Court name
High Court of Uganda
Case number
Criminal Session Case-1991/178
Judgment date
29 January 1992

Uganda v Micheal Ngabirano (Criminal Session Case-1991/178) [1992] UGHC 9 (29 January 1992);

Cite this case
[1992] UGHC 9
 
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KABALE
CRIMINAL SESSION CASE NO. 178 OF 1991.
UGANDA
:::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR.
VERSUS.
MICHEAL NGABIRANO :::::::::::::::::::::::::::::::::::::::::::::ACCUSED.
BEFORE:
THE HONOURABLE MR. JUSTICE J.W.N.TSEKOOKO:
JUDGMENT:
MICHEAL NGABIRANO (hereinafter called “the accused”) is indicted for Robbery Contrary to Sections 272 and 273 (2) of the Penal Code Act.
The particulars of offence allege that the accused and others still at large on 26/4/1987 at Kashenyi village in Rukungiri District robbed Florence Tirahweire of cash Shs,780,000/= and a wrist watch and at or immediately before or immediately after the said robbery used a deadly weapon, to wit a gun and a panga, on the said Florence Tirahweire, During the preliminary hearing held Under the provisions of section 64 of the Trial On Indictments Decree, 1971, the evidence of the following witnesses as admitted.
 PW1 (D.Tumuhwirwe) a Medical Assistant of Bugangari Health Centre. He examined Florence Bagarina Tirahweire, the victim of the robbery on 27/1/1987. He found a cut wound on her right hand affecting the 2nd and 3rd Fingers measuring 11/2 cm long by - cm wide and 1/4cm deep. He classified the injury as harm. PW2, Dr. Kagyen a medical officer, examined the accused on 23/8/1988 and found him aged 20 years. PW3 Bashir Juma as RCI secretary for Security of Bujumbura village arrested accused on 26/7/1987 in connection with the present charge of robbery and handed him to Bugangari sub-county authority from where PW4 John Kamugisha, Administration Askari transferred the accused to Rukungiri Police Station.
As I directed the assessors and as both counsels agree, there are two principal issues to be considered thoroughly in this case in the light of the evidence adduced by the prosecution and the defence. One of the two issues is whether robbery was committed and if so whether it is capital robbery as charged. The second and in my considered view the most vital issue is identification of the robber or robbers, The prosecution in addition to the evidence admitted under S.64 of Trial On Indictments Decree, 1971, quoted above called four witnesses to give oral testimony These are Mrs. Florence Bagarimu Tirahweire (PW5) James Mayanja (PW6) Hamujuni Leonard (Pw7) and D/AIP Karwemera (Pw8). As I directed the assessors during summing up there is only one single identifying witness for the prosecution. This is PW5.
The accused gave an unsworn statement as is his legal right Under Section 71 (2) (b) and 72 (I) of the Trial on Indictments Decree, 1971. His father Desiderio kagyeitate (DWI) testified for the defence.
In a criminal trial under our law, the burden of proof of the guilt of the accused person is always on the prosecution. See Okale vs. republic (1965) EA 555 and Ndege vs. Uganda (1979) HCB 162 and Nabulere & cithers Vs. Uganda (1975) HCB.I85.
It is the bounden duty of the prosecution to prove the case against the accused beyond reasonable doubt.
I think it is not disputed that PW5 and the accused were neighbors and had known each other very well. Nor is it disputed that robbery occurred at the home of PW5. As a matter of fact since there is clear evidence that the robbers used a panga in cutting the fingers of PW5 the offence committed is in law capital robbery within the provisions of section 273 (2) of the Penal Code Act; See page 10 of the judgment of the Supreme Court of Uganda in Criminal Appeal NO. 27 of 1989 (Sarapio nkamalirwe vs. Uganda), See also page 11 of the Supreme Court in its Criminal appeal NO.8 of 1989 (Yowana Serunkumma vs. Uganda).
On the evidence available on robbery and. on the basis of the decision I have just cited the first issue is answered. That is that robbery was committed under S.27 (2) Of Penal Code Act. In her testimony PW5 stated that on the night of the robbery she went to bed at 8.00 p.m. That by 9.30 p.m she was asleep. So were her young children. Her husband had spent that night with her co-wife miles away. According to her the accused ordered her to open from the rear door. Her door was banged 7 times. For her she opened the front door only to find Byanyima who shorn a torch at her ordering her to go back.. She did not explain how at that stage she was able to identify Byanyima. She returned to the bedroom. She was apparently followed by Byanyima. There she found accused. According to her, she recognised the accused because Byanyima who was behind her shone a torch whose light fell upon the whole body of the accused. She recognized him. He was bare chested but wore a pair of shorts. Unfortunately the duration of the lighting on accused was not established. Accused raised a panga to strike her. She put up her right hand to protect herself. In consequences her fingers were cut. In the bedroom the accused removed Shs, 780,000/= (new currency) from under the pillow. He also removed her disco watch from a tray. The accused ordered her to close the rear door. As the two robbers left she immediately ran to