show how the parade was' conducted.

• \*/8. There is a set procedure approved by this court to be followed in conducting an identification parade- Identification parade conducted in any other manner is not acceptable.

## See R. Vs. Mwanra (1953) EACA 29; Ssentale1vs. Uganda (1968) ^E^A 365 ^&gt; the prosecution did not

In the instant case therefore as^the lead evidence to show the manner in which that identification parade was conducted, it is presumed that it was ^a hoax and therefore of no evidential value. For the reasons given above, I find that the identification of the accused by Mrs. Margaret Cp-ar PW1 was not free from possible error. To that extent I disagree with the rentlement Assessors who found that Mrs. Opar occurately identified the accused. There is therefore need fcr other evidence implicating the accused with the commission of or participating in the commission of the robbery. I nevertheless find Mrs. Margaret Ppar substantially truthful as a witness.-

Tthe next type of evidence on which the prosecution relied-to,show that the accused committed the Robbery is circumstantial evidence. The law rerardino this type of evidence is settled. It is that to base ^a e-onviction on circumstantial evidence, the inculpatory facts produced by that evidence must irresistibly point to the accused and to no one else as the guilty one and should not be explanable upon any other reasonable ■\*- " hypothesis than the guilty of the accused. ^&gt;

See S. Muscke VR. (1958) EA 5715; Ibanda s/o Kisongo vs- R.(196\$) E-. 780; Uganda vs. Leo Mubyazita .and 2 others (1972) 2ULR. 31>

In the instant case, the evidence of-Amodoi Patrick PW6, shows where the accused was between 6-7 p.m. of 6/6/91. He testified that he knows

the accused very well. That between 6-7 p.m.-of 6/6/93. he saw the accused at a Wedding party at the home of Michael Ocangmba in the village. That at 7-0® p.m. he saw the accused leave the party together with sam Okumu. That the accused and Sam Okumu.lived in the same locality in the village. Valentina Ayer-ango (PW4) and Margaret Atim-Ango (PW5) are mother and doun-hter respectively. Their evidence show that the daughter still live.-' with the mother under the same roof. That they know the accused who is their blood relation. That at about mid-night of 6-7/6/91 the accused came to their home. He had a gun and was posing as a soldier on operation to round up army deserters. That at their home, the accused demanded money from PW4 and sex from PW5. That they recognised him by his voice and then by the moon light. That when he was leaving their home, the accused fired a shot.

There are some contradictions in the evidence of these witnesses:- ^P'^4 told court in her evidence in Chief that she recognised the accused first by his voice then when she pulled him outside, she confirmed bjr the moon light that that was the accused. But, in cross-examination PW4 told court that it was her daughter PV1/5 who told her that their attacker was ''Oke-cha ".

I think this is a serious contradiction on a crucial issue of . identification. Secondly it must be noted that this PW4 is estimated €0 be about ⁷⁰ years of age. She looks fail and emaciated. It sounded ^ke a joke when she told court that she pulled out of their house the young armed man. In cross-examination she replied that God gave her the strength to pull him out. There is some exaggeration in the evidence of this witness (PWM. ^This is an example of it.

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PW5 on the other hand testified that their attacker demanded money from her mother PW4. That the mother cave him one thousand shillings. But, the mother PW4 never alluded to this fact in her evidence. PW5 further testified that their attacker wore a sweater with a torn arm and a white pair of trousers. But, Mrs. Oper PW1 described her attacker in her 2nd statement to police as a medium size man who were a jacket with tern treusers.

The above contradictions in those cvidence relate to the very issue of identification by the witnesses of $\mathcal{M} = \{1, \ldots, N\}$ their attacker. As circumstantial evidence, they do not conclusively print to the accused as the guilty man as this could well have been any other person.

PW2 testified that the accused led him and some soldiers to a place where they recovered an SMG gun No. 29010 with one Magazine containing ten rounds of ammunitions. That it was hidden in a bush nearby the road side. That the gun was taken away by the soldiers who claimed it as belonging to a deserter. The accused denied over leading FW2 and any soldier or any ef them to recover any oun.

The absence of the mun has even weakened this non conclusive evidence. It is not enough to fix the accused with the commission of this offence.

The next type of evidence on which the presecution relied to prove that the accused participated in the commission of this offence is the "Dectirne of Recent Possession". This is nothing but an extension of **h**never cincumstantial evidence. It works on the same principle. $\angle$ is found in poseession of property which is proved to have been recently stolen, is $\cdot^{\intercal})$ presumed to be the thief thereof if the facts of the case do not point to

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other reasonable conclusions. Alternatively, he may be presumed to bu a receiver of the rood knowing them to have been stolen unless he can account for his possession. The inference that he stole the goods must be irresistible.

Seo Tivra.-i and Another vs. R. (1961) EA ⁶ at 7; Andrea Obonyo vs. /1962) ^E^A >^2.. '

In the instant case, the learned RSA. relied on the evidence of Oringi Manansio (PW^). He testified that he was Secretary for defence RC ¹ of Pamitu village. When he learnt that Robbery was committed in his village in the night of 6-7/6/91 and that accused was wanted in connection with that Robbery and for unlawful possession of a gun, but that he (accused) had already fled into Zaire, he decided to persue him. That with the assistance of the local elders in Zaire, he arrested the accused with a Radio Cassette at a place called Ayisi in Zaire. That he was later assisted by Zairean authorities to escort the accused with the Radio Cassette into Uganda. That on crossing the border into Uganda he handed the accused with the Radio cassette to Serr Police Post. The following morning he accompanied the 0/C Serr Police post to Paidah police station where the accused and the Radio cassette were handed. PW2 TSo-, 1177T D/Sgt. Okore, testified to have been on duty at Paidah Police Station on 7/6/91 when he received the accused with a Radio Cassette from ^Pw3. That he had already received a Report of Robbery of a Radio Cassette Tnom My-s. Opar. On receipt of this Radio, he invited Mrs. Opar who came and identified the Radio Cassette a 'Nova' make a six cells size as bens-. The Radio Cassette was received in evidence and was marked Exh.' Pl.

The accused denied tiiat he was arrested in Zaire nor with that Radio cassette. (Exh. Pl). He explained that he was arrested from his home by PW3 who came with some soldiers. That his personal ^adio Cassette which he had newly bought was also taken at the time of his arrest. That his Radio ^a&sette was different from Exh. Pl.

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It is the duty of the prosecution to prove the guilt of an accused person beyond reasonable doubt. In the instant case, there is dispute as to whore the accused was arrested from and with which Radic Cassette. The presecution is under a duty to show by evidence beyond reasonable doubt that the accused was arrested in Zaire and with a particular item. It is expected that if he was arrested in Zaire, the police post to which he was first handed on cressing into Uganda, would record his particulars, what item he was brought with if any, who brought him, from where, and the allegation against him. Even the particulars of any item with which he was brought to the police post would also be recorded in the police post Diary. At the trial, the officer who received such an accused person at the police post would testify as to the circumstances in which he received the accused at

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his station. This would keep the chain of movement of the accused from the time of his arrest and of any item with which he was brought. Unfortunately that type of evidence was not given here. PW2 testified that he received the accused at Paidah police station on 8/6/91 from the RC of Padeya PW3. This leaves a lacuna in the evidence. PW3 had already handed over the accused to Serr police post. It was therefore the duty of Creceiving officer at Serr police post to give evidence showing how he received the accused at his station and how he late. escorted and handed him over to Paidah police station if he did so. The RC could not after handlig over the accused to the police post have removed him from the police post and brought him to Paidah Police Station. "All this araises . / doubt as to whether the accused was truly arrested in Zaire and was found in possession of Exh. Pl. The facts available do not irresistibly point to the accused as the person who stole the Radio Cassette.

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There is also the evidence of Nc. 13663 D/Sgt. Uribru PW7. He testified on how he escorted the accused to the chambers of the Magistrate Grade 1

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Nebbi for recording the Accused's extra-Judicial Statement and how he later returned him to Nebbi police station after his extra judicial statement was recorded. This evidence is not helpful since the extrojudicial statement was not tendered in evidence.

The gentlement assessors advised a conviction of the accused of the offence charged. They found that there is sufficient evidence of identification of the accused $\mathcal{L}$ as the suilty person. I disagree with the gentlemen Assessors on this. The accused was not shown beyond reasonable doubt to have committed or have taken part in the commission of the Robbery. The evidence available raised suspicion against the Accused as the Robber or one of them. But suspicion however strong it may be, is not sufficient to fix a person with criminal responsibility. This legal principle was stated in the case of R V. Isrcal Epuku s/o Achietu (1934) 1 EACA 166.

For the reasons I have endeavoured to give above, I find the accused not gulty. He is thus acquitted and ordered to be released forthwith unless being held for any other lawful ground.

The Radio Cassette (Exh. Pl) which is established to belong to Mrs. Margaret Cpar need not be kept any longer as it may get damaged in store. It should be returned to her at once.

G. M. CKELLO JUDGE.

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Judgment delivered in open court.

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G. M. OKELLO

JUDGE. $23/4/93.$

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