Uganda v Ssebunya Hamuza (Criminal Session No. 0069 of 2018) [2019] UGHCCRD 61 (7 June 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION NO. 0069 OF 2018 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION                                                     VERSUS SSEBUNYA HAMUZA::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED                        BEFORE: HON. MR. JUSTICE EMMANUEL BAGUMA JUDGMENT Ssebunya Hamuza was indicted with one count of aggravated robbery contrary to sections 285 and 286 (2)and (3) (a) of the Penal Code Act and one count of Rape contrary to sections 123 and 124 of the Penal Code Act. In count I, It was alleged that Ssebunya Hamuza on the 30th day of March 2017 at 2:00 am in the morning at Namagoma cell, Kyengera town council in Wakiso district, robbed one Karuhanga Gloria of her cash amounting to UGX 460,000/= three mobile phones worth UGX 100,000/= and immediately before, at or after the time of the said robbery used a deadly weapon to wit a knife on the said Karuhanga Gloria. In Count II, it was alleged that Ssebunya Hamuza on the 30thMarch, 2017 at 2: 00 am at Namagoma cell, Kyengera Town council in Wakiso district, without consent of Nangobi Aisha forcefully had sexual intercourse with her. On arraignment, the accused pleaded not guilty to both counts. By that plea, the Accused set in issue all the essential ingredients of the offences charged.  In a nutshell, that meant that each and every ingredient of the offences 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 was enshrined in Article 28(3) (a) of the Constitution of Uganda. 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 produced four witnesses, namely Karuhanga Gloria (PW1); Kisirinya Peter (PW2), DC Wandera Denis (PW3) and D/SGT Wekopare Willy (PW4).The accused person made sworn statements and called no witnesses. In count 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 the 30/2/2017 at around 2:00 or 3:00 am, the accused person asked her for money and took 400,000/= which was in her suit case. She also stated that the accused person took all her phones. Since money and phones are things capable of being stolen, I find that ingredient one has been proved by prosecution beyond reasonable doubt. Whether there was violence used? 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.  As far as this ingredient is concerned, PW1 testified that she saw one person who cut her with a knife at her mouth and fought her as she was trying to save Aisha. The medical form, (police form 3) marked PEX1 on court record indicated that the complainant had injuries on her right cheek and lower lip caused by a blunt object. I therefore find that prosecution has proved ingredient two beyond reasonable doubt. Whether a deadly weapon was used/ 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.” In the case of  Sentongo and Sebugwawo V. Uganda [1975] HCB 239, it was stated that when the prosecution fails to produce the instrument used in committing the offence during trial, a careful description of the instrument will suffice to enable court decide whether the weapon was lethal or not. PW1 testified that the thief cut her with a knife at her mouth.  The medical report PEX1 confirms that PW1 had injuries on her mouth and right cheek. I am therefore inclined to hold that the instrument that was used to cut her mouth and cheek in view of the authorities above, suffices to constitute a deadly weapon. I also find that prosecution has proved beyond reasonable doubt that a deadly weapon was used. Whether the accused person participated in the alleged robbery? PW1 testified that she watched through the hole in her bathroom and recognized the accused person who was using a torch to search her room. She stated that the accused person was once her porter while they were constructing the house in 2016. In other words the evidence implicating the accused person was solely visual by PW1. The Supreme Court of Uganda and its predecessors have in a number of leading cases elaborated on the principles to apply in cases where the guilt of the accused person depends on evidence of visual identification.  A few of those leading cases are: (Abdalla bin Wendo & Another v R (1953) 20 EACA 116; Tomasi Omukono & Another v Uganda, Criminal Appeal Case No. 4 of 1977; Abudala Nabulere & Others v Uganda, Criminal Appeal No. 10 of 1977; Moses Kasa v Uganda, Criminal Appeal No. 12 of 1981.) The above principles were rehearsed by the Supreme Court in Walakira Abas & Others v Uganda, Supreme Court Criminal Appeal No. 25 of 2002 (Unreported) 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…” From the evidence on record, I cannot be certain whether the identification was free from possibility of mistaken identity. PW1 stated that it was dark when the thieves came and that she used light from the accused person’s torch to identify him through the bathroom hole. She also stated that the accused person was smoking a cigarette which she also used to see him properly. In my opinion I do not think that cigarette light can enable one to identify a person in the dark. Further seeing someone through a bathroom hole also creates doubt regarding proper identification. No evidence was brought on record regarding the size of that bathroom hole that the complainant managed to see the accused person through. I therefore find that factors favoring correct identification were lacking.  It would therefore be risky to base any conviction on the above evidence of visual identification only. On that note, I find that Prosecution has failed to place the accused person at the scene of crime thus ingredient three has not been proved beyond reasonable doubt. It is trite law that all the above ingredients ought to be proved beyond reasonable doubt and failure to prove one is failure to prove all:  (See Walakira Abas & Others v Uganda:  Supreme Court; Criminal Appeal No. 25 of 2002 (supra) Since prosecution has failed to prove ingredient three beyond reasonable doubt, I find that count 1 of Aggravated robbery has not been established against the accused person, and in disagreement with the assessors, I find the accused person Sebunya Hamuza not guilty of count 1. I will now look at Count 2 of Rape. For the offence of rape, prosecution had to prove the following essential ingredients; There was sexual intercourse with the complainant. There was no consent to the sexual intercourse. The accused person was the culprit or he is the person that participated in this performance of sexual intercourse It is trite law that in cases of sexual offences, proof is by the person who was raped and medical evidence. In the instant case, the alleged victim Aisha Nangobi did not testify about the alleged rape, neither was there any medical evidence of the same. Further, PW3 stated that he went to the scene of crime after the alleged incident and interviewed the maid, Nangobi Aisha who confirmed that she was raped but did not know who raped her. Court cannot therefore rely on speculations. I therefore disagree with the assessors’ opinion of finding the accused person guilty of count II of rape. In conclusion therefore, I find Sebunya Hamuza not guilty of both count I and count II and I thus acquit him. …………………………………….. Emmanuel Baguma   Judge. 7/06/19

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