[2025] UGHC 112

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA CRIMINAL SESSION CASE NO. HCT-16-CR-SC-0195 OF 2024

(Arising from Kagadi Criminal Case No.853/2023; CRB No. 1154/2023)

#### UGANDA================================PROSECUTION VERSUS

SSEKATE DEOGRATIUS===========================ACCUSED

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

### **JUDGMENT**

- The accused Ssekate Deogratius was indicted with the offence of $[1]$ Aggravated Robbery C/ss 285 & 286 (2) PCA. It is alleged that on the 25/10/2023 at Kyetera Cell, Mabale Town Council in Kagadi District, the accused and others still at large robbed Nakawesa Shamilah of her bag which contained cash **shs.9.668,000/=** (Nine million, six hundred and sixty-eight thousand shillings), an Itel mobile phone and a Centenary bank tap machine all valued at $9,778,000/$ = (Nine million, seven hundred and seventy-eight thousand shillings), and at or immediately before or after the said robbery used a deadly weapon to wit a gun on the said Nakawesa Shamilah. The accused pleaded not guilty to the offence. - It is the prosecution's case that on $25/10/2023$ , at the closure of the $[2]$ business of the day, Bingi Caroline, a sales manager of Mr. Irumba **Robert** in the business of motor-cycle sales and mobile money operations and agent banking at Mabale Town Council, Kagadi, took the proceeds of the day to Irumba's place. At Irumba's place, she found Irumba's grandmother, a one Nabakka who was the one usually at home and used to receive the proceeds seated outside on the verandah, handed over the bag to her and then left. **Nabakka** in turn gave the bag to **Nakawesa Shamilah** with instructions to take it inside the house and place it on a chair that was in the corridor of the house. **Nakawesa Shamilah** did as instructed. However, as she returned from the house, she saw 2 boys come. One had a sweater with a hood covering the head and another was without. They greeted those present and thereafter, the boy with a sweater pointed at her with a gun and demanded for the Page $| 1$

bag she had just been given to place in the house. As she fumbled to tell him where the bag was, the $2^{nd}$ boy entered the house but failed to locate the bag. It is then that the boy with the gun pushed her inside the house and out of fear, she directed him to the bag.

- The 2 boys searched the bag, removed the machine tap and bundles of $[3]$ money and then threw the bag to **Nakawesa**. They then took off with the money and the tap machine. Immediately thereafter, she rang Mr. **Irumba** and also alerted the builders who were around. The builders unsuccessfully pursued the boys/thieves but were able to recover the tap machine which the thieves dropped while fleeing. - Later, the accused who was on the wanted list by police because of the $[4]$ many robberies he had conducted was located in Kasanda in Mubende District and was arrested. Upon an identification parade carried out at Kagadi police, Nakawesa Shamilah identified him out of other suspects in the parade line as one of the boys who had on a sweater with a hood covering the head that robbed her of the bag. - In his sworn defence, the accused who hails from Mabungo Village, $[5]$ Kagadi Town Council testified that he was operating betting machines in Lugingi village, Kitemba sub-county, Kasanda District. He explained that on the fateful day of $25/10/2023$ when it is alleged the robbery took place, he was at his work place in Lugingi village, Kasanda and he brought a one **Ategeka Margaret** who operates his betting machines to support his alibi. **Ategeka Margaret** testified that she was with the accused at the work place on the $25/10/2023$ till midnight when they parted, each of them going to his/her respective sleeping places.

### **Burden and standard of proof.**

In all criminal cases, save where the statute is to the contrary, the $[6]$ prosecution has the burden of proving the case against the accused person beyond reasonable doubt. The burden does not shift to the accused person and the accused person is only convicted on the strength of the prosecution case and not on the weakness of his defence; **Ssekitoleko vs Uganda [1967] E. A 531.** Proof beyond reasonable doubt though does not mean beyond a shadow of doubt,

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the standard is satisfied once all the evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, Miller vs Minister of Pensions [1947] 2 ALL ER 372.

- In a charge of Aggravated Robbery, the prosecution has the burden of $[7]$ proving each of the following elements beyond reasonable doubt. - (1) Theft of property belonging to the victim/complainant. - (2) Use of violence or threat of use of violence during the theft. - (3) Possession of a deadly weapon during the theft. - (4) Participation of the accused in the commission of the offence.

See Uganda vs Aryampa Jackson & ors, H. C. Crim. Session No. 166 of 2012.

- $1^st$ ingredients of the offence; theft. - According to Section 254 PCA, theft is committed when a person [8] fraudulently and without claim of right takes anything capable of being stolen. In the instant case, it is the evidence of Nakawesa Shamilah (PW2) that on the $25/10/2023$ at around 6:20pm, she was at her uncle's place, a one Irumba, when Irumba's sales manager of motor-cycle sales and mobile money and agent operations, a one Caroline Bingi, brought home the day's sales in a bag and upon placing the bag on a chair inside the house in a corridor, she was attacked by 2 boys, one armed with a gun who demanded for the bag which she surrendered by directing the boys where it had been placed. Thereafter, the 2 boys/thieves, removed bundles of money and a tap machine for bank transaction and left the bag behind as they fled the scene. The thieves however dropped the tap machine as they fled. Immediately thereafter, Nakawesa Shamilah rang her uncle, Irumba and informed him of the theft. - **Irumba Robert** (PW1) testified that upon receipt of the information $[9]$ from PW2, he alerted the nearest police of Mabale and the Kagadi DPC of the theft for help. When he contacted his sales manager, Caroline **Bingi** (PW4), he was told that she had after closing the day's sales delivered to his home $15m/$ = (comprised of cash amounting to **9.688,000/=** and "float" money all totalling to $15,348,588/$ =). PW1's

evidence was corroborated by that of Bingi Caroline (PW4) who brought the bag that contained the money and the tap machine.

[10] The defence did not challenge the above evidence as regards the existence of the stolen bag that contained money and the tap machine and their being taken from PW2 without a claim of right. As a result, I find the 1^st ingredient of the offence proved by the prosecution beyond reasonable doubt.

## $2^{nd}$ ingredient of the offence; use or threat of use of violence:

[11] It is the evidence of Nakawesa Shamilah (PW2) that the bag that had the money and the tap machine were stolen from her by threat of a use of a gun. The gun was never recovered. PW2 however described the gun as one that resembled guns that are used by Securiko people who guard shops implying that indeed, she knew how guns looked like. It is immaterial that what she saw may have been an actual gun or an imitation of it, see S. 286(3)(a) of the Penal Code (Amended) Act, 2007.

Indeed, this is what was also reported to police and as the accused himself testified, upon his arrest, the police flying squad allegedly pierced him with a metal while demanding for the gun he allegedly used during the said robbery.

#### [12] **PW2** testified in particular as follows:

"I took the bag and placed it on the chair in the house and returned outside... It is then that I saw 2 boys come... The 2 boys greeted us, after replying them, the boy with the sweater pointed a gun resembling those being used by Securiko people who guard shops and then demanded that I give him the bag that I had just been given to place in the house. As I fumbled to tell him where the bag was, the $2^{nd}$ boy entered the house and when he announced that he had not seen the bag, the one with the gun pushed me inside the house and out of fear, I directed them to the bag"

[13] Clearly, the above evidence is proof of use or threat of use of violence used during the theft. The pointing of a gun at her is sufficient lest, if she hesitated or refused to oblige to their demands, she believed she would be shot.

[14] From the foregoing, I do find that there was use of threat of use of violence during the theft. This ingredient of the offence has been accordingly proved beyond reasonable doubt.

# 3^rd ingredient of the offence; possession of a deadly weapon:

### [15] A deadly weapon is defined to include:

"Any instrument made or adopted for shooting, stabbing or cutting and any imitation of such an instrument which, when used for offensive purposes is likely to cause death".

See S.286 $(3)(a)$ PCA (supra). In the instant case, as already established, the assailants used a "gun". It is immaterial whether it was an actual gun or its imitation. The prosecution's failure to have the gun recovered is not fatal to the prosecution case.

[15] As a result, I am satisfied that the offender(s) were in possession of a deadly weapon, to wit a "gun" which was used during the theft of the complainant's money and property hence the offence of aggravated robbery is found to have been proved beyond reasonable doubt.

### 4^th ingredient of the offence; participation of the accused person in the commission of the offence:

[16] As per the evidence of Bingi Caroline (PW4) who brought the bag containing the money and the other items which were stolen and Nakawesa Shamilah (PW2), the offence was committed at around 6:20pm. According to PW2, the sky was still bright and a person could easily identify another. As regards the identification of the accused, she explained that the accused was putting on a brownish shirt and a grevish sweater with a zip but not zipped - hence this explains why she was able to see the shirt. That she identified the accused because, though he had a hood of the sweater on the head, the face was not covered and therefore available for her to properly see since he is the one who stood next to her during the robbery compared to his colleague who stood at a distance. I warn myself that she is a sole identifying witness and therefore her evidence needs to be approached Her identification of the assailant however was with caution. confirmed during the identification parade when she once again pointed at the accused as the one who attacked her during the robbery.

- [17] When it came to the identification of the accused during the identification parade, D/Insp. Mugisha Yoabu (PW3), an officer above the rank of Assistant Inspector of Police (AIP), explained how he picked the accused and other 7 suspects of the same size, height and age and after explaining to them the purpose of the parade, paraded them in a line with positions of their choices and Nakawesa Shamilah positively identified the accused. I find that PW3 though not meticulously, properly followed the rules governing the conduct of identification parades as stated in Ssentale vs Uganda [1968] 1. EA 365, i.e. the accused was informed that he may have an advocate or a friend of his choice present during the parade, the officer-in-charge of the case did not participate in the parade, the accused including other persons in the parade line were 8 in number and the accused was placed in a position of his choice and the witness pointed at the accused as the assailant, see the Identification Parade Report (P. Exh.2). - [18] In his defence, the accused claimed that in the first instance, on the fateful day, he was in Lugingi Trading Centre, Kasande District where **Ategeka Margaret** (DW2) he was operating his betting machines. testified to support the accused's alibi. Then, secondly, that because his photo had been shared by police officers and that at a certain stage, he found the said Nakawesa Shamilah in the O. C. CID's office and therefore, that she must have been brought to the attention of the accused, I find no evidence to support such claims. The accused did not put these claims to PW3 during cross-examination so as for him to either refute or accept them. - [19] It may be possible that his photo could have been shared by police officers since he was on the wanted list by police for having conducted many robberies, but again as I have observed, during the trial, when both D/Insp. Mugisha Yoabu (PW3) and the investigating officer AIP **Chemonges Chebet** (PW5) testified, this issue or claim was not put to them during cross-examination so that they confirm or make the

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necessary clarification. The same apply to his alibi. It was neither put to any of the prosecution witnesses during cross-examination.

- [20] Therefore, though it is trite that by setting up an alibi, an accused does not assume the burden of proving its truthfulness so as to raise a doubt in the prosecution case, Cpl Wasswa & Anor vs Uganda C. C. Crim. Appeal No. 49/1000, if a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can lest it be regarded as a mere afterthought, see Uganda vs Aryampa Jackson (supra) and R vs Sukha & Ors [1939] 6 EACA 145, - [21] In the premises that the accused person did not put his alibi and claim that his photo had been shared among police officers and that he had prior been shown to the victim who intended to identify him during the identification parade, I find the foregoing claims being a mere afterthought. - [22] Nakawesa Shamilah (PW2) properly identified the accused as one of the assailants because it was still early enough i.e. 6:20pm for a proper identification since the sky was still bright. I found PW2 genuine and truthful on this aspect of identification. This was proceeded by the PW2 identifying him during the identification parade which the accused himself concede to had been properly conducted. In his defence, he stated thus: -

"Then I was eventually placed on identification parade organised after about 8 days of my detention. I was made to stand with other strange men in a line and this girl called Shamilah was brought. As she moved around, she pointed at me from others in line as the one who attacked her".

[23] In conclusion, I find that PW2 placed the accused at the scene of the crime. The accused's defence of alibi and his photo having been shared among the police and the victim, having been shown the accused prior to the identification parade are accordingly rejected for being not true and as a result, in disagreement with the honourable lady and gentleman assessors, I find that the prosecution has proved beyond reasonable doubt that the accused participated in the commission of the offence charged and he is found guilty of the offence and he is convicted accordingly.

Dated at Hoima this $24^{th}$ day of **January**, 2025.

. . . . . Byaruhanga Jesse Rugyema<br>Judge