[2005] UGHC 134

## UGANDA PROSECUTOR VERSUS THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL. HCT - 01-CR-SC-0071/2002 RUHWEZA IBRAHIM ACCUSED BEFORE: THE HON. MR. JUSTICE LAMECK N. MUKASA JUDGMENT

The Accused Ruhweza Ibrahim alias High Class is charged with aggravated robbery Contrary to Sections 285 and 286(2) ofthe Penal Code Act. The particulars of the offence are that the accused person and others still aii large on or about the 11th day of October 2001 at Karokangi village, Nyabani Sub County, Kamwenge District robbed Irene Komuhangi of a Radio (National) and a Torch and at the time or immediately before or immediately after the said robbery used a deadly weapon to wit a panga on the said Irene Komuhangi causing her grievous harm.

The prosecutions case was conducted by M/S Rose Tumuheise a Resident State Attorney-Fort Portal and relied on the testimony of Irene Komuhangi PW1, Asiimwe Denis PW2, Adriano Behwera PW3 and Kaginda John Baptist PW4.

The accused pleaded not guilty and was represented by Mr. Muhumuza Kahwa. In his sworn testimony the accused denied having committed the offence.

pleads guilty. See Article 28(3 )(a) of the The Cardinal Principle of our Penal system as laid down in the case of Woolimgton v/s DPP (1935) AC 462 and followed by Courts since thereafter is that in all Criminal trials the burden of proof rests entirely upon the prosecution to prove the case against the Accused beyond reasonable doubt. The accused is throughout the trial presumed innocent until proved guilty by the prosecution or Constitution ofthe Republic of Uganda.

On a charge of Aggravated Robbery Contrary to Sections 285 and 286(2) oi the Penal Code Act the prosecution has to prove beyond reasonable doubt each of the tollowing elements:-

- 1. That there was theft ofsome property. - 2. That there was use or threat to use violence during the theft. - That there was use or threat to use a deadly weapon immediately before, during or immediately after the theft or that death or grievous harm was caused to any person during the execution ofthe theft, and - 4. That the accused participated in the theft.

Section 254(1) ofthe Penal Code Act defines theft as follows:-

" *A person whofraudulently and without any claim ofright takes anything capable ofbeing stolen orfraudulently converts to the use ofany person other than the general or special owner thereofanything capable ofbeing stolen, is said to steal that thing "*

And under Sub-Section (2)(a) ofthe above Section theft is deemed committed if a person who takes anything capable of being stolen does so with an intent to permanently deprive the owner ofthe thing ofit.

The defence did not contest this ingredient of theft. PW1 Irene Komuhangi testified that in the night of 11th October 2001 around 10.30 p.m, while in her parents house with her young brothers Asiimwe Denis (PW2) and Kiiza Dedus , they were attacked by thieves. The thieves demanded for money but there -'-as none and they went with a radio. PW2 testified that they were attacked by thieves in the night of 111,1 October 2001 between 12.00 mid night and 1.00 p.m. that the thieves demanded for money left by their father from PW1 who told the thieves that their father had not left them with money but that he had left it with one John. That the thieves went off with a sonny radio and a torch which have never been recovered. ^I have no reason to doubt the witnesses' testimonies in this regard. ^I find that the prosecution has proved beyond reasonable doubt this ingredient of theft. 2

The second ingredient is use or threat to use violence during the theft. PW1 testified that when the thieves attacked she was awake in her room silted on a stool reading her books. She heard a loud bang on the hind door and the door gave way as it fell into the house. One of the attackers assaulted her with a knife on the head, cut her head and hand as she tried to protect her head with it. That she was cut on the upper left arm, right shoulder, at the back and at the neck as the attackers demanded for money.

PW2 testified that he was awaked by the bang on the door. That from his room he could hear his sister PW1 being beaten and cut by the attackers as they demanded for money. That after the attackers had left the witness noticed that PW1 had several cut wounds on her hand, neck, shoulder and head. The above evidence shows that there as actual use of violence during the theft. Counsel for the defence concedes and I accordingly find that the prosecution has proved beyond reasonable doubt that attackers used violence in the course ofthe theft.

The third ingredient is whether the attackers used or threatened to use a deadly weapon immediately before, during or immediately after the theft, or causing death or grievous harm to any person during the execution of the theft. Evidence shows that no death was caused in the instant case. PW1 and PW2 testified that one of the attackers was armed with a panga. A panga is a deadly weapon within the meaning of Section 286(2) of the Penal Code Act since it is an instrument made or adopted for stabbing or cutting. PW1 testified that as one ofthe attackers demanded for money he cut her hand and she lost her fingers, cut her on the upper left arm, on the right shoulder and on the neck. PW2 testified that, when with his brother Kiiza Dedus, they went to PW1 after the attackers had left, they found her bleeding with cut wounds on the hand, neck, shoulders and head. PW3 Adriano Behwera testified that when he wer-t to the scene ofcrime, after being told by PW2 and Dedus. he found Irene Komuhangi in a pool of blood and she was unconscious. That her fingers were cut loose and had cuts on the neck and shoulders. Court was shown and saw where the fingers had been cut off, two big scars on the upper left arm. a scar on the right shoulder, a big scar at the back near

the right shoulder, a scar on the back ofthe neck and two scars on the left side of the head of PW1. There was no medical evidence adduced. However from the nature of the scars seen by court on the body of Irene Komuhangi and the fingers which were evidently by cut off ^I find that the Irene suffered grievous harm within the meaning of Section 2 of the Penal Code Act. Thank God that she survived. Counsel for the defence did not contest this ingredient. In the circumstances I am satisfied that the prosecution has proved beyond reasonable doubt that the attackers used a deadly weapon to with a panga and caused grievous harm to Irene Komuhangi in the course of the theft. See: Kalisiti Sebugwano v/s Uganda -SCCA No. 7 of 1987.

The last ingredient was contested by the defence and is whether the Accused person participated in the commission of the robbery. To prove this ingredient the prosecution relied principally on the testimonies of Irene Komuhangi (PW1) and Asiimwe Devis (PW2), I warned the assessors, as I now warn myself to safe guard against a conviction based on mistaken or erroneous identification of the accused person. In evaluating the evidence before it, court should carefully and cautiously consider the conditions of identification and where it finds the conditions unfavourable for correct identification court should look for other evidence pointing to the guilt ofthe accused from which it can be safely concluded that the evidence ofidentification is free from the possibility of error. See: Uganda V/S George William Simbwa SCCA No. 37 of 1995. Bogere Moses & Another v/s Uganda SCCA No. ¹ of 1997, Abdaia Nabulere & Anor v/s Uganda (1979) HCB 77.

^I invited the Assessors, as ^I now invite myself, to closely examine the circumstances in which the identification was made with particular consideration of the factors as set down in the case of Abdaia Nabulere & Another (above). The first factor is visibility. Both identifying witnesses testified that the attack was at night. PW1 testified that the attack was at around 10.30p.m. PW2 on the other hand testified that the attack was between midnight and 1.00a.m. He classified during cross examination that in the night

the attck was at night after 10.00 p.m but before 1.00a.m. It is the testimony of PW1 and PW2 that in the house at the time of the attack there was a burning lantern lamp. PW1 testified that at the time of the attack she was still awake seated on a chair reading her books on a stool and had a lamp in front of her. That when the attackers entered, the one who came in ahead of the other entered where she was reading from, removed the lamp and gave it to his colleque who was coming in behind him. PW2 testified that two attackers came into his room, one of when was carrying a panga and a lantern he had picked from PWl's room. That this attacker handed the burning lantern to his collegue who went with it to the sitting room and the one who had it earlier called out for his collegue to bring back the lamp. The witness testified that at the material time he was peeping from his beddings he had covered his head with and pretending to be snoaring. The above evidence shows that there was sufficient light in the house. ofthe attack he went to bed at around lO. OOp.m and had slept for about three hours when the attack happened. According to PW1 Asiimwe at the time of the attack was about 9 years old and at the time of his testimony PW2 gave his age as 13 years. PW2 was therefore a child of tender years at the time of his testimony and gave unsworn testimony. So as a legal requirement his evidence required corroboration pursant to the provisions of Section 40(3) of the Trial on Indictment Act. ^I find corroboration of PW2's evidence in the testimony of P\V1 and further corroboration in the testimony of Adriano Behwera (PW3). PW2 testified that after the attackers had left the witness and Kiiza Didus went to inform Behwera at his home. PW3 testified that while sleeping at around l. OOa.m he heard an alarm and shortly afterwords Edison Busigye's children Deus and Dedus came to his home and informed him of the attack. The above evidence shows that

The second factor is whether the witnesses knew the Accused person before or he was a complete stranger. PW1 testified that Ruhweza Ibrahim alias High Class lived in the same village with her. Karohangi village, Nyabani Parish. Nyabani Sub County, Kamwenge District. That she had known the accused for two years as butcher man.

PW2 also testified that the accused was a village mate. He had seen him since 1998 and used to buy meat from the accused\* stall at Kanyinya Market. PW3 testified that PW1. PW2 and the Accused were his village mates in Karokangi village. In his testimony the Accused testified that he was residing at Kagorogo village Nyamiko Parish, Nyabani sub County, Kitagwenda County, Kamwenge District. Kagorogo village is different from Karokangi village but within the same Nganuko Parish. However the accused in his testimony testifies about going to Busingye's home, the home of PW1 and P\V2's father. The above evidence shows that the Accused was not a stranger to the eyewitnesses.

The third factor is whether the witnesses had sufficient time to look at the Accused or only had a fleeing glance and the last factor is the closeness of the witness to the accused at the time of commission of the offence. Komuhangi testified that at the time of the attack she was in her room with the door leading to her room open. She was seated on a small chair facing a stool on which were her books which she was reading, and a lantern. The lantern was close to her. The witness heard a loud bang at the hind door, leading to a corridor, which gave way and immediately people entered. Meanwhile when the witness heard the bang she moved off the chair and sat on the floor facing the door from the corridor into her room. Suddenly one of the attackers rushed into her room, grabbed the lantern and placed it in the doorway to the witness' room. That the light from the lamp continued lighting the room. The witness recognised this attacker as Ruhweza Ibrahim. She explained that he was armed with a panga and was dressed in a flowered military uniform. That the Accused remained in the room assaulting her as he demanded for money. There is evidence that the attack cut the witness at various places. Court saw the scars as already pointed out herein before, such evidence shows that the attacker who cut the witness was close to her and spent reasonably sufficient time with the victim for her to be able to recognise him in view of the fact that he was not a stranger to her and there was light from the lantern.

The testimony of PW1 is corroborated by that of PW2 who was occupying a room next to her. PW2 testified that when the attackers came in he covered his head with the beddings and continued to pretend that he was snoaring and asleep but that he had left a space and was quietly peeping out and observing what was happening. That he saw two attackers of whom he identified the accused. That the accused picked a lantern from PW1 's room and passed it on to his collogue who went with it to the sitting room. That the Accused called out to collegue to bring back the lamp. The witness could hear the accused' voice as the accused was asking PW1 where their father was and for money which the witnesses' father had left with them. The witness testified that when he heard the voice he knew it was the accused. The witness explained that it was a voice he has ever heard before and that the Accused had a low voice. In the course of the accused's testimony, as I heard him speak, ^I noticed that the accused has a low soft voice. PW2 testified that when the attacker eventually blew out the lantern, the witness had opportunity to run out ofthe house and hid himself in a hedge ofthe kraal just behind the house occupied by the witness's Uncle one Kasaija Christopher who had started making an alarm. That as the witness was in his hiding place the attackers left the house and one of them came up to Kasaija's house and pushed the door. That by this time this attacker was about two metres from where the witness was hiding. The witness testified that he again identified this attacker as the Accused. That he noticed that the Accused was dressed in flowered trouser folded upwards without a shirt on. That when-the Accused pushed the door to Kasaija's house, Kasaija hit the Accused with a stick and the Accused run away. The witness saw Kasaija also run out of his house and hid himself among the cows in the Kraal. When the witness saw that the attackers had left he went back to the house, called out for Dedus who was bidding under the bed, attended to PW1 and later went and reported to PW3. This evidence snows that PW2 was able to recognise the Accused's voice which he was familiar with in the course of the attack, that he was able to see the Accused both inside their house and while at Kasaija s nouse. that the Accused was close to the witness and spent sufficient time while observing the Accused.

In his evidence PW3 stated that when he and his wife asked Busingye's children the

night ofthe attack when the children came to report the attack to them one of the children told them that he had among the attackers recognised the Accused putting on flowered clothes. In cross-examination PW3 stated that while at the hospital when Komuhangi had gained consciousness she told the witness that she had recognised the Accused as the person who had cut her. I find such early in dependent revealation by PW1 and PW2 to PW3 ofthe Accused as the attacker who each had independently identified in the cause f the attack not only evidence of identification ofthe Accused but also as corroboration of the testimonies of both eyewitnesses. See:- Lwanga Yusufu v/s Uganda (1971) HCB 280, Uganda v/s Abel Ochan (1972)ULR 13. While being cross-examined the Accused stated that he was a retired military man which explains how he must have got access to the flowered military trouser which he was dressed in at the time ofthe attack. The Accused' testimony in this regard further corroborates the eye-witnesses testimony of how he was dressed.

The conduct of an Accused person prior to the offence alleged against him may be taken against him in considering his guilt or otherwise of the offence. PW3 testified that the evening prior to the attack at around 6.00 p.m. the Accused had passed by his home and told him that he was going to Busingye's home to find out whether they had a cow for sell. That despite the witness advising the-Accused that Busingye and his wife were not at home, there were only the children who could not sell a cow to him the Accused insisted on going there. PW2 stated that the day preceding the night of the attack the accused had come to their home and asked their Uncle Kasaija Christopher whether they had a bull for mating cows. In his testimony the Accused testified that on 10th October 2001 he passed by Busingye's home to find out about Rwandabwe's small bull which was at Busingye's whether it was serving. That he talked to the members of Busingye's family about the bull. ^I find the Accused' testimony corroborative of the PW2' and PW3's testimony that the evening prior to the attack the Accused had visited Busingye's home.

In his submission Mr. Muhumuza Kahwa. Counsel for the defence, invited court to

consider discrepancies and inconsistencies in the testimony of PWI as to the presence of the Accused and Muhwezi at the scene of crime. He argued that PWI had immediately after the attacker named Ruhweza to PW3 as the attack she had identified. In his testimony PW3 stated that in the night of the attacker one of the sons of Busingye, PW2 or Dedus, had told him that he had identified the Accused. PW3 also stated that the following day when PWI had gained consciousness she named the Accused as the person who had cut her. The witness denied that any of the two eye-witnesses had named Muhwezi as the attacker they had identified. PW2 denied naming Muhwezi to any of the other prosecution witnesses. While being cross-examined PWI denied having told anybody that she has seen Muhwezi in the course ofthe attack. She however said that she had been informed by one of the boys with who she was in the house that he had seen Muhwezi. When pressed in cross-examination the witness attributed the statement to PW2. However PW2 denied having so informed PWI and maintained that he only identified the Accused. That he did not identify the second attacker. It must be appreciated that two attackers were seen at the scene of crime. The identity of the second attacker was not given by any of the two eye-witnesses. Further there were two boys in the house, PW2 and Dedus. Dedus did not testify and there is no evidence whether Dedus identified anybody among the attackers. The evidence before court shows that there is doubt whether Muhwezi was at the scene of crime but doesnot show any doubt whether the Accused was positively identified by any of the two eye-witnesses. ^I fail to find any inconsistencies or contradictions in the testimony of any of the prosecution witnesses as to the identification ofthe Accused.

In his defence the Accused denied having committed the offence. He denied having gone to Busingye's home the day prior to the night of the attack. He however stated that on lOlh October 2001 he had passed by Busingye' home and while along the road he had seen Rwadabwe's bull and asked members of Busingye's family whether the bull could mate. He went on to account for his movements in the day. That when he reached home he stayed there until midday when he went to his other kibanja to load bricks where he stayed until 7.30p.m. He went back home via one Sam Mugisha's

home and arrived at his home at 8.30p.m. had supper and went to bed at around 9.00 p.m. He was woken up by the arrest team in the morning of 11th October 2001. In her statement PW1 stated that they were attacked on 11th October 2001 at 10.30 p.m. Basing himself on the Accused's statement that he was arrested in the early morning of 11th October 2001 and PWl's testimony that the attack was of 10.30p.m of ¹ ¹th October 2001 Counsel for the defence argued that PW1 must have had already been arrested and contended that he could not have been at the scene of crime. With due respect to Counsel his contention was without proper evaluation of all the evidence before court. A proper evaluation of all the evidence shows that the .attack was in the night of 10th / 11th October 2001. PW2 testified that that night he went to bed at around 10.00p.rn and the attack was between mid-night and l. OOa.m of 11th October 2001. PW2' testimony in this regard is corroborated by that of PW3 whose testimony is that he received the report of attack from PW2 and Dedus at around 1.00 a.m. in the night of the attack. There is further corroboration in the testimony of PW4 that they received the report of the attack when PW1 was being taken to hospital at between 2.00 a.m. and 3.00 a.m. and that early the following morning at 7.00a.m he with others arrested the Accused from his home. This witness gave the date of arrest as lllh October 2001. Considering the African culture of timing clearly this was a confusion of dates by PW1. When she talked of 10.30 p.m of ¹ llh October ²⁰⁰¹ she must have went ¹⁰lh October ²⁰⁰¹ after which time according to PW2 the attack was between mid-night and 1.00 p.m of 11th October 2001.

Il is the Accused's testimony that after supper at 9.00 p.m of 10lh October 2001 he went to bed and early the following moving of 11th October 2001 he was arrested. Thereby the Accused raised the defence of an alibi. It is settled law that an accused person who puts formal an alibi as an anaver to the charge against him doesnot assume any burden of proving that answer. The burden reverts to the prosecution to prove that the Accused was at the scene of crime and not at the different place where he claims to have been. See: Mushukoma Watete alias Peter Wakhokhat & other v/s Uganda SCCA No, ¹¹ of 2000,

^I have carefully considered the Accused' alibi in light of the testimonies of prosecution witness and ^I in agreement with the gentlemen assessors ^I find that the evidence of the prosecution witnesses squarely places the Accused at the scene of crime during the commission ofthe offence.

In the final result I find that the prosecution has proved beyond reasonable doubt that the accused participated in the robbery. ^I accordingly find him guilty of aggravated robbery

Contrary to Section 285 and 286(2) of the Penal Code Act as indicted and he is accordingly convicted.

*Lam* vW. *Mukasa Jlllfg*

*11/2/2005.'*

Court: SENTENCE:-

Having found you RUHWEZA IBRAHIM alias HIGH CLASS guilty of Aggravated Robbery C/S 285 and 286(2) of the Penal Code Act there is only one sentence authorised by law and that is death. You are sentenced to suffer death in the manner authorised by law.

*Lame\** iV. *Mukasa*

*Judge. 11/2/2005.*