Court name
High Court of Uganda
Case number
Criminal Case-2019/217
Judgment date
24 September 2020

Uganda Vs Ogwal and 2 Others (Criminal Case-2019/217) [2020] UGHC 177 (24 September 2020);

Cite this case
[2020] UGHC 177
Short summary:

Criminal Law—Aggravated Robbery C/s 285 and 286 (2) of The Penal Code Act — There should be proof that there was theft of property belonging to another, use or thereat to use violence during the theft, possession of a deadly weapon during the commission of the theft and that the accused participated in the commission of the offence.— For the ingredient of theft of property belonging to another, there must be proof of what amounts in law to an asportation (that is carrying away) of the property of the complainant without his consent or lawful claim of right. A deadly weapon is one which is made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death and participation of the accused is achieved by adducing direct or circumstantial evidence, placing each of the accused at the scene of crime not as a mere spectator but active participant in the commission of the offence

Evidence — Circumstantial evidence — Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances, often numerous, which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance — Identification—It is necessary, especially where the identification is made under difficult conditions, to test such evidence with the greatest care, and be sure that it is free from the possibility of a mistake. To do so, the Court evaluates the evidence having regard to factors that are favourable, and those that are unfavourable, to correct identification. Before convicting solely on strength of identification evidence, the Court ought to warn itself of the need for caution, because a mistaken eye witness can be convincing, and so can several such eye witnesses.

Coram
Mubiru, J

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

UGANDA

Reportable Criminal Sessions Case No. 217 of 2019 In the matter between

 

PROSECUTOR

And

  1. OGWAL FRANCIS alias JIMMY
  2. OKWENY PATRICK
  3. OMARA DENIS                                                                                                  ACCUSED

Heard: 18September, 2020 Delivered: 24September, 2020.

Criminal Law—Aggravated Robbery C/s 285 and 286 (2) of The Penal Code Act — There should be proof that there was theft of property belonging to another, use or thereat to use violence during the theft, possession of a deadly weapon during the commission of the theft and that the accused participated in the commission of the offence.— For the ingredient of theft of property belonging to another, there must be proof of what amounts in law to an asportation (that is carrying away) of the property of the complainant without his consent or lawful claim of right. A deadly weapon is one which is made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death and participation of the accused is achieved by adducing direct or circumstantial evidence, placing each of the accused at the scene of crime not as a mere spectator but active participant in the commission of the offence

Evidence — Circumstantial evidence — Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances, often numerous, which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance — Identification—It is necessary, especially where the identification is made under difficult conditions, to test such evidence with the greatest care, and be sure that it is free from the possibility of a mistake. To do so, the Court evaluates the evidence having regard to factors that are favourable, and those that are unfavourable, to correct identification. Before convicting solely on strength of identification evidence, the Court ought to warn itself of the need for caution, because a mistaken eye witness can be convincing, and so can several such eye witnesses.

JUDGMENT

Introduction:

The first and second accused are jointly indicted with two counts of Aggravated Robbery C/s 285 and 286 (2) of The Penal Code Act. It is alleged that the accused, on the 30th day of April, 2019 at Arua Hill Cell in Arua District robbed Endromade Innocent of his red Bajaj Motorcycle Reg. No. UET 456 F valued at shs. 4,000,000/= and immediately before, during or after the said robbery used a deadly weapon, to wit a hammer, on the said Endromade Innocent. The third accused escaped from custody in Arua Government Prison but was re-arrested in Kampala. He was remanded to Kitalya Prison where he committed suicide. A post mortem report dated 11th April, 2020 (exhibit P. Ex. 12) in respect of the body of A3 Omara Denis was produced as proof of his demise, and accordingly the case against him abated.

The prosecution evidence:

The facts as narrated by the prosecution witnesses are briefly that on 30th day of April, 2019 the two accused together with their deceased counterpart travelled from Lira town to Arua Municipality. On arrival, A1 Ogwal Francis alias Jimmy booked Room No. 1 at Carnavia Guest House, ostensibly for himself but it later turned out that the three of them were accommodate in that room. At around 8.00 pm, A3 Omara Denis met the victim, P.W.7 Endromale Innocent, waiting for customers at his boda boda stage at West Nile Supermarket, opposite Kodjo Enterprises, along Avenue Road within Arua Municipality. At a fare of shs. 1,000/= he asked P.W.7 Endromale Innocent for a lift on his red Bajaj Motorcycle Reg. No. UET 456 F, to Arua Hill top Hotel located within Arua Hill Cell. The victim carried A3 Omara Denis as agreed but upon arrival at a place opposite the gate to Arua Hill top Hotel, A3 Omara Denis suddenly pulled a hammer from behind his back and hit P.W.7 on the head, shoulder and mouth. P.W.7 fell off the motorcycle onto the ground where A3 Omara Denis continued to assault him as P.W.7 raised an alarm. Shortly A3 was joined by A1 Ogwal Francis alias Jimmy and A2 Okweny Patrick and together the trio continued to box and kick P.W.7. The three of them then jumped onto the motorcycle and drove it away. The motorcycle was never recovered.

Some guests of Arua Hill top Hotel who at that moment happened to be coming out of the hotel found the P.W.7 on the ground writhing in pain. They picked his mobile phone from his pocket and randomly called on of the numbers in his phone book which happened to be that of his fellow boda boda rider P.W.9 Eguma Casto. He rushed to the scene and on arrival found P.W.7 Endromale Innocent in a critical condition. Using a flashlight on his mobile phone, he recovered a hammer at the scene and took it with him as he was assisted to take P.W.7 to Arua Regional Referral hospital as well. He later handed over that hammer to one of the first police responders to the scene, P.W.4 No. 22645 D/Cpl Opor Nicholas, when he followed them up to the hospital.

The following morning, intelligence gathered from an informant led the police to Room No. 1 at Canarvia Guest House where the three accused were found. A search in that room yielded one travel bag. Inside that bag the police recovered a new hammer, nearly identical to the one recovered from the scene. None of the three accused could account for the possession of that hammer. The three were arrested and charged. At an identification parade conducted a few days later, the victim positively identified A3 Omara Denis but was unable to identify A1 Ogwal Francis alias Jimmy and A2 Okweny Patrick. However, while testifying in court, he identified the two accused as the two assailants who had joined A3 Omara Denis during the attack.

Accused’s’ evidence.

In his defence, D.W.1 Ogwal Francis Jimmy testified that 30th April, 2019 was his first time to travel to Arua. He was unable to find D.W.3 who had made a business trip to Adjumani and had to spend the night in Arua. Canarvia Guest House was recommended to him by another business associate of his and he booked room No.1 where he spent the night alone. The following day at 1.00 on his return from lunch, a person in civilian clothes found him alone in the room and asked him to identify himself. Two other people, who were already under arrest, were immediately brought into the room. One of them is his co-accused. He did not know the other one. He heard one of the people conducting a search in the room say he had found a hammer and he raised it up. It was a new hammer. He told the police officer that he did not know anything about the hammer. He was nevertheless detained for one week and thee days when they were picked from the cells and placed in a line with many other suspects. They brought someone who checked on them in the line and he picked two people. He did not pick the accused. D.W.3 Ogwal Adam testified that D.W.1 Denis Ogwal told him he was coming to Arua that day but unfortunately he had already left Arua for Koboko. He has no business dealings in Adjumani and was not in Adjumani that day, but was in Koboko. It was not his first time for D.W.1 Ogwal to come to Arua. He had come to Arua twice before and spent the night in Arua on one of those occasions.

On his part, D.W.2 Okweny Patrick testified that he had arrived on the morning of 1st May, 2019 to deliver a spare part. His customer who works in Yumbe had told me to bring him spares and they agreed to meet in Arua. It was an injector pump for a pick-up Sahara Diesel engine. After fixing the faulty one with a loose nozzle that was in the car, he then went to “Baby Coach” Stage intending to travel back to Lira. On arrival at the stage he was told by the loaders that there was none ready for booking. He went to a place where there was a pool table, in front of the guest house where D.W.1 Ogwal, his co-accused, had booked a lodge. It was at around 1.00 pm and while he was talking on phone in his local language, someone came and took him aside. He took him to the room where D.W.1 Ogwal was. Shortly after another person was brought and joined them. He then saw one of the people who had arrested them raise a hammer in the air. He said he had found the hammer in the room. They were then taken to the police and detained there for ten days. After the ten days someone said to be a robbery victim was brought. He did not pick the accused but that victim identified two people, one of whom he later came to know as Omara Denis. They were taken to court with Omara Denis, the one who was positively identified at the parade.

Arguments for the Prosecution.

In her final submissions, the learned State Attorney, argued that P.W.7 was hired by A3 on that day. He was assaulted and his motorcycle stolen. He testified that hammer was used. The hammer was found at the scene by P.W.9 who took the victim to hospital. The hammer was exhibited. P.W.5 testified that three people were arrested together at Carnavia guest house; A3 and the two accused. A hammer similar to the one found at the scene was found in their possession. This was not a coincidence. The accused admitted that A3 was identified at the identification parade by the victim of the offence. This is corroborated by the fact that P.W.3 had received a prior tip off from an informant. He was given a telephone number that turned out to be that of the 1st accused. It is the number of exhibit P. Ex. 11 the guest house register which was acknowledged by A1. The intelligence information given was thus correct. This is a case where it was not by coincidence that the three were found together, found with a weapon similar to that found at the scene, and it rhymed with the intelligence information. Their version of being arrested at different places was never suggested during cross­examination. Theo version is a lie. Preparing the search certificate immediately is credit to the police and not fault. P.W.7 testified that he was able to identify the two at the scene. It was in difficult circumstances because he had been assaulted, but taken together with the circumstantial evidence, it points only to one conclusion that the two accused participated. She prayed that the court finds the burden discharged and convicts the two of them.

Arguments for Counsel for the accused.

In her final submissions, counsel for the accused on state brief argued that the case solely rests on an anonymous call as per P.W.3 who was tipped off giving him information that A1 was involved in motorcycle robbery. He was also given the location of A1. It is that information that the police acted on leading to the arrest of the three suspects. A1 and A3 were arrested at different location and taken to the guest house where A1 was. A1 said he had been directed by a one Allan to that guest house. We did not have the opportunity of verifying the credibility of the anonymous informant. All the information he gave was perfect and led to the arrest of the accused. It is curious that no room was left for investigation by the police other than confirm the allegations. Two brand new hammers were brought to court as exhibits; one recovered from the scene of crime, not recovered from the scene by police officers, but by another person, P.W.9. It did not look like it had been used before. There were no blood stains yet the photographs in court showed the victim was bleeding. The second hammer recovered from the hotel room, was only discovered after A1 and A2 were brought into the room. Both accused only saw the hammer in the hands of a police officer when he raised it up. The police went to Canarvia Guest house, prepared to recover an exhibit. When the hammer was allegedly found, the search certificate was filled and signed there and then.

Regarding identification, she argued that the accused were never identified by any witness. There was evidence of an identification parade that was conducted and included all three accused. The victim only managed to identify A3. Much as the prosecution claims that the three accused participated in the crime, there is no clear identifications that places them at the scene of crime. The prosecution thus failed to place the accused at the scene of crime. The prosecution has failed to discharge the burden of proof, beyond reasonable doubt. Both accused should therefore be acquitted.

Assessors’ Opinion.

In their joint opinion, the assessors advised court to acquit the accused on grounds that the prosecution failed to link the accused to the scene. The victim said two people joined the attack. He had fallen down. At that time with the pain and injuries he could not recognise the. P.W.9 had to use a phone because of poor lighting. The victim could not possibly identify the accused. The accused did not see the hammer being recovered. They were squatting at the door. The accused saw it only when it was raised. There is a possibility that the hammer was planted. That recovered from the scene had no blood stains yet the victim was hit multiple times. That too could have been planted. At the parade the victim had recovered but he was unable to identify any of the two but only the 3rd accused, now deceased. In court the victim was able to recognise them because they were the only ones in the dock. The prosecution failed to prove its case.

The Burden and standard of Proof.

In this case, the prosecution has the burden of proving the case against the accused beyond reasonable doubt. The burden does not shift to any of the accused persons and they can only be convicted on the strength of the prosecution case and not because of weaknesses in their respective defences, (See Ssekitoleko v. Uganda [1967] EA 531). By their respective pleas of not guilty, the accused put in issue each and every essential ingredient of the offence with which they are charged and the prosecution has the onus to prove the ingredients of each count beyond reasonable doubt. Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused are innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).

Ingredients of the offence.

For the accused to be convicted of Aggravated Robbery, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

  1. Theft of property belonging to another.
  2. Use or use threat of use of violence during the theft.
  3. Possession of a deadly weapon during the commission of the theft.
  4. The accused participated in commission of the theft.

(a) Theft of property belonging to another.

The first ingredient requires proof of the fact that property belonging to the two complainants in counts one and two was stolen. For this ingredient, there must be proof of what amounts in law to an asportation (that is carrying away) of the property of the complainant without his consent or lawful claim of right. The property stolen in this case is alleged to be red Bajaj Motorcycle Reg. No. UET 456 F valued at shs. 4,000,000/= The prosecution is expected to prove theft of the specific items alleged to have been stolen and in some situations, vague generic references to property of a similar kind will not suffice.

P.W.7 Endromale Innocent testified that sometime after 8.00 pm on the night of 30th day of April, 2019, he was robbed of that motorcycle at a place opposite the gate to Arua Hill top Hotel. It was never recovered. He tendered in evidence its logbook, exhibit P. Ex. 10. His fellow boda boda rider P.W.9 Eguma Casto testified that when he arrived at the scene shortly thereafter, he found P.W.7 Endromale Innocent writhing in pain on the ground and the motorcycle was missing. He only recovered a hammer at the scene and took P.W.7 to hospital. There was no evidence to show that the motorcycle was ever recovered. The evidence adduced leaves no doubt in my mind that the red Bajaj Motorcycle Reg. No. UET 456 F was stolen from P.W.7 Endromale Innocent and for that reason this element has been proved beyond reasonable doubt.

(b) Use or use threat of use of violence during the theft

The prosecution was further required to prove that during the commission of that theft, the assailants used or threatened to use violence. For this ingredient, there must be proof of the use or threat of use of some force to overcome the actual or perceived resistance of the victim. In proof of this element, the court was presented with the oral testimony of P.W.7 Endromale Innocent who stated that his passenger pulled out a hammer while he was still seated on the motorcycle. That passenger then jumped off the motorcycle and hit P.W.7 at the back of the head. He also hit him on the left shoulder, then on both sides of my head. P.W.7 sustained injuries, he was taken to Arua Hospital where he received treatment and the wounds were dressed. He has not returned to boda boda work since then because he needs to get proper treatment which he cannot afford.

This was corroborated by P.W.9 Eguma Casto who testified that at around 8.00 pm he received a call and the caller, who had used the victim’s phone, told him that Innocent was near Hill Top Hotel and had been hit badly; that if he was nearby he should rush to his rescue. He found P.W.7 Endromale Innocent lying on the ground with people surrounding him. He had injuries and he rushed him to hospital to save his life. P.W.4 No. 22645 D/Cpl Opor Nicholas too testified that sometime after 8.00 pm on 30th April, 2019 he proceeded to Arua Regional Referral Hospital where he found the victim lying in a critical condition. P.W.6 No. 34843 D/Cpl Okello Moses testified that when he found the victim in hospital, he

 

took his photos which he tendered in evidence as exhibit P. Ex.9. The injuries were to the left of his head.

Further corroboration is found in the admitted evidence of P.W.1 Wofubo Simeon, a Senior Medical Clinical Officer of Arua Regional Referral Hospital, who he examined the victim P.W.7 Endromade Innocent on 10th May, 2019 (ten days after the incident). He found that the victim had blunt injuries on the head, shoulder, chest and neck. He had a cut wound on the lower lips and on the head. He had a dental fracture, and a fracture of the skull. The probable cause was a heavy blunt object, at velocity. I find that the prosecution has proved beyond reasonable doubt that immediately before, during or immediately after theft of the motorcycle, violence was used against P.W.7 Endromade Innocent.

(C) Possession of a deadly weapon during the commission of the theft.

The prosecution was further required to prove that immediately before, during or immediately after the said robbery, the assailants had a deadly weapon in their possession. A deadly weapon is one which is made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death. In this regard, the court was presented with the oral testimony of P.W.7 Endromale Innocent who testified that he stopped outside the gate to the hotel for his passenger to disembark. Instead, he saw his passenger turn his hand to his back and get out something. On turning round to get a closer look he saw it was hammer. The passenger pulled out the hammer while seated on the motorcycle. The passenger then jumped off and hit P.W.7 at the back of his head. He also hit P.W.7 on the left shoulder, then on both sides of his head. P.W.9 Eguma Casto testified that when he arrived at the scene, he saw that there was hammer on the ground which may have been used during the robbery. He picked the hammer and later handed it to the police at Arua Regional Referral Hospital. P.W.4 No. 22645 D/Cpl Opor Nicholas testified that one of the boda boda riders, whom he could not remember, handed the hammer to him and he exhibited it. He tendered it in evidence as P. Ex.4B.

It was submitted by counsel for the accused that considering the fact that the hammer tendered in court had no blood spatter, appeared new and unused, it could have been planted at the scene by the police to incriminate the accused. I find this to be speculative and not supported by any evidence. The hammer was recovered from the scene by P.W.9 Eguma Casto who then handed it over to P.W.4 No. 22645 D/Cpl Opor Nicholas at the hospital. I have not found any reason why any of the two witnesses could have planted a hammer at the scene. While blood spatter on a suspected weapon can be extremely effective in determining the placement and use of the weapon during the course of a violent crime, its preservation depends so much on how the weapon is handled following its recovery from the scene. In the instant case it was recovered by a lay person not trained in the preservation of trace evidence. There was no evidence to show that the scene was near any construction site or carpentry workshop. Presence of the hammer at the scene was an oddity which is therefore only explainable in the context of the crime. It was in the possession of the assailant that hired the motorcycle.

In any event, what is required by the law is possession of the weapon and not necessarily its use in committing the crime. By its very nature a hammer is an instrument which, when used for offensive purposes, is likely to cause death. I therefore find that the prosecution has proved beyond reasonable doubt that immediately before, during or immediately after robbery of the motorcycle, one of the assailants had a deadly weapon in his possession.

(d) The accused participated in commission of the theft.

The last ingredient that was required to be proved is that each of the accused participated in committing the offence with which they are indicted. This is achieved by adducing direct or circumstantial evidence, placing each of the accused at the scene of crime not as a mere spectator but active participant in the commission of the offence. The evidence implicating each of the accused must be considered separately considering that even though charged jointly, their criminal responsibility is individual. Both accused denied the offence and each raised the defence of alibi. At the time of the robbery, D.W.1 Ogwal Francis Jimmy was in room No.1 at Canarvia Guest House where he spent the rest of the night until his arrest the following day at around 1.00 pm. On his part, D.W.2 Okweny Patrick testified that he spent the night of 30th day of April, 2019 at his home in Lira, arrived in Arua on the morning of 1st May, 2019 to deliver a spare part, and was arrested and subsequently implicated at around 1.00pm at Canarvia Guest House. Each of the accused is under no obligation to prove his defence of alibi but rather the burden lies on the prosecution to disprove it (see Uganda v. Bitarinsha John and another [1975] H.C.B.140 and Sekitoleko v. Uganda [1967] E. A 531}.

To refute those defences, the prosecution relies on the identification evidence of P.W.7 Endromale Innocent who testified that when he raised an alarm, two colleagues of Omara Denis came and joined him. The two accused emerged from Springs Nursery School while he lay on the ground where he had fallen and he saw their faces. The two are the ones in court. There was an electric light at the gate of the hotel and there were security lights on the wall fence of the hotel. They assaulted him at close range as he lay on the ground. The assault took about thirty minutes and he saw them for about thirty minutes during the beating. However, P.W.9 Eguma Casto testified that when he recovered the hammer from opposite the gate of hill top hotel, there was no light. They used flashlights on their phones in order to see the hammer.

I caution myself, as I did the assessors, regarding the reliability of evidence of visual identification made by the single identifying witness, P.W.7 Endromale Innocent, under difficult circumstances. Where prosecution is based wholly or substantially on the correctness of the evidence of an identifying witness, the Court must exercise great care so as to satisfy itself that there is no danger of mistaken identity (see Abdalla Bin Wendo and another v. R (1953) E.A.C.A 166\ Roria v. Republic [1967] E.A 583\ Abdalla Nabulere and two others v. Uganda [1975] HCB 77; and Bogere Moses and another v. Uganda, S.C. Cr. Appeal No. I of 1997).

The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. A mistaken witness can be a convincing one and a number of such witnesses can all be mistaken (see R v. Turnbull [1976] 3 All ER 54). In order to satisfy itself that the evidence is free from the possibility of mistake or error, the court considers; whether the witness was familiar with the accused, whether there was light to aid visual identification, the length of time taken by the witness to observe and identify the accused and the proximity of the witness to the accused at the time of observing the accused.

It is necessary, especially where the identification is made under difficult conditions, to test such evidence with the greatest care, and be sure that it is free from the possibility of a mistake. To do so, the Court evaluates the evidence having regard to factors that are favourable, and those that are unfavourable, to correct identification. Before convicting solely on strength of identification evidence, the Court ought to warn itself of the need for caution, because a mistaken eye witness can be convincing, and so can several such eye witnesses.

I have considered the unfavourable factors being; the assailants were strangers to the victim who that night saw them for the first time. The attack was savage and sudden. There is doubt as to the presence and intensity of the light available at the scene. The witness was lying on the ground, a posture that probably made it more difficult to have a clear view of persons standing over him during the attack. I have further considered the favourable factors being; the witness had ample time to see and talk to his passenger, A3 Omara Denis, and thus may explain his ability to identify him at a subsequent identification parade. It was a relatively prolonged attack. He was able to see that he was attacked with a hammer and indeed a hammer was recovered from the scene, suggesting that the condition of lighting was relatively good and could aid visibility of items seen at close quarters. He saw the two assailants from a distance before they joined the attack. Nevertheless, the conditions unfavourable to correct identification seem to overwhelm those favouring it. This could explain why at a subsequent identification parade he was unable to identify any of the two accused. The possibility of error or mistake cannot be ruled out based only on the identification evidence.

The prosecution further relied on the fact that before court, the witness was able to positively identify the two accused without hesitation. However, dock identification has its own limitations. When a witness whose previous knowledge of the accused has not made him familiar with the appearance of the accused and he is shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime for the first time, will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. “In dock” identification is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock.

This is compounded by the failure of this witness to identify any of the two accused at identification parades held much closer to the date of the offence. It is clear that identification of accused persons by a witness in the dock for the first time, though permissible, cannot be given credence without further corroborative evidence.

To overcome the obvious weakness in the identification evidence, the prosecution sought to corroborate the evidence of identification by reliance on the circumstantial evidence of P.W.8 Anguyo Richard, the cashier Carnavia Guest House, who testified that on 30th April, 2019 D.W.1 Ogwal Jimmy came to the counter and requested for a room. He had a male colleague but he cautioned him that the room was for one. He allocated him Room No. 1. The following day at around 11.00 am D.W.1 returned to the counter and indicated he was staying beyond the check-out time. He told him he should pay for another night and confronted him with information he had received from the askari to the effect that he had accommodated two other people in the room the previous night. D.W.1 apologised to him for having accommodated the two other people in the room during the night and he told him he would not to repeat it. Later the police came to the guest house and P.W.8 led them to Room No. 1 where they found the three accused.

It is trite that an omission or neglect to challenge the evidence in chief on a material or essential point by cross examination would lead to an inference that the evidence is accepted, subject to its being assailed as inherently incredible or possibly untrue (see Habre International Co. Ltd v. Kasam and others [1999] 1 EA 115; Pioneer Construction Co. Ltd v. British American Tobacco HCCS. No. 209 of 2008; R v. Hart (1932) 23 Cr App R 202 and James Sawoabiri and another v. Uganda, S.C. Criminal Appeal No. 5 of 1990). This witness was never cross-examined on the fact that D.W.1 Ogwal Francis Jimmy apologised to P.W.8 Anguyo Richard for having accommodated two other men overnight in a room booked for one. It turned out that one of the two was A3 Omara Denis whom P.W.7 Endromale Innocent positively recognised at the identification parade. Although both accused in their defences sought to distance themselves from A3 Omara Denis by stating it is the police who by some coincidence brought the three of them together at the time of arrest, that version is not plausible at all. It was not by sheer coincidence or manipulation by the police that the three of them were seen together at the guest house before the robbery and found together within hours of the robbery. The claim by D.W.2 Okweny Patrick that he just happened to be playing a game of pool at the same guest house and was victimised for having been overheard speak Langi on phone is clearly a pack of lies.

Additional circumstantial evidence is found in the testimony of P.W.5 No. 30261 D/Sgt Amandi Fabien who stated that on 1st May, 2019 at around 1.00 pm, he found three youthful men in Room No. 1 at Carnavia Guest House. The three were the two accused and the now deceased A3 Omara Denis. He began a systematic search and found nothing under the bed. He stripped the mattress and there was nothing inside. There was a bag in the room and he asked the three youth whose it was and they told him it was theirs and they had personal items in it. He found clothes in the bag and in-between the clothes he found a brand new hammer “colt” make. It had a blue plastic handle. The hammer was exhibited as P. Ex.7. He asked them what the use of the hammer kept inside the bag was but they could not explain.

Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances, often numerous, which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance (see Shepherd v. R (1990) 170 CLR 573; (1990) 51 A Crim R 181; (1990) 65 ALJR 132). To enable a court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable the court to draw. An inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a court from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.

The strands of circumstantial evidence in this case are; - (i) the two accused were seen in the company of A3 Omara Denis at Carnavia Guest House before the robbery and found together inside Room No. 1 at Carnavia Guest House within hours of the robbery, a room that had been booked by D.W.1 Ogwal Francis Jimmy for only one person; (ii) at an identification parade held close to the date of the offence, P.W.7 Endromale Innocent recognised and picked out A3 Omara Denis; (iii) inside Room No. 1 at Carnavia Guest House the three accused had only one bag containing personal effects, which in his defence D.W.1 Ogwal Francis Jimmy acknowledged to have been his; (iv) inside that bag, in-between clothes, was found a brand new claw hammer “colt” make (exhibit P. Ex.7) almost identical to the one recovered from the scene (exhibit P. Ex.4B), which too was a brand new hammer of “colt” make. Both hammers have plastic, blue handles with a red strip, the difference being only in the sizes of the strips

  1. there is no evidence to suggest that either hammer was planted by the police;
  2. none of the accused could explain the presence of that hammer hidden amongst their personal effects; (vi) D.W.1 Ogwal Francis Jimmy stated that before his arrest he was a taxi driver plying the Lira - Corner Kamdini route while D.W.2 Okweny Patrick was a mechanic at a garage in Lira Town; none of those two trades is ordinarily associated with the use of claw hammers; (viii) none of the two accused had any business in Arua that would require them to possess a claw hammer; (ix) while in his defence D.W.1 Ogwal Francis Jimmy testified that 30th April, 2019 was his first time in Arua where he was forced to spend the night because of missing his appointment with D.W.3 Ogwal Adam who had travelled for business in Adjumani, but D.W.3 Ogwal Adam testified that D.W.1 Ogwal Francis Jimmy had come to Arua twice before and spent the night in Arua on one of those occasions and that on that day he had travelled to Koboko and not Adjumani since he has no business dealings in Adjumani. The contradictions were never explained; (x) being found in possession of a claw hammer over two hundred kilometres away from their ordinary places of work implies its use was associated only with an activity planned to take place in Arua; (xi) the robbery which occurred the evening before involved an identical claw hammer.

Circumstantial evidence must, of course, be weighed with caution. Yet, when the strands of such evidence are of sufficient quantity and proper quality, these strands, as in the instant case, make up a rope that is strong enough in probative force to constitute at least substantial evidence that will justify a finding of guilt. The circumstantial evidence in this case corroborates the identification evidence of P.W.7 Endromale Innocent to an extent that removes the possibility of mistake or error. The assessors do not seem to have analysed the circumstantial evidence as closely enough as I have done and for that reason I find myself constrained to differ from them. The only rational inference that the court can draw from the cumulative weight of the circumstances, is that the two accused were the two men P.W.7 Endromale Innocent saw joining A3 Omara Denis in the commission of the crime. The direct visual identification evidence of P.W.7 Endromale Innocent, corroborated by circumstantial evidence, placed each of the two accused at the scene of crime as an active participant in the commission of the offence and thereby effectively disproved each of their respective alibis.

I have considered the doctrine of common intention under section 20 of The Penal Code Act. By that provision, when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence. The accused before me set out in conjunction with one another to rob the motorcycle. Consequently, each of them is deemed to have committed the offence proved by evidence to have been committed during that unlawful transaction. It is immaterial that at the time of commission of the offence, it was only A3 Omara Denis who had a deadly weapon in his possession. In the final result I find each of the two accused guilty and each of them is accordingly convicted of the offence of Aggravated Robbery C/s 285 and 286 (2) of The Penal Code Act.

Dated at Arua this 24th day of September, 2020.

Stephen Mubiru, Session Judge.

SENTENCE AND REASONS FOR SENTENCE

According to section 286 (2) of the Penal Code Act, the maximum penalty for the offence of Aggravated Robbery is death. However, this punishment is by sentencing convention reserved for the most extreme circumstances of perpetration of such an offence such as where it has lethal or other extremely grave consequences. Examples of such circumstances relevant to this case are provided by Regulation 20 of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 to include; the use and nature of weapon used, the degree of meticulous pre-meditation or planning, and the gratuitous degradation of the victim like multiple incidents of harm or injury or sexual abuse. This case not fitting the description of “rarest of the rare,” I have not imposed the ultimate punishment.

Where the death penalty is not imposed, the next option in terms of gravity of sentence is that of life imprisonment. Regulation 22 of The Sentencing Guidelines outlines factors that may justify imposition of a sentence of life imprisonment. These include; (a) degree of injury or harm; (b) the part of the victim’s body where harm or injury was occasioned; (c) repeated injury or harm to the victim; (d) degree of intention to cause death or culpable negligence; (e) use and nature of the weapon; (f) the role of the offender in a group or gang or mob involved in the commission of the offence; (g) whether the offence was motivated by an intention to cause bodily harm; (h) whether the offence is a result of culpable negligence to discharge a duty tending to the preservation of life; or (i) any other factor as the court may consider relevant. Only one aggravating factor so prescribed would justify the imposition of a sentence of life imprisonment, is applicable to this case, i.e. the victim sustained injury to her private parts.

A sentence of life imprisonment may as well be justified by extreme gravity or brutality of the crime committed, or where the prospects of the offender reforming are negligible, or where the court assesses the risk posed by the offender and decides that he or she will probably re-offend and be a danger to the public for some unforeseeable time, hence the offender poses a continued threat to society such that incapacitation is necessary (see R v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410). There are cases where the crimes are so wicked that even if the offender is detained until he or she dies it will not exhaust the requirements of retribution and deterrence. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required (see R v. Edward John Wilkinson and Others (1983) 5 Cr App R (S) 105 at 109).

I have considered the circumstances in which the convicts committed the offence. The victim was lucky to have survived the attack. Many boda boda riders all over the country have not been that lucky and have lost their lives at the hands of offenders like the two convicts before this court. Organised crime cases often call for a sentence of life imprisonment on the assumption that the convicts cannot be trusted to remain law-abiding due to the on-going and serious nature of the crimes, and the fact that many offenders are repeat or career criminals. Considering that this was part of organised crime, the court assesses the risk posed by the two convicts and decides that they will probably re-offend and be a
danger to the public for some unforeseeable time. Hence the two convicts pose a continued threat to society such that total incapacitation is necessary. It is for those reasons and in light of those aggravating factors that each of the convicts deserves to spend the rest of his natural life in prison. Each of the convicts is hereby sentenced to Life imprisonment. Each of them is to spend the rest of his natural life in prison.

It is mandatory under section 286 (4) of The Penal Code Act, where a person is convicted of Aggravated Robbery c/s 285 and 286 (2), unless the offender is sentenced to death, for the court to order the person convicted to pay such sum by way of compensation to any person to the prejudice of whom the robbery was committed, as in the opinion of the court is just having regard to the injury or loss suffered by such person. Although the motorcycle was never recovered and the victim sustained grave bodily injuries, I have not found evidence to show that any of the convicts has the means to pay compensation. I have for that reason not made an order to that effect.

The convicts are advised that they have a right of appeal against both conviction and sentence within a period of fourteen days.

Stephen Mubiru

Appearances

State Attorney: Ms Harriet Adubango

For the Accused :Eyokia Jill Dawa

Session Judge

 

: Ms. Harriet Adubango, : Ms. Eyokia Jill Dawa.