Uganda V Kiggundu Muzafalu (Criminal Session Case No. 89 of 2017) [2019] UGHCCRD 49 (2 July 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION NO.89 OF 2017 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                              VERSUS KIGGUNDU MUZAFARU BULOLO::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED                    BEFORE: HON. JUSTICE EMMANUEL BAGUMA                                               JUDGMENT Kigundu Muzafaru Bulolo, the accused person was indicted with the offence of Aggravated robbery contrary to Sections 285 and 286 (2) (b) of the Penal Code Act, Cap 20. It was alleged that Kigundu Muzafaru Bulolo and others still at large on the 14th day of December 2016 at 1:30 am at Kanaga Bulo Sub-county in Butambala district robbed Nakiwala Hadija of her mobile phone and money in a safe box worth 2,000,000/= and at or immediately before or immediately after the said robbery were in possession of a deadly weapon to wit a panga. On arraignment, the accused pleaded not guilty and by that plea, the accused set in issues of all the essential ingredients of the offence charged to be proved by state. In a nutshell, that meant that each and every ingredient of the offence charged had to be proved beyond reasonable doubt in order to secure a meaningful conviction of the Accused.  It is trite law that the Accused bears no burden to prove his innocence since he is presumed innocent until proved guilty.  This principle of law was laid down in Woolmington Vs. DPP [1935] A.C 462.  The same principle is enshrined in Article 28(3) (a) of the Constitution of Uganda. The burden does not shift and the accused can only be convicted on the strength of the prosecution case and not because of any weaknesses in his defence, (See Ssekitoleko v. Uganda [1967] EA 531). In order to secure a conviction of an accused person of aggravated robbery, the following ingredients of the offence must be proved beyond reasonable doubt. That there was theft of property. That there was violence. That a deadly weapon was used or threatened to be used. That the accused participated in committing the crime In order to discharge the burden of proving the case beyond reasonable doubt, the prosecution called six witnesses, namely Nakiwala Hadija (PW1); Musamba Erias (PW2), DC Akusum Nsibambi (PW3), D/AIP Basiima William (PW4), Muhindo Stephen (PW5) and DC Apolot Beatrice (PW6). The accused person gave sworn evidence and called one witness. Issue one: Whether there was theft of property? Theft occurs when a person fraudulently and with intent to deprive the owner of a thing capable of being stolen, takes that thing from the owner without a claim of right – Section 254 (1) of the Penal Code Act. In the instant case, PW1 the complainant testified that on that fateful night, someone attacked her and asked for money. She stated that she gave the person money from the savings box that belonged to the mosque totaling to two million shillings. She also stated that her phone was also taken. Since money and a phone are things capable of being stolen, I find that prosecution has proved beyond reasonable doubt that there was theft of property. Issue two: Whether there was violence? Violence is defined in black’s Law Dictionary to mean unjust or unwarranted exercise of force, usually with the accompaniment of vehemence outrange or fury.  PW1 testified that she was beaten with a panga at her back. PW3 also testified that he saw the accused beating her aunt with a panga while asking for money. The medical report, PEX1 also indicated that the victim had injuries caused by a panga slapping her back. From this evidence above, I find that prosecution has proved beyond reasonable doubt that there was violence involved.   Whether a deadly weapon was used or threatened to be used? Under Section 286 (3) (a) (I) of the Penal Code (Amendment) Act 2007, a deadly weapon includes “any instrument made or adopted for shooting, stabbing or cutting or any imitation of such instrument.” PW1 testified that the attacker hit her with a panga. PW3 also stated that her aunt was being hit with a panga by the accused. It is not in doubt that a panga falls within the definition above of a deadly weapon. It has therefore been proved by prosecution beyond reasonable that a deadly weapon was used.   Whether the accused person participated in the robbery? PW1 stated that she didn’t identify her attacker that night. It was PW3 who testified that he identified the accused person with the help of torchlight which the accused was flashing at his aunt and the wall. He stated that he identified the accused as a person with a haircut and a T-shirt with strips. PW3 also stated that at Bulo Police station, he managed to identify the accused amidst many people and he also identified him at Kibibi police station. PW2, the Chairman also testified that he answered an alarm coming from Kanaga and on the way; he met the accused person coming from where the alarm was. He stated that the accused got a panga to cut him but he avoided it and he also had a panga which he tried to cut the accused with and he manage to identify him with a haircut and a T-shirt with strips. He stated that there was enough moonlight and he knew the accused person before. The Supreme Court in Walakira Abas & Others v Uganda, Supreme Court Criminal Appeal No. 25 of 2002 (Unreported) stated as follows;  “The Court may rely on identification evidence given by an eye witness to the commission of an offence, to sustain a conviction.  However, it is necessary, especially where the identification be made under difficult conditions, to test such evidence with greatest care, and be sure that it is free from possibility of a mistake.  To do so the Court evaluates the evidence having regard to factors that are favorable, and those that are unfavorable, to correct identification…” In the instant case, PW3 stated that he used torchlight to identify the accused person. He gave a good description of the accused and also managed to identify him at police. PW2 also gave a similar description to that of PW2 thus I am convinced that this identification was free from error. Further, PW4 stated that he recorded the charge and caution statement for the accused who confessed to having committed the offence. I have looked at the charge and caution statement marked PEX3 in which the accused person confessed to have carried out the said robbery with other people. PW3 also stated that he had seen other people ran away in line with what was stated in the charge and caution statement of the accused person. DW1 the accused testified that he was at home sleeping that fateful night. DW2 his mother stated that it was because of the land dispute that she had with the complainant that her son is being framed up. I do not agree with this contention and even though the accused person bears no burden to prove his innocence, I find that PW3 was consistent and properly identified the accused person at the scene of crime and the charge and caution statement corroborated his evidence. I therefore find that prosecution has proved beyond reasonable doubt that the accused person participated in the said robbery. In conclusion and in agreement with the assessors, I find that prosecution has proved beyond reasonable doubt that the accused person committed aggravated robbery C/S 285 and 286(2) OF THE Penal Code Act and I convict him accordingly. …………………………………….. Emmanuel Baguma   Judge. 25/06/19 Prosecution –aggravating factors: The accused has no previous criminal record, however, I pray for a stiff sentence.  The accused was a young man of 22 years who should have used his energy to work using his hands other than robbing the innocent people.  The accused also assaulted the complainant and put her in the state of fear. I propose 18 years imprisonment. M/S Namazzi: Since I am holding brief I pray that the matter be adjourned for Mr. Kumbuga to give mitigating factors. Prosecutor: No objection. Court: Allows /mitigating factors by defence counsel for 2/7/2019 AFR and sentence. Emmanuel Baguma Judge 25/6/2019. 2/7/2019: Accused in court Ms Twesiime for sate Mr. Kumbuga  on state brief Najemba  and Nakitto Assessors Sempijja Court Clerk. Prosecutor: For mitigating  and sentence: Mr Okwalinga: I have instructions for Mr. Kumbuga who could not make it to  mitigate.  I am ready for mitigation. Allocutus/mitigation Defence The accused is the first offender and has been on remand since 4/1/2017.  Meaning he has been on remand for a period of 2 years, five months and twenty eight days.   The accused has a family. I pray that accused be given 8 years.  I so pray. Court: Accused is  given a  chance to  say something since his  lead  counsel is indisposed. Emmanuel Baguma Judge 2/7/2019. Accused- Further mitigation I have an old mother and siblings to look after.  I have since reformed.  I so pray Reasons and sentence: I have carefully listened to both aggravating and mitigating factors.  Accused is hereby sentenced to 22 years, five months and 28 days. However, since the accused has been on remand for two years, five months and 28 days, I will subtract the period on remand of two years, five months and 28 days and I hereby sentence the accused to serve a period of 20 years imprisonment. Emmanuel Baguma Judge 2/7/2019. Right of appeal within 14 days communicated to both parties. Emmanuel Baguma Judge 2/7/2019

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