[2024] UGHC 1258

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT NAKASEKE**

**HCT-17-CR-SC- 0099-2024**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION**

**VERSUS**

**SEMATA GODFREY alias KAWANGA ::::::::::::::::::::: ACCUSED**

**BEFORE HON. LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person is indicted with aggravated robbery. It is alleged that on 21.8.2021 at Nkuzongere cell Semuto, the accused robbed Sewaguma Fred Mulekwa cash worth 8 million, two mobile phones and used a deadly weapon to wit a panga and crow bar immediately before or after thereby causing grievous harm on the said Mulekwa Fred. On 28.5.2024, the accused pleaded not guilty. Kyalimpa Evelyn and Mwesigye Samuel were appointed assessors. Prosecution was represented by Kukundakwe Arthurton, Senior Resident State Attorney while the accused person was represented by Damba Emmanuel, counsel on state brief. 2. The state had a duty to prove beyond reasonable doubt the following ingredients; 3. Theft of property 4. Possession of a deadly weapon 5. Causing harm to the victim 6. Participation of the accused 7. Theft of property, use of violence causing harm to the victim and possession of a deadly weapon 8. Prosecution replied upon three witnesses to prove their case. The key witness was PW1 Mulekwa Fred aged 50 years, trader and farmer and resident of Semuto Nkizongere LC1. An evaluation of his testimony is that he used to see the accused person on mobile disco music vans where he acted as the DJ and had seen him do this for the last three years. On 21.8.2021 at 12.15 a.m, he was asleep, when he was awakened by the sound of his four dogs barking. He heard the attackers hit cars, break open the doors and they entered the house. 9. He heard the attackers ask his sister in law for the owner of the house and then heard them enter the children’s room where they demanded a phone from his daughter. 10. Three men then entered his bedroom, tried to hit his head but ended up hitting his arm with an iron bar and at this point he heard the voice of the accused shouting that they should not kill me. According to Mulekwa, he recognized it was the voice of the accused person whom he heard often speak at functions and shout through a microphone on the mobile vehicles. He gave them cash of 8.5million UGX. 11. It was Mulekwa’s testimony that the attackers were in the house for 35 minutes and in the morning, he recognized the accused from the CCTV footage wearing a red T-shirt with a hoody which shirt he often wore while shouting on the mobile music vehicle. 12. Worthy of note is that in cross examination, the testimony of the witness is that he did not see the accused in the night but saw him on the footage which was retrieved by police officers. Furthermore, that the attackers had with them crow bars and that although the attackers disconnected the power, the solar lights were on. 13. The other testimony is that of Katumba Edward Balemezi, 41 years old, resident of Semuto and defense secretary. Katumba knows the accused as Sematta alias Kawanga a DJ. On 21.8.2021 at midnight, one Segawa John, employee of the complainant called him to report the attack. He arrived at the scene after the police had already arrived and found when Mulekwa’s hand had been broken and he was crying so he was taken to hospital. 14. In the morning at 7 a.m, the camera technicians arrived and they retrieved the footage which was screened in his presence and that of police officer in charge Namanya. According to Katumba, he identified the accused on the footage wearing a red T shirt who was later was arrested. 15. In cross examination, Katumba’s testimony is that he did not watch the footage with Mulekwa. In answer to court, Katumba’s testimony is that when he reached the scene in the night, Mulekwa was crying and he did not mention that he had recognized the accused. 16. According to PW3 Nassuna Zaina. 45 years old, resident of Kuzongere, Semuto, the complinant is her husband. Her testimony supports that of PW1 Mulekwa in as far as she narrates how their home was attacked after midnight on 21.8.2021 and the attackers broke and entered the house. The attackers beat her husband while demanding for money and broke his hand in the process. They were armed with knives and metal bars. 17. And that the attackers then asked for money which he gave them and they hit him with a crow bar (iron bar), breaking his left arm and he showed them where the money was and took eight million UGX. The attackers also stole phones, a laptops, a TV, and shoes. She viewed the CCTV camera footage with other residents of the house but did not identify anyone she knew. She also did not know the accused. 18. In cross examination, her testimony is that there was no light in her bedroom as the attackers had turned them off except that the attackers had a torch with them. It is evident from Nasunna’s testimony that although the house had both solar and umeme, there was no light which contradicts the testimony of Mulekwa PW1 that the solar lights were on. 19. The last prosecution witness was Det. Corp. Musementa Dauphine PW4 who was attached to Semuto Police station in 2021. On 22.8.2021 at 1a.m, she received a call from the OC station ASP Namanya that Mulekwa’s home had been attacked. She reached the scene and ascertained that the watchman had not worked that night. In the morning at 7 a.m, she returned to the scene and on ascertaining that the home had a camera, the footage was retrieved and they summoned the family and defence secretary Katumba to view it. 20. According to Musementa, it was the police driver Musuwati and the defense secretary Katumba who identified the accused from the footage as one of the attackers. They identified him from the red T shirt, a cap and the way he moved. 21. It was the testimony of Musimenta that they received information that three pangas ad a crow bar had been dropped one km to the home of the complainant and it was brought in and exhibited. The accused was arrested on 23/8.2021, according to Musementa. 22. Prosecution relied upon the report of the analyst from Government Analytical Laboratories (GAP) which captured the pictures from the footage. I personally was unable to make out faces of the attackers and in cross examination, Musememta reaffirmed that it was Katumba PW2 and the police driver Muswati who identified the accused from the footage. This means, Mulekwa was not truthful when he testified that he identified the accused from the footage. His only evidence of identification was the voice of the accused. 23. The report which was admitted as PExh.3 is dated 26.8.2021 does not name the people captured on camera and is therefore worthless. 24. It is now an established standard in evaluation of evidence where only one person identified the accused that the court must be satisfied that the conditions favored correct identification and worn itself of the possibility of mistaken identification. **Bogere Moses v Uganda [1998] UGSC 22 (6 July 1998)** refers. In the instant case, it is evident that there was no light in the house that night as the attackers had turned off the mains and only the attackers had a torch. 25. Although Mulekwa claimed to have identified the accused by voice, he never shared this important information with Katumba PW2 who responded to the alarm shortly after midnight. Muleekwa never shared this information while viewing the footage with Musementa PW4 the investigating officer. In fact it is one Muswati police deriver and Katumba PW2 who said it was the accused in the video. That Mulekwa was familiar with the voice of the accused without ever interacting with him at close range is weak evidence of identification. This means, prosecution has zero evidence on participation by the accused which points to his innocence. 26. Furthermore, Nasuna PW2 and her husband Mulekwa contradicted each other on whether there was light in the house that night which means, there no light in the house that night. 27. From the foregoing analysis, I find that although a robbery did take place, the accused did not participate in it. 28. In defense, the accused denied the offence and asserted that he was at home that night as it was during covid and there was lockdown. He also claimed he was arrested with others including the askari but these were released because they paid for their release while he had no means. While I am skeptical of the clam that Katumba demanded for money to ensure his release, I accept the defense that he was not at the scene of crime in the night of 21.8.2021. I also take judicial notice that a curfew was in place in most of 2021 under the Covid lockdown presidential directives. 29. In the premises, I agree with the two assessors that the prosecution has failed to prove the offence of robbery against the accused person and he is acquitted and released from custody unless lawfully held in connection with some other offence.

**DATED THIS 11TH DAY OF JULY 2024.**

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**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Kukundakwe Arthurton, resident state attorney, for the prosecution

Damba Emmanuel for the accused on state brief