[1993] UGHC 64

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KhLiPALA - HOLDEN

## AT GULU

HIGH COURT CRIMINAL SESSION CASE NO. 280/92

(Original criminal case No. 284/1988)

UGANDA ........ PROSECUTOR.

TOL OKELLO ) ~ versus - OGWECH SANTO *I* ACCUSEDS.

BEFORE: THE HONOURABLE ⁱ'.iR. JUSTICE G.hi. OKELLO.

## JUD ^G ^h £ ^N ^T

The two accuseds - Tom Okello (Al) and Santo Ongwech (A 2) were indicted for Aggravated Robbery contrary to sections 272 and 273(2) of the Penal Code Act.

The particulars of the offence allege that Tom Okello and Ongwech Santo on the 29th of October 1988 at Layibi village, Gulu Township robbed Saverio Oola of six bed sheets, 2 shirts, 2 trousers, 2 under wears, ¹ overall, seven frocks, 2 table clothes, ¹ pair of shorts and ¹ T-shirt all valued at shs. 250,000/= and at or immediately before or immediately after the said robbery used a deadly weapon to wit a gun on Severio Oola.

It was the prosecution case, that on the 29th day of October, 1988, Tom Okello and Ongwech Santo went to the home of Severio Oola at Layibi village in Gulu District at about 8.00 p.m. They were armed with guns. While at the home of Severio Oola, they threatened the occupants of the house. The occupants fled away and the robbers robbed the items listed in the particulars of the offence. That in the course of the theft the robbers fired gun shots. The accuseds were identified at the scene of crime. When their houses were searched, most of the items stolen were found with the accuseds. They were consequently arrested and subsequently indicted for the Robbery.

Both accuseds denied the charg< against them They pleaded alibi. .

To secure a conviction for aggravated Robbery the following essential ingredients must be proved. They are:-

- (1) that there was theft against the complainant; - (2) that there was use of or threat to use a deadly weapon in the course.of the theft⁵ - (3) that the accused committed or participated in the commission of the theft.

The burden to prove the above ingredients lies squarely on the prosecution. It does not shift to the accused because an accused does not bear the duty to prove his innocence\* This is an established principle of our criminal law\* See Leonard A sinethv. Rjr(l963) EA 206\*

The standard of proof required to secure a conviction is beyond reasonable doubt. To achieve this standard, the evidence against tfce accused must bo so strong as to leave only a remote possibility in his favour - a possibility v/hich can be dismissed as not being in the }east probable.

In the instant case, the prosecution called the evidence of three witnesses - Severio Oola P?Z3> Severio Kibwota Uhuru PW4 and Andrew Ochola PV/5\* The formal evidence of D/PC Etako P-?1 and D/lP Onapa PW2 were admitted under section 64 of the Trial on Indictment Decree.

At the close of the case for the prosecution, the Resident Senior State Attorney prosecuting conceded that the prosecution did not make out a prima facie case against accused No.1 - Tom Okello. That the accused had no case to answer.

I agreed with the learned S\*R\*\$\*A. In consequence, ^I acquitted the accused under section ⁷¹ **(1)** of the T. I. D but reserved my reasons for that depiision to be incorporated in this Judgment. I now propose to tackle it first.

A prima facie case had been held in the famous case of R. T. Bhatt v. R (1957) 71 EA 332 to mean one where a reasonable tribunal properly directing its minds to the law and the evidence could convict if no explanation was offered by the accused. In R vs. Herali $\frac{AB}{AB}$ 38/63 the circumstances in which a submission of no case to answer could be upheld were spelt out as under:-

- (a) Where there has been no evidence to prove any essential element in the alleged offence or - (b) Where the prosecution evidence had been so discredited in cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

In the instant case, there was no evidence to link the accused Tom Okello, with the commission of the offence. In other words, the 3rd ingredient above in the offence was not proved. There was no evidence to prove that essential element. For that reason, I upheld the submission of no case to answer. I entered a finding of not guilty and acquitted the accused in terms of section 71 (1) of the $T. I. D.$

I now turn to consider the evidence on record to satisfy prosecution has proved all the essential myself whether the elements in the offence against accused No.2 - Ongwech Santo. Starting with the 1st ingredient - that there was theft to the detriment of the victim. On this ingredient, the prosecution contended that theft was on 29/10/88 committed against the complainant Severio Oola (PN3). In support of that contention, the prosecution relied on the evidence of $PW3$ , $PV/4$ and $PN/5$ .

Severio Oola (Pw3) testified that on 29/10/88 at about $8.00$ p.m he was in his home at Layibi village. He was with his wife Agnes Angeyo and a visitor named Fosca Opiyo. At this time, he heard gun shots emanating from the direction of

the home of his brother Albert Kidega. They feared and all separately fled into hiding leaving the door of the house open. It should be borne in mind that rebel activities were still rampant in the District at this time. The court takes notice of this fact. Accordingly, the fear in such a situation was therefore not far fetched. The witness further testified that he hid himself in the nearby bush. From where he hid himself, he heard the gang reached Ms home. But he did not recognise any of them. He did not return to his home until the following morning. He spent that night some where else. On his return to his home the following morning, the witness found that his and his wife's clothes were missing -uf from the house• He went to his brother Severino Kibwota Uhuru PV/4 and informed him of the theft of his properties.

PW4 and PW5 both confirmed that PW3 informed them of the theft of his and his wife's clothes. From the above evidence, the learned S. R. S. A invited this court to find that theft was committed against PW3 on 29/10/88. That these witnesses are truthful and should be believed.

For the defence, it was contended that no theft was ever committed against PV/3 on 29/10/88. That the evidence of these witnesses are tainted with contradictions and inconsistencies. Counsel for the defence irivited court not to believe these witnesses for the prosecution. He submitted that the properties alleged to have been stolen and were taken to police as exhibits were planted on the accused to implicate him.

The principle upon which this court approaches contra^ dictions and discrepancies in evidence of a witness or witnesses is now settled. It was stated in the case of Alfred Tajar vs. Uganda (1967) E. A. C. A. CR. APP. NO. 167/67. It is that in assessing the evidence of a witness, his consistency or inconsistency are relevant factors for consideration. Grave inconsistency unless satisfactorily explained will

witness being rejected. Minor inconsistencies will not usually have the same effect unless the trial Judge thinks that they point to deliberate untruthfulness; more over it is open to a trial Judge to find that a witness has been substantially truthful, even though he lied in some particular respect.

usually, but not necessarily, result in the evidence of the

The above principle has since been consistently followed by this court. See Bumaki Lutwama and Others -vs- Uganda Or. App. No. 38/87; Haji Musa Sebirumbi -vs- Uganda Or. App• No. 10/89^&gt;

In the instant case, there are discrepancies between the evidence of pV/3 on the one hand and the evidence of PW4 and PW5 on the other. For instance (1) on when PV73 informed PW4 and PVZ5 of the theft of his properties, PW3 testified that he informed his brother PW4 of the theft of his properties the following morning. But PW4 and PW5 testified that PW3 informed them of the theft of his properties in the same night after the incident.

(2) PW3 testified that apart from the gun shots, he also heard the voice of Mrs. Florence Ocen who was apparently captured by the gang and was pleading with them that they were killing her for nothing. Her captors were mean while ordering her to move. He did not mention of his having heard any 'Lakwena¹ song emanating from the same direction. **But .** PW4 and PWJ told court in their testimonies that apart from the gun shots, they also heard some 'Lakwena' songs emanating from the same direction with the gun shots.

(3) PW3 testified that during the search of the house of A 2, PW4 did not enter the house but remained outside and climbed a tree where he observed the wife of the accused hiding in the nearby bush "'¹ some other stolen properties. PW4 on the other hand testified that he also entered the house of the accused when his house was being searched.

**¹** That on information received, he climbed a tree twentymeters from the accused's home 45 minutes after the accused had been arrested and escorted by other members of the search party to the R. C.

> I consider that the above discrepancies are minor. They only refer to the details of the event but not the substance. These mixed-up of the details of the event can be explained on lapse of time. The incident happened about six years ago. It is quite possible for one to forget the details of event which happened as long ago as six years. There is no evidence of deliberate untruthfulness. I therefore agree with the gentlemen Assessors that the witnesses for the proseoution were substantially truthful. I believe them. I thus find that there was theft of the properties of PW3 and of his wife.

of The next ingredient is that there was use/or threat to use a deadly weapon in the course of the commission of the theft. Kir. 0gwal~01wa contended for the prosecution that there was use of a deadly weapon - a gun, in the course of the oommission of the theft. That a gun was fired in the course of the commission of the theft.

For the defence, it was contended that there was no use of or threat **to** use ^a deadly weapon in the course of the commission of the theft. That the gun shots which the complainant heard and fled into hiding was not directed him because the attackers did not know his whereabouts at the time#

In order to constitute the offence of Robbery, the use of or threat to use a deadly weapon to any person or property must be

- (a) to facilitate the theft, or - (b) to retain the things stolen or - (c) to prevent or overcome resistance to the things "being stolen or - (d) to prevent or overcome resistance to the stolen things being retained.

In the instant case, there is the undisputed evidence that gun shots were heard. heard the gun shots in the direction of the home of his brother Albert Kidega. The accused himself admitted that he heard the gun shots in the direction of the home of the complainant. P".;3 testified that when he heard these gun shots he feared for his life and fled into hiding leaving the door of his house open. There is no evidence that these gun shots were fired to facilitate the stealing of those properties of PV/3 and of Lis wife. At that time of the incident, rebel activities were very rampant in the district. People would flee into hiding at the slightest sign of the rebels presence in their village. In the instant case, there is evidence that the voice of Mrs. Florence Ocen was heard pleading with her captors not to kill her. But the captor was ordering her to "move."' Those gun shots could have been to compel her to comply with the order rather than to facilitate the theft of P'»3»s properties. The thugs might have been tempted to steal PV?3's properties when they found the door of his house open. In view of the above doubt, I disagree with the gentlemen Assessors. I find that there was no use of or threat to use a deadly weapon in the course of the theft. The capture of Mr. Ocen and the firing of the gun shots followed by the order "move! move" were not part of the same transaction **of** the theft. This ingredient had therefore not been proved beyond reasonable doubt.

This now leads me to the last ingredient. That, lit was the accused who committed or participated in the commission of the offence•

The prosecution contended that the accused participated in the commission of the theft. For this contention the prosecution relied on the evidence of identification given by PW5\* It also relied on the doctrine of Recent Possession. ^^5 testified that he had known the accused Ongwech Santo from childhood. That they grew together and went to the same school together. They were friends and lived-in the neighbouring villages which were separated by only two miles. That be became thereby very familiar with the voice of the accused.

The above facts were not disputed by the accused. Ptf5 testified further that in the fateful night, he was at the home of PVZ4. They were drinking enguli and was already tipsy That when they heard gun shots and were certain that the gun man was coming towards where they were, they all fled into hiding. He himself hid in a ditch near the house of PW4. That while he was in that ditch, he kept shouting 'Robber\* whenever the gun man fired a shot. That he continued doing that when the gun man was advancing towards him while firing inter-mittently until when he was only ten meters away. That at that distance the gun man said ''this fellow is stubborn." That at that stage and from those utterances he recognised the voice of the gun man as that of the accused - Ongwech Santo#

The learned S. RtS.»A invited court to believe the above evidence of identification and to find that the accused was accurately identified# Mr. A tare on his part submitted th£t the above evidence was incredible.

I directed the Assessors as I now direct myself on the principle of the law regarding identification by a single witness as it was in this case. The substance of the principle is that where the conditions under which the allayed identification was made did not favour correct identification, court should not aot on that evidence without corroboration. It should look for corroboration to avoid acting on mistaken identity.

See Uganda -vs- Abdallah Waswa (1982) HOB\*

In the instant case the evidence of P^5 shows that claimed to have he was not only frightened but also tipsy when he^rocognised the voice of the gun man as that of Ongwech Santo. In my view those conditions were not favourable to correct identification. The witness was affected by fright and the effect of alcohol. He could not have possibly accurately identified the voice of the accused. It is not safe to act on that evidence alone. There is need for corroboration.

The prosecution submitted that there were other evidence which corroborated the evidence of identification. The evidence were -

- (1) the conduct of the accused ands - (2) his being found in possession of recently stolen properties.

Strange conduct of an accused is capable of providing corroboration against him. In the instant case, the alleged strange conduct of the accused was his failure as a -trained soldier to bother to find out what had happened to his neigbours. He had admitted in his evidence that he had heard gun shots emanating from the direction of the home of his neighbour. (PV/3) only fifty meters away from his own. That he suspected the presence of rebels but he did not bother to investigate that fact nor to report it to any nearby Military authorities\*

The Sth'. StA submitted that the above conduct was strange and showed that the accused was the one who fired the gun shots# • That that was why he did not bother to investigate it nor to report to the nearby Military authorities.

The accused explained that he feared that as a government soldier, he would be killed by the-rebels if he was caught by them.

The above conduct of the accused as a trained soldier living within the vicinity of the scene of crime was suspicious^

But was not sufficient to implicate him with the commission of the offence. It merely raised suspicion against him. But suspicion however strong is not enough to saddle a man with criminal responsibility. The accused might have genuinely feared for his life as it is common knowledge that rebels would invariably kill a•government soldier whom they captured. It- would therefore -have been un wise for him to rush to the scene on hearing the gun shots without first ascertaining the enemy, and their strength.

The State Attorney further submitted that the accused was found in possession of goods recently stolen. That this was sufficient to corroborate the evidence of identification,

I directed; the Assessors as ^I now direct myself on the principle of the law regarding the doctrine of recent possession\* It is that where an accused person is found iri possession of recently stolen goods, a presumption arises that he is either the thief or a receiver with knowledge ' that the goods were stolen. Once that is done it becomes disprove the duty of the accused to ^j on the balance of probabilities the presumption. ;; ^v

In the instant case the evidence of PV/3-' and P^4 showed that when the properties of P'^3 his wife were stolen, on information received the house of the accused was searched. That in the search, a pink frock and a black trouser were found\* The frock was identified as that of the wife of P'^3» The trouser was identified as that of PW3 himself.

The evidence of P'«/4 further showed that other items were discovered in a bush nearby the house of the accused. That at the time the wife of the accused was hiding them. All these items were brought to Gulu Police Station where ' they were treated as' exhibits. They were however later returned by the Police to PW3 who demanded for them. He

needed to use- then. They were said to have been torn and no longer available. They were not produced in court.

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The accused denied that any frock or trouser was found in his house during the search. That instead the Militia who carried out the search of his house took away his personal properties. That the other items which were clained to have been discovered being hidden by his wife in the bush near his house v/as planted by PU4 after he (Accused) had already been taken to the EC.

I had already stated earlier in this judgment that I find the witnesses of the prosecution substantially truthful. There is no evidence of any reason why these witnesses should pick on the accused and framed him. with this serious offence. He himself admitted that he had no grudge with any of these witnesses. In those circumstances I find that the accused was found in possession of the frock and a trouser which were part of the properties stolen twenty four hours earlier from pV/3 and his wife.

On the principle of the law stated above,there is a presumption that the accused is either the thief of those properties or a receiver with knowledge that they were stolen. It was up to him to rebut that presumption by leading evidence on the balance of probabilities that he was not the thief or a receiver with knowledge that the goods v/ere stolen.

In the instant case, there is no such rebuttal evidence. As the goods were found with the accused within twenty four hours of their theft, and there is no rebuttal evidence, I find the accused the thief of these goods. Since there was no evidence of use of or threat to use actual violence or a deadly weapon in the course of the theft, the accused is found guilty of theft contrary to section ²⁵² of the Penal Code. He is convicted accordingly. This is a minor and

cognate offence to Robbery.

G. M. Okello Judge

5.7.1993

## S. R. S. A;- .

Accused was convicted under L1G. 29/91 on 11-1.1991 of escape from lawful custody. He was sentenced to 18 months imprisonment. He was trying to escape while on remand in connection with this case. He stayed out for about a year before he was arrested.- I invite court to take this into consideration. Because of this the case was tried six years later. His escape showed lack of remorse.

Accused escaped through a mere technicality. He took the benefit of the doubt. He could have been convicted of receiving. He took advantage of the law. I pray for a stiff sentence. If he stayed long on remand it was through his own fault by escaping. Court should disregard any alleged hardship to his relatives.

## A tare

Accused had been on remand for a period of six years more than the maximum period for the offix of which he is convicted. This is the case in which the court should be most lenient. I therefore pray for leniency.

## SENTENCE;-

The accused was originally indicted for Aggravated Robbery c/s 272 and 273 (2) of the Penal Code Act. After trial he was convicted of simple theft c/s 252 of the Penal Code Act. He had been on remand for about 6 years, but he had escaped from custody while awaiting trial for this case. He was tried for that escape and convicted. For that he was sentenced to 18 months imprisonment.

For the type of offence for which he is convicted now, the accused has no previous conviction. In that case he can not be given the maximum sentence provided by law. Yet his escape showed attempt to evade justice. All in all the sentence must be commensurate to the offence with which he stands convicted. In the circumstances I consider two years imprisonment commensurate this offence. Accused is therefore sentenced to 2 years imprisonment.

G. E. Okello Judge

5.7.1993.

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