THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MBARARA
UGANDA ::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
MUGUMYA ELIAS ALIAS MARIYA :::::: ACCUSED
BEFORE: HON. MR. JUSTICE P.K. MUGAMBA:
The prosecution called six witnesses in support of the charge to the effect that on the night of 10th April 2001 at Nkanga village in Bushenyi District accused and another still at large robbed Rutanyomwa Boaz of shs.120,000/= and that in the course of that robbery they used a panga and a hoe, which are deadly weapons, against the said Rutanyomwa. The witnesses called were Jolly Rutanyomwa (PW1), Katondogyira Ephraim (PW2), Boaz Rutanyomwa (PW3), Fabiamo Kakuba (PW4), P.C. Ziire (PW5) and Bananuka Remegius as (PW6).
It is incumbent upon the prosecution to prove its case against the accused beyond reasonable doubt. SeeOkethi Okale & others vs Uganda (1965) EA 555. In that respect the following ingredients must be proved in a case of aggravated robbery:
Both PW1 and PW2 testified to the effect that the thugs that attacked them in their house on the material night stole shs.120,000/= from their house. This evidence has not been disputed by the defence. I find that the prosecution has proved this ingredient of theft beyond reasonable doubt.
The second ingredient is whether violence was used on the occasion. PW1 testified that the thugs tied up PW3 and herself and that they beat them up using a stick and a pang - using that broad side of the blade which is not keen to slap them with it. This testimony was supported by that of PW3. Exhibit P.II contains evidence of injury inflicted on PW3. This evidence is not contested. This court has held that where the complainant was held by force and slapped and the violence was used to obtain money such violence was sufficient to support the charge of robbery. SeeKenan Owori and Stephen Olwowo vs Uganda (1975) HCB 223. I am satisfied to prosecution has in this case proved that there was violence in the occasion.
The third ingredient is whether there was use or threatened use of a deadly weapon. According to PW1 and PW3 the intruders had a hoe and a panga in addition to a stick. The intruders applied a panga on the couple. They did not use it for cutting them but for slapping them into it in manner already described. The hoe was never used. According to PW4 who examined PW1 and PW3 their injuries were inflicted by a blunt instrument. I find that the prosecution has not proved beyond reasonable doubt that a deadly weapon was used or threatened to be used.
The last ingredient was whether or not accused participated in the robbery. According to the defence accused was in residence at his house at the time the robbery is said to have taken place. His testimony is supported by that of his wife. When an accused person sets up a defence of alibi he does not assume that responsibility to prove it. Rather the prosecution must disprove and destroy the alibi by adducing evidence that puts accused at the scene of crime. See
The assessors in their opinion which was joint advised me to convict accused as charged. For the reasons I have given in the course of this judgment I do not agree with that opinion. I acquit the accused of the charge of aggravated robbery and find him guilty of the lesser offence of simple robbery contrary to sections 272 and 273 (1) (b) of the Penal Code. I convict him accordingly.