[1994] UGSC 43

IN THE SUPREME COURT OF UGANDA

HON OBER JSC

## AT MENGO

(CORAM: MANYINDO, D. C. J., ODER, J. S. C., & PLATT, J. S. C)

## CRIMINAL APPEAL NO. 9/93

**BETWEEN**

ZAKALIA KACOCORO :::::::::::::::::::::::::::: APPELLANT

**VERSUS**

UGANDA :::::::::::::::::::::::::::::::: RESPONDENT

(Appeal against conviction and sentence of the High Court decision holden at Fort-Portal. (Hon. Mr. Justice I. K. Mukanza) dated the 10th day of October, 1992.)

HIGH COURT CRIMINAL SESSION CASE

$NO. 48/1990$

## JUDGMENT OF THE COURT:

$\mathcal{A}^{\mathcal{A}}_{\mathcal{A}}(\mathcal{A})$

The Appellant was convicted of Robbery contrary to sections 272 and 273(2) of the Penal Code, and sentenced to death.

The brief facts of the case as found by the trial court, were that the Appellant and his co-accused Rufunda, had broken into the shop of Matya Basima (2P. W) on the night of 20th September, 1985. Matya's shop is located in Nkaka village in Kabarole district. The attack took place at around 10.00 p.m when Matya was-asleep in the house, as well as his brother James

Kateligwa Rusoke (4P. W.) and others. At first Matya and James defended the shop being armed with a panga and spear respectively. The assailants, on secing that Matya and James were armed, retreated for about 100 metres on the road and re-grouped themselves. In this interval, Matya and James were able to leave the house and hide themselves nearby. It was a clear night with bright moonlight. Matya was hiding behind the bark-cloth tree, about 15 metres from the shop, and James was hiding in a small bush about thirty metres from the shop. as the robbers returned in two groups. The first group was led by the Appellant Zakalia Kacocoro, who was armed with a gun. Rufunda, the Appellants' co-accused, led the second group who came to the side of the shop. The Appellant and Rufunda were together with a group of about 10 other people, who were armed with pangas and sticks. The two groups joined and entered the house after the Appellant fired his gun in the air. The Appellant remained outside guarding the scene. He fired his gun a second time; and then when they had taken what they wanted from the house, they began to go away. James, who had taken cover in some elephant grass, threw his spear at a man called Kahwa, which pierced Kahwas' neck. The Appellant and others

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came and collected Kahwa and went away. Matya went back to the house, and, luckily, James' wife and children were found safe in the house. Matya checked his shop and found 25 gomesis, 13 packets of cigarettes, 4 dozens of girls' dresses, 1 weighing scale, and 4 packets of match boxes all missing. The robbers had also taken plates, and a Radio belonging to James.

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Matya reported what had happened to his neighbours, and alleged that the Appellant, together with Kahwa, Mugume and Rufunda, had been the people who had taken part in this robbery.

It happened that when James was throwing his spear at Kahwa, James fell down and hurt himself. The following day, 21st September, 1985, Matya was taking James to the dispensary for treatment. On the way he met the Appellant near Rwakeiro carrying cigarettes wrapped in paper. Matya asked the Appellant whether the Appellant could sell him some cigarettes; but the Appellant and one Nyakahuma told Matya to mind his own business. Therefore after taking James to the dispensary, Matya came and contacted Mr. Byabona, who was at that time in 1985, the NRM Political Mobilizer. There was no police force at that time. This witness (P. W.1) acknowledged that he had received this

report, on 21st September, 1985, and that Matya had identified the Appellant as well as Kahwa, and Rufunda. Mr. Byabona decided to visit the scene at Matya's house, and there he found the rear door broken, and some stains of what seemed to be blood, which was said to have come from Kahwa, after his neck had been pierced. He found two identity cards in the house, and then went back to organise the arrest of the Appellant. Mr. Byabona and his people had taken over the Police Station. He organised two members of the Local Administration Police to accompany him, and $\mathtt{taking}$ the complainant Matya also with him, they went in search of the Appellant.

At 11.00 a.m Matya recognised the Appellant who was there standing on Kagume Hill. When the Appellant saw that he had been seen, he fired two bullets at them, and then he, the Appellant, disappeared. Mr. Byabona's group had no gun, and so they went back to the station. An announcement was made requiring all the people who knew the robbers, and those who had a gun, to report to him. Kahwa and Kabaseke came and reported to Mr. Byabona, because the latter had the identity card of Kabaseke, and Mr. Byabona could see the wound on Kahwa's neck. Later Kahwa died and Kabaseke disappeared. Mr. Byabona came to Fort-Fortal and contacted

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Commander Sheme Sheme. They went to Rufunda's house, where his group put up some resistance. Later in February, 1986. Mr. Byabona arrested the Appellant, who was hiding in a small forest at Kinyenyi village. On the 17th November, 1987 Rufunda was arrested. But later on he died. Mugume who had been alleged to have taken part in the robbery, also died. The wife of James has also died.

It is not clear what has happened to Kabaseke. So it is that. Appellant remains alone on this charge, which originally had been brought against the Appellant, Kahwa, Kabaseke and Rufunda.

The learned Judge accepted the evidence of Matya and James, that they had known the Appellant very well before the incident, and they had recognised him in the bright moonlight on a clear night. It was clear to the learned Judge, that Matya's shop had been broken into and articles stolen. Matya had made an immediate complaint naming the Appellant, and several other people. Matya had also helped in arresting the Appellant, who had at first evaded arrest by firing at Mr. Byabona's arresting party. Altogether the Appellant had been identified as the robber, who had fired a gun twice at the scene of robbery, and had used a gun later during his arrest. Consequently, the learned Judge

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held that the Appellant had used a deadly weapon to effect this robbery, and so convicted bim of the offence charged.

The Appellant now appeals, and the first point taken was that no deadly weapon had been used. The argument was that as no gun, nor bullet, nor empty cartridge had been exhibited, it was not certain that the Appellant had used a deadly weapon. While it would have been of advantage if the gun, bullet or empty cartridge could have been found, nevertheless, the evidence of both Matya and James proved that a gun had been fired.

The Gun was therefore in a condition to cause death, or was likely to cause death as section 273(2) of the Penal Code describes a deadly weapon; (see <u>WASAJJA</u> vs <u>UGANDA</u> (1975) E. A. 181; (<u>SHABAN</u> BIRUMBA vs UGANDA Criminal Appeal No. 32 of 1989 unreported). In the circumstances of this case it is not surprising that no exhibit was found, as indeed, the Appellant had been arrested some months later after the incident.

The second ground concerns inadmissible evidence. The argument was that the learned Judge accepted all the evidence of the conduct of the Appellant as admissible. Section $\delta(2)$ of the Evidence Act allows such evidence to be admitted; and in the end learned Counsel for the Appellant could not find anything very wrong with the Judges' comments of this point. No doubt, the conduct of the Appellant, at the time of the

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attempted arrest on 21st September, 1985, and then later on, his arrest in February, 1986, was relevant. Counsel abandoned this ground of appeal.

But we noted, that with regard to the cigarettes alleged to have been in the Appellants' possession on 21st September, 1985, the evidence of James (PW4) was not borne out by either Matya or Mr. Wilson Baybona, and therefore became doubtful $\texttt{evidence}\xspace$ . However, $\texttt{nothing}\xspace$ turns on this matter since the evidence of identification was very strong.

That leads to ground four, which challenges the Appellant's identification. There was ample evidence, if accepted, on which the Judge could come to the conclusion that the identification evidence was reliable. Before leaving ground four we should notice ground five. It was there argued that the evidence of the identifying witnesses Matya and James, was inconsistent and contradictory. The worst discrepancy was that the time taken for the robbers to complete the attack differed between 45 minutes and ten minutes. Another one was that the attack was recorded as being the 20th September, 1987, while it was generally recorded as having been the 20th September 1985. These were not serious matters and the Judge was entitled to ignore them.

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That again leads us to ground three in which it was objected that the learned Judge should not have rejected the Appellant's alibi.

There was evidence outside the evidence of identification at the scene, on which the Judge could hold that the alibi was false. The Appellant's defence had been that he had left Nkaka village in May, 1985 and had remained in Kampala until 1986. Consequently, the Appellant could not have been at the scene at the time of the robbery in September, 1985, nor could he have been in Kagume Hill on 21st September 1985 when he was seen by Mr. Byobona's arresting party. If the Appellant had been seen at Kagume Hill, then there was evidence to hold that the alibi must be false. But in general, the proper approach in this type of case, is to analyse the evidence for the prosecution, and having found its proper worth, shorn of inadmissable evidence, then to compare it with the defence to ascertain whether the defence raised a reasonable dount, that the accused might not have been at the scene of the incident. During the course of scrutinising the prosecution case, it is not proper to make final findings whether the court will rely upon it, until after the comparison of the case with the defence. After that comparison, then is the time for the court to make its

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findings of facts. Although this approach was not accurately carried out, nevertheless it is clear from the judgment that the prosecution case had satisfied the learned Judge, that the defence had raised no reasonable doubt that the Appellant's identification was sound. Apart from this matter there was no other case of shifting the burden of proof as alleged in ground six.

Looking at all evidence for ourselves, as is the duty of this court, we find that there were strong factors of time and light providing the opportunity to observe the Appellant, which supported the identification. This was borne out by an immediate report, and an attempt the following day, to arrest the Appellant. The Appellant was well known to the identifying witnesses long before the robbery. There was the Appellant's conduct when seen on 21st September 1985, and his place of hiding when he was actually arrested. We have no doubt at all that the identification was sound and that the defence raised no reasonable doubt.

Consequently, we dismiss the appeal against conviction, and as the sentence of death is mandatory for a man of the Appellants' age the appeal is dismissed in its entirety.

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Dated at Mengo this $\cdots$ day of $\cdots$ 1994.


DEPUTY CHIEF JUSTICE

$\sim$ $\sim$

A. H. O. ODER,

JUSTICE OF THE SUPREME COURT.

$-$ His blue H. G. PLATT,

JUSTICE OF THE SUPREME COURT.