THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION NO. 61 OF 2017 UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTOR VERSUS A1. KALYESUBULA ANDREW A2. KIZZA WALUSIBI alias CHICKEN A3. NTABAZI GONZAGA A4. MUHAMED RATIB:::::::::::::::::::::::::::::::::::::::::::::::::::ACCUSED BEFORE: HON. JUSTICE EMMANUEL BAGUMA JUDGMENT. Kalyesubula Andrew, Kizza Walusibi Alias Chicken, Ntabazi Gonzaga and Muhamed Ratib were charged with the offence of Aggravated Robbery contrary to Section 285(3) and 286(2) of the Penal Code Act. The state alleged that Kalyesubula Andrew, Kizza Walusibi Alias Chicken, Ntabazi Gonzaga and Muhamed Ratib on the 30th day of March 2016 at Kinaawa Bandwe village Nsangi sub- county Wakiso District, robbed Nassozi Joweria a flat screen TV 42 inches and cash one million shillings (1,000,000/=) and immediately after the said robbery threatened to use a deadly weapon to wit a panga and knives on the said Nassozi Joweria. When the charge of Aggravated Robbery was read to the accused persons, each of them pleaded not guilty and a plea of not guilty was entered. Under Article 28 (3) of the Constitution of Uganda, an accused person is presumed innocent till proved or on own free will pleads guilty. This means that the burden of proof in crimes of this nature except for strict liability cases falls on the prosecution. The standard of proof in our criminal Justice system is beyond reasonable doubt. See Woolmington Vs DPP (1935) AC 462, Ejapan Ignesious V Uganda. SC. CRM. APP. NO. 25/2005 It is however important to understand what it means to say beyond reasonable doubt. This is because in case of any doubt in the prosecution evidence, the court must resolve the case in favour of the accused person either to acquit or discharge him or her. In MILLER V MINISTER OF PENSIONS (1947) 2 ALL ER 372 it was held that beyond reasonable doubt need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect society if it admitted fanciful possibilities to deflect the course of Justice. If evidence is strong against a person as to leave only remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”. The case is proved beyond reasonable doubt but nothing short of that will suffice. Where evidence is adduced before court and there exists a remote possibility of innocence of the accused person. It would mean that the prosecution has proved its case beyond reasonable doubt. See Bater Vs Bater (1950) 2 A11ER 458 Uganda Vs Hussein Hassan Agade CRM. Sess. Case No. 1 of 2010 (unreported). In a bid to prove its case, the prosecution called three witnesses which included; Nassozi Joweria PW1, Wamakote Samuel PW2 and No. 43561 CPL Obonyo Patrick PW3. Police Form 24 on which the accused persons were examined and found to be normal were tendered in court and marked PE1, PE2, PE3 and PE4 respectively. To prove the offence of Aggravated Robbery, the prosecution has to prove the following elements of the offence: There was theft of property. Use of actual violence at, before or after the theft or that the accused caused grievous harm to the complainant. The assailants were armed with a deadly weapon before, during or after the theft. The accused participated in the robbery. Proof of Theft PW1 Nassozi Joweria testified to court that on 30th/3/2016 at 1:00pm during lunch time hours; she was at home in front of the house breast feeding. Immediately the four accused persons came and ordered her and her maid to enter the house. They demanded for money. She said that she managed to identify A4 who was with the three men inside the house, they all pulled out knives. She then told the accused persons that she had money in the bedroom under the mattress. A4 went to the bedroom and got one million. The accused persons then ordered them to lay down facing down. There was a TV “1” inch flat screen in the house and it was also taken. It is also the evidence of the prosecution witnesses that the items stolen where never recovered. Considering the evidence above, whoever took the 1,000,000/= and a TV set, took it fraudulently with intent to deprive the owner of a thing capable of being stolen and without a claim of right. See Section 254 (1) of the Penal Code Act. Use of violence or the threat and use of a deadly weapon. PW1 told court that during lunch time, the accused persons came at her house and forced her and her house maid to enter into the house. While in the house, the accused persons started demanding for money and pulled out knives. She said that thereafter, she told the accused persons that the money was in the bedroom under the mattress; A4 went and got the money from the bedroom. The accused persons then told them to lay down facing down, they then picked the TV and went away using the behind door. Under Section 286 (2) (a) of the Penal Code Act, a deadly weapon includes: - “an instrument made or adapted for shooting or cutting, and any imitation of such instrument”. There is no doubt that a knife is a deadly weapon as it can be used for cutting and can be adapted for stabbing. In the case of Mudasi Vs. Uganda [1999]1 EA 193 (SCU), a club was held to be a deadly weapon. Therefore, there is sufficient proof on record that before, during and after the robbery, the accused persons threatened the complainant using knives and knives can be used for cutting and stabbing. The accused person’s participation in the robbery PW1 told court that the accused persons came at her home and ordered them plus her house maid to enter into the house. She said that in the process of robbery, she managed to identify A4. Immediately after the incident, she went to her neighbor called Lwanga Moses and told him what had happened. Lwanga advised her to report the matter to O/C of Nalumunye police. She said in 20 minutes, the police responded. They came at 2:00pm and they told her that they were going to bring sniffer dogs. They brought them at 7:00pm but failed to trace the accused persons. PW1 again told court that when she went to tell her neighbor Lwanga Moses about what had happened, she also told him that A4 Ratib was among the persons who had robbed her. She said that even when the police came, she told them that among the persons who robbed her, there was Ratib A4. PW1 said that the next day police came back to her home and they went to arrest A4. They went to A4’s home but they did not find him there and they were told he was guarding a near place. PW1 testified that they went to a house where he was guarding and they found A4 inside the house and he was arrested. PW1 told court that they proceeded to another place with the help of residents. They went to A4’s ice cream shop and when they reached there, A2 and A3 saw them and wanted to run away but were intercepted by police. She said that as they were arresting A2 and A3, they heard an alarm somewhere and when they went there, they found when A1 had been arrested by the residents. PW1 further told court that she managed to identify A1 as one of the people that had robbed her. She said that after, the four accused persons were taken to Kijojo Police Station recorded statements and charged accordingly. She said that the four accused persons were put at the parade to be identified by the maid which she did in the presence of the complainant. PW1 described to court how all the accused persons were dressed on the day in question; she said that A1 was dressed in a squared shirt and a black jean and open shoes, A2 was dressed in a T- shirt white in color and short trousers, A3 was dressed in blue shirt (light blue) and blue jean and A4 was dressed in a black jean and slander checked shirt. It is however noted that this fact was never disputed by the defence. In cross-examination PW1 told court that A4 used to stay in her neighborhood 10metres away from her home. She said that she did not mention that she saw A4 in the first two statements she made but in the third statement she said that she identified the accused persons but she did not know their names. The three statements were tendered in court and marked exhibit D1, D2 and D3 respectively. PW1 further told court that she did not know A1, A2 and A3 before the case. She said that it was the other neighbors who told them A4 had ice cream shop in the trading centre. PW1 in re-examination told court that while at police, she mentioned about A4 but it was not captured in the statement. It is however noted that since the complainant only knew A4 among her assailants, the identification parade was conducted in a bid to prove the identity of the other accused persons. The identification parade was conducted by Wamakote Samuel a police officer who was in March 2016 attached to Kikajo Police Station. The rules that must be followed when conducting identification parade are provided for in the case of Sentale Vs. Uganda [1968] EA 365, In the instant case, the next day after robbery, the police officers came back at the home of the complainant. PW1 told the police officers that among the people who robbed her, she managed to identify A4 since he was her neighbor. She went with the police officers at the place where A4 was guarding, they found him there and arrested him. She said that after they had arrested A4, the residents then led PW1 and the police officers to the ice cream shop of A4. She said that when they reached at the ice cream shop, they found A2 and A3, when they saw PW1 and the police officers they tried to run away but where intercepted by police. Thereafter, A2 and A3 were also arrested. PW1 said that as they were arresting A2 and A3, they heard an alarm from the neighboring area and they rushed there, when they reached there, they found A1 had been arrested by the residents and PW1 said she managed to identify him as one of her assailants. PW1’s evidence was corroborated by the evidence of PW3 the arresting officer. PW2 told court that he conducted identification parade. He said that A1 and A4 were identified by PW1, A2 and A3 were identified by the complainant’s house maid. However, although the law is that all the rules need not be proved, since the complainant participated in arresting all the accused persons and since the complainant and her house maid used to stay in the same house and could communicate with each, this court finds that the manner in which an identification parade was conducted was not proper. Having found the identification parade improper, the other piece of evidence that is left for this court to evaluate is circumstantial. The offence of aggravated robbery was committed during broad day light. However, from the evidence of PW1 it is noted that among her assailants, she identified all but only knew A4. Although the offence was committed during broad day light, there is need for this court to satisfy itself whether the identification was proper or not. Given the fact that the complainant was under eminent fear of death. So court must ensure that there is no mistaken identity. See a Supreme Court case of Walakira Abas & Others v Uganda, Supreme Court Criminal Appeal No. 25 of 2002 (Unreported). PW1 told court that while at her home during lunch time, the accused persons came to her house and ordered her to enter into the house. She said that when she reached in the house, they asked her for money and removed knives. She then directed them to go to the bed room and pick the money. PW1 said that it was A4 who went to the bedroom and picked the money. She further told court that they were four robbers but among them she only knew A4 who was her neighbor at home. All the accused persons denied ever robbing the complainant of her property. A1 Kalyesubula Andrew told court that on the 30/3/2016 at 1:00pm, he was at his home at Kinaawa Bandwe with his wife. A2 said that he was arrested from his home. A3 told court that he was selling ice cream before his arrest. He said that on the 30th/3/2016 he was at his work place selling ice cream. A4 told court that he knew the complainant as his neighbor. He said that he had known her for three years and that on the 30th /3/2016 he was at his work place and did not hear of any robbery case. However, since the offence was committed in broad day light, and since the accused persons ordered the complainant to enter into the house, asked her for money, removed knives and ordered them to lay down facing down wards, that time and distance is presumed to be close enough to enable the complainant to identify the accused persons. The assessors gave a joint opinion and advised court to acquit all the accused persons. However, considering the reasons given above, I disagree with the opinion of the assessors and find the accused persons guilty and convict them as charged. Emmanuel Baguma 19/9/2018: 4 accused in court. Attendance: Mr. Bwiso Charles Sen. State Attorney for prosecution. Mr. Okwalinga Moses for accuse don state brief. M/s Mbabazi Prossy court clerk. Mr. Tabula Edward Assessors. Ms Najjemba Regina Prosecutor: For judgment. Defence: I am ready to receive the judgment. Court: judgment is read and heard in open court. Prosecutor: The accused have no previous record. However, I pray for deterrent sentence. The punishment in this case, the maximum punishment is death. I pray for the same maximum sentence of death. The four convicts are younger men. They should have used their hands to leave well other than robbing the innocent person. Society should be protected from such people. I pray for death sentence. I so pray. Defence counsel: The mitigating factors is that the convicts are all first offenders they have no previous criminal record. Also I pray that court considers the period spent on remand. A4 has been on remand since 12/4/2016. Meaning they have been on remand for two years, five months and seven days. The convicts are young people A1 is 25 years, A2 is 24 years A3 is 24 years and A4 is 37 years. Al the accused are still young there is a likely hood that the accused can reform given an opportunity. A1 has a young child A2 has one child A3 has no child A4 has six children and he is the sole bread winner a long prison term will affect both the convict and their families. I also request court that there was no loss of life and physical violence. The nature of weapons used should also be considered. I propose for six years imprisonment. I so pray. Court: Sentence will be at 1:00 p.m. Emmanuel Baguma Judge 19/9/2018. Later on at 1:00 p.m. Attendance Court assembled as before. Sentence and reasons for the sentence. The convicts were found guilty of the offence of Aggravated robbery c/s 285 (3) and 286 (2) of the Penal Code Act after a full trial. In his submissions on the sentencing the learned resident State Attorney prayed for a maximum sentence i.e death as a deterrent sentence. He submitted that the four accused persons were younger men that should have used their hands to work other than robbing the innocent citizen and that society should be protected from such criminals. Counsel for the four convicts prayed for six years and stated that the convicts are first offenders as they have no previous criminal record. He told court that all the four convicts are capable of reforming given an opportunity and become good citizens since thy are all in their youth age bracket. Counsel submitted that All the four convicts have been on remand since 12/4/2016 hence the period of two years, five months and seven days should be considered. That the three convicts have children who depend on the convicts. I have considered all the aggravating and mitigating factors mentioned by both the prosecution and the defence. I have also considered the nature of the offence and circumstances under which the offence was committed and the nature of weapons used i.e knives . There was no loss of life and no physical injury inflicted to the complainant. Sentence: Each accused is sentenced to 19 years imprisonment. However I will subtract the two years, five months and seven days each convict has been on remand. Accordingly after subtracting the period each convict has been on remand. Therefore each convict is hereby sentenced to serve a custodial sentence of 16 years, 06 months and 23 days imprisonment. Emmanuel Baguma Judge 19/9/2018 Court: Right of appeal within 14 days explained to the convicts. Emmanuel Baguma Judge 19/9/2018
