[1994] UGHC 98

## Justice F.m.s. Egonda-Ntende

THE REPUBLIC ON UGINDA IN THE HIGH COURT OF UGAMDA HOLDEN AT

ARELLAL

CRIMINAL SESSION CASE NO. 70/93

PROSECUTOR UGANDAS or cocycle or second controls

VERSUS

| A1: ABDALLA MUBANGIZI | | | |-----------------------|---|---------| | A2: MNEBAZE SEZI | . | ACCUSED | | A3: MUHANGI ROBERT | | | | A4: BATARINGAYA HENRY | | |

BEFORE: The Honourable Mr. Ag. Justice E. S. Lugavizi **JUDGMENT**

The four accused persons herein called Abdalla Mubangizi (A1), Mwebaze Seize (A2), Muhangi Robert (A3) and Bataringaya Henry $(M_4)$ were jointly indicted for the officies of aggravated robbery contrary to sections 272 and 273(2) of the Penal Code.

The particulars of the indictment were that on the 17th of August, 1991, at Kijumo village in Bushenyi district, the said accused persons robbed KEKIKATU ELUANIS of her UGS. 50,000/=, and an intersonic 4 band radio cassette, all valued at UGS. 110,000/=, and at the time of the said robbery, used a deadly weapon to wit a gun on one MBEHISYA.

The four accused persons above denied the offence; and as a result, the prosecution called a number of witnesses to establish its case against them.

In brief, the prosecution case as it unfolded from the said witnesses' evidence was that on the day in issue, PM4 received visitors at her house/bar in Kijumo Trading Centre at around 6.00p.m She entertained them with a local brew called ttento, waragi and some soft drinks. These visitors included FML who, at the said time drank ttonto beer.

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At around 9\*00p.m. the merry-making above, was suddenly interrupted by Al who stormed '• PW4's house/bar. He was carrying a gun and a torch\* He then ordered everyone in the house/bar to lie down. Pb'4 and her visitors hesitated to respond j, whereupon Al shot PWl's big toe. As a result, PW1 fell down and hid himself under a bench. PW4 and the rest of her visitors then ran to thu next room where Al followed them and took UGS. 50?000/= belonging to PV/Zp\*

At this point, A2 and A3 who had also entered Ws house/ bar joined the attack. At the end of which PV)4 noticed that in addition to her money, also her intersonic radio cassette had been stolen by the said attackers.

Further, both PW1 and PU4 told court that there was light in the house/bar at the time of the attack.

The above story was also supplemented by the evidence of PW2, PW3, B75 and

PW2Ts evidence was bo the effect that ho took a charge and caution statement from A3. The said charge and caution statement was a confession on A3's part in which he admitted having committed the offence in issue with /CL, A2 and A4\*

For the time being, I think it would suffice just to point out here that I admitted the said statement in evidence\* I will return to this part of evidence in greater detail later\*

The gist of P.73 7s evidence was that in May, 1992, when Al, A2 and A3 wore taken to court in Bushonyi, they pointed out to him A4, and said thc.t ho also participated in the offence in issue\* At that time, A4 had taken food for the rest of the accused persons.

PW3 accordingly arrested A4 and joined him (with the rest of the accused persons) to bhu charge herein.

P<75's testimony was to the effect that on 28th August, 1991? Al and A3 led him to Rutoma village where he recovered a gun.

Finally, PW7 related to court that while acting on a tip, he was able to arrest Al and A3 whom he found with PW4's stolen radio. This happened on 19th August, 1991•

At the end of the prosecution case, the defence counsel (Mr, Kwizera) submitted that there was no case to answer in respect of all the accused persons. Mr. Kwizera felt that the prosecution evidence was generally unreliable. There had been no proper identification of the accused persons by the alleged eye witnesses (that is to say, PW1 and PW4) and that further, all the vital exhibits were not put in evidence.

The State represented by Mr. Wagona conceded as far as A4 was concerned, but was of the view that the prosecution had made ou a prima facie case against Al, A2 and A3-

In my brief ruling, I agreed-with Mr. Wagona that there was no case made out against A4-

I was of that view, because apart from the alleged confession or admission of the offence on A3!s part, in which he implicated A4 (and the rust of the accused persons) the only other piece of evidence which also tended to implicate A4 was that of PW3 who told court that he arrested A4 because Al, A2 and A3 pointed him out as a participant in thu offence herein^o

However, since thu above two pieces of evidence- came from fellow accused persons, they required corroboration before they could be acted upon to A4's detriment. (Sec Fabiano Obeli and others v. Uganda [<i965lE.fi> 622; Joseph s/o Jeremiah v. R[1954j 21 SACA 279-); and Uganda v. Shah [1966JE. A 30.

Obviously, the required corroboration was not on record. I therefore had no hesitation in agreeing with Mr. Wagona that there was no case made out against A4 and releasing him at that point.

As rer^rds /J., A2 and A3, I also agred with Mr. Wagona that the prosecution had made out a prima facie case requiring the said accused person to be put on their defence.

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This was mainly because in addition to the identifying evidence of PW1 and Pv74? I felt there was sone other substantial evidence (in the fora of PW5fs and PVJ7's evidence) implicating the accused persons (See Bhatt v^o R[1957]E. A. 322 and VJabiro alias Musa v. R[196O]E. A\* 1D4 on what amounts to a. prima facie ease).

In their respective defences given net on oath, the three accused persons above, denied the of.once in issue, Al and A2 in addition set up alibis.

According to Al he was at home- on the night in issue. In this he was supported by his mother DW1 who testified to that effect,

A2 told court that on the night in issue he was at work.

DW3 supported A2 in his alibi by saying that both himself and A2 wore working at a Chinese road construction situ which was 25 kilometres away from the scene of crime on the night in issue.

Lastly, also DW2 told court that Al and A3 were arrested and taken away from her home, but that they were not found with any radio at the time.

In my summing to the assessors, I explained to them, among other things that the burden of proof in criminal cases lies on the prosecution from the beginning to the end to prove its case agai^gt the accused beyond reasonable doubt; and that this burden never shifted to the accused even where ho .put up an alibi (sec Wool.ri ington v DPP [1935]A,C 462; Uganda v, Ssctumba Richard Cr. Session Case No. 152/91; Leonard Aniseth v, R [1963[S. A. 206 and Sckitolcko v Uganda [1967[E. A, 531«

As far as the offence of aggravated robbery is concerned, the prosecution in this case had to prove the following ingredients,

(a) that UGS. 50,000/= and, an intorsonic 4 band radio cassette the property of P?J4 wore stolen on the night in issue;

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- (b) that at tno time of the said robbery, a. deadly weapon, bo wit a gun, was used; and - (c) that the accused persons (iou Al, A2 and A3) participated in it.

According to the evidence of PW1 and PW4, PWA's houso/bar was stormed by robbers on the night in issue. The said robbers shot FW1 in th.e foot, demanded and took away the sum of UGS. 50,000/= from 1W4. They also made off with RJA's radio casette,

I am satisfied that the above witnesses were not shaken on the above aspects of the cs.se. 1 also believe that despite the fact that no medical evidence was produced to confirm the injury PW1 sustained during the said attack, the two witnesses above were believable in that area. Further K/6 (the RC1 chairman of Kijumo village) also confirmed having found Phi lying on a mat, soon after the offence in issue, bleeding frmii his left foot.

In view of the above therefore, I have no doubt that the prosecution has successfully proved the first two ingredients (above) that is to say, that UGS. 50,000/= and an intcrsonic 4 band radio casette, the property of PW"4 were stolen on the night in issue, and chat at the time of the said robbery a deadly weapon to wit a gun, was used (Indeed the definition of a deadly weapon in section 273(2) of the Penal Code Act includes a gun. Such a gun does not necessarily have to be tested t- pr-ve th it i is capable of firing bullets. As long as the evidence shows that it was fired during the attack, that would appear to bo sufficiun sec V/asaja v Uganda [1975]E. A. lol.)

Aitor re^2^1^n^the above conclusions, what now remains to be sorted cut is the issue of the accused persons¹ participation ¹¹¹ the .offence herein. Did Al, A2 and A3 really participate in ohu offence in question?

I will begin with A3•

According to PW1, A3 was one of the robbers who attacked them on the night in issue., PU1 told court? that ho knew A3 before the incident in issue and was able to recognize him because there was light from a lantern.

Further, one of the accused persons had a torch which he was flashing around.

It also seems from PWl's evidence, that the incident in issue, took a fairly long time. I am of that view, because this witness said that the lantern earlier referred to was later extinguished by one of the robbers thirty minutes after they had stormed PWA's house/bar.

From the above, it looks like Pblfs identification of A3 was reliable. However, it is important to note that the whole incident took place at night. A gun was fired at the time⁵ and P7/1 was a victim of that attack. Except for the first few moments of the incident in issue, this witness was lying under a form for the rust of the time suffering from the p<?tin brought by a. bullet wound on his foot which was bleeding.

Secondly, PW1 had been drinking a native brew called ttonto from 6,00p.m until 9.00p.iii the time of the attack. Despite the fact that he claimed during the hearing that ho was not drank at W the time of the incident, I am not. quite sure whether he was in a position to see things in their correct perspective at the time.

My fears above wore increased when I also noticed some rather disturbing contradictions between his evidence and that of PW4 concerning the source of light at the time of the offence and also the point at which the sail light was disturbed.

According to P?/l, the said light was a lantern, and it was extinguished 30 minutes after the entry of the robbers. However, Pv74 differed. According to her, the only source of light in the house/bar at the time of the attack was a native lamp (tadoba) which was extinguished 5 minutes after the attack. Apart from the fact that TW4 told court that she did not drink any beer herself that evening (and therefore the impression was that she was sober at the time of the attack) she was the owner of the house/bar and certainly know better then FWI what kind of lamp she had in her house/bar on the evening in issue.

Concerning the above contradictions therefore, I am of the view that it was PWA who was telling the truth.

To crown my fears concerning PMI's alleged identification of 13, according to PWG, when he visited the scene of crime soon after the said offence was committed, and spoke to all concerned at the time including FW1, no one implicated A3.

In view of that revolation therefore, it would come to mind that PW1's alleged identification of 1.3 was most unreliable. It best it was an afterthought which was probably only based on suspicion.

As a result of the above therefore, I have no finding hesitation in $\angle$ , that the above evidence which tended to implicate A3 is valueless.

The next piece of evidence which implicates A3 is the confession which PW2 allogedly received from A3. TW2 who allogedly received the said confession was at the time receiving it a

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Detective Inspected of folico. He was the:, ofore competent voider receive ~ Section 24 of the 'Jviduncu Act (as omended by Act 2 of 1935) to/ a confession. However, during the kearir ^j just before the prosecution put the said confession in evidence the accused tlirouhis counsel bwezira strongly objected to its beinj put in., ⁰¹² the ground that the accused did not si^ji such a statement, and did not even know J?t72 who was claimin'- to have taken it from him Habters were further complicated whom PV72 Jains elf foiled to identic A3 sayinj it v/as a lory time since he received the said statement from him and could net remember him

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Since A3 was .pot questioning the voluntariness of the above statement, but was completely denying it as one he did not knew or make, I decided not to hold a trial within a 'trial in respect of it. I however, adiritted it in evidence as ''Exhibit P1:I with a view to deciding, its evidential value later on after all the evidence in tlas case had been received.

In view cl the fact that t^v\*u burden of proof remains on the prosecution all tho tine, after the above, I expected the prosucut: to produce evidence, one way or the other to confirm. that A3 actually signed th, said statement. However, the prosecution did not do that. mi.uy loft the situation exactly as it was at the point of the said denial of ths confession by A3\* I therefore h.^m no choice now but to resolve the doubt created, in favour of A3\* This effectively naans that I will not attach any importance tc th said confession in t.-iis case.

Evon assui?an.2 that ny conclusion above was vzreny and that indeed A3 was just denying the above confession for the sake of it atJ0,in ; I would co:n." tc the sane csiic .usicn as the one above, after scarc/jj.ny the suz3?oundinfj circuriusta-.cos of the nllo.j'ed confession as is required by law in the <co.su> of a repudiate'-! confession. Sec fuwanoi v. u.-yuida 3/. This is particularly so whe there is on record evidence sac.' as fWVs w-iich tends to raise

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suspicion that probably A3 was just being framed.

The remaining two pieces of evidence implicating A3 with the offence herein, were PwJ and evidence• While PW5 claimed at the hearing that A3 (and another) led him to Rutonia village on 2oth August, 1991, where he recovered a gun, PW7 testified that as a result of a tip, he went and arrested A3 and another on 19th August, 1991, whom he found with PWA's radio.

Apart from the fact that the circumstances under which the above two operations were carried out by PWf> and PW7 were lamely and unconvincingly explained in court, the said gun and the radio were • not exhibited. In fact I am of thv view that even if they had been exhibited, they would not have enhanced the value of R75's and PJ7'^s evidence.

As far as the gun was concerned, there was no proof that it was the same weapon which was used at the time of the offence in issue^&lt;

As regards the radio, it was oven doubtful whether the radio the prosecution tried to exhibit was the same radio which PW4 said she had lost on the night in issue.

Zigain on the same issue, the evidence of DW2 which was to the effect that at the time of A3'^s arrest, no radio was recovered from him also tended to create doubt about PW7's evidence above. DW2 was not contradicted or shaken as far as that area of her evidence was concerned^e

The sum total of tho above is that, again, I would put no value upon PV/5rs and PW7's evidence as against A3.

With the above- in mind, it is evident that nothing now reamins in the prosecution case to implicate A3.

As far as 42 is concerned, there was first of all PWl's evidence of identification which implicated him. However, as was shown above, PWlfs evidence of identification was unreliable and could not be used against A3\* Equally so, it cannot be used against A2^t

Tho above then leaves us wxtli only A3's confession whose fate has also already been discussed above. Since it could not boused

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against A3, it cannot also be Used against A2 who io in fact a co-accused.

The above part, A2 raised ar. alibi which was supported by his witness DW3. T f. cl this .alibi tec. was not destroyed by the proseetuion, The prosecution has a duty to destroy any alibi set up by the accused (Se-u Sekitoloko v Uganda supra).

Lastly, as far as Al, is cm.'.corned, his situation is rather different. Both PW1 ar.d PVZ4 claimed to have identified him as one of their attackers.

However, as already soon above. BYdl's evidence of identification is unreliable. This would leave PW4's evidence as the only^^ oviddfico worth considering in respect of A-|'s identification, cut it should be ranonber^d that at this point, PW4! s said evidence would bo evidence of a single witness identifying an accused person during difficult circumstances, that is to say? the offence took place at night, the lighting was poor, a gun was fired and someone was injured.

According to the case of ^av Republic Zl"S627E. A, 583 PW4\*s evidence of identification would require corroboration by sone other independent evidence before being acted upon safely,

The question to resolve therefore, would be whether there is such evidence now on record, particularly after discounting A3's alleged confession, P\75's. and PW'^s evidence which pieces cf evidence implicated A1 (and ethers) with the offence in issue.

The answer to the above question is that there is no such evidence, Purth^r, ¹ also feel that A1'^s alibi which was supported by his mother DW1 was not destroyed by the prosecution,

]?ron the above therefore, it is clear that the prosecution did not succeed in proving that A1. A2 and A3 participated in the offence in issue, and for that reason,and in agreement with Mr, Itutalruba the assessor, I acquit then of the offence herein

and order that they should be set free inmediately unless they are being held on some other lawful charges.

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Edway is

E. S. Lugayizi Ag. J U D G $\mathbb{E}$ $15/8/1994$


Road before:

$\Lambda$ 1, $\Lambda$ 2 and $\Lambda$ 3

Mr. Kwezira for accused persons

Mr. Bagona for State

rir. Baguna C/clork.

Estregayiza

E. S. Lugayizi Ag. JUDGE $15/8/1994.$