Mbazira & Another v Uganda (Criminal Appeal 7 of 2004) [2007] UGSC 33 (20 March 2007)

Full Case Text

# IN THE SUPREME COURT OF UGANDA **AT MENGO**

## CORAM: ODER, KAROKORA, MULENGA, KANYEIHAMBA AND KATUREEBE JJ. S. C.

### CRIMINAL APPEAL NO. 7 OF 2004

#### **BETWEEN**

#### 1. MBAZIRA SIRAGI 2. BAGUMA HENRY ::: :::::::: **HILLING APPELLANTS**

#### AND

#### UGANDA:::::::::::::::::::::::::::::::::::

(Appeal from the judgment of the Court of Appeal (Okello, Engwau and Kitumba JJ. A) at Kampala, in Crin inal Appeal No.126 of 2002, dated 8th October 2004)

#### JUDGMENT OF THE COURT.

Mbazira Siragi and Baguma Henry *alias* Karuna, the 1st and 2nd appellants in this appeal, were convicted by the High Court (Mugamba J.) at Mbarara, on two counts for simple robbery. They were both sen enced on each count to 15 years imprisonment to run concurrently. Their appeals to the Court of Appeal against conviction and sentence were dismissed, hence this second at peal.

The prosecution case may be described in two segments. The first comprises the evidence adduced to prove the robber es. The second comprises evidence on discovery of stolen items and a gun and bullets the robbers had during the robberies, which evidence was adduced to prove that the aplellants were among the robbers. We would summarise the case as follows:

In the night of 23'd septemter 2000, at about l0 p.m., three men armed with a gun, attacked Erineo Turinawe, pv'r, and his wife winnie, pw6, at their house in which they also operated a bar. They bea the victims, tied them by the ams and forced them to rie down, while they store diverse goods, incruding r7 bottles of beer, a jerrycan of waragi, a radio cassette, 30 rnusic taper i, a handbag, a pair oftrousers and ajacket, which they packed in sacks. They demand:d money as they continued to beat their victims until pW6 surrendered an unascertained r mount from the day's bar sares. The robbers then ordered PWI to cause the neighbour, I.atarina Kikabahenda, pw2, to open her house cum shop. when Katarina opened, the roL bers attacked her also. one of them repeatedry hit her with the butt of a gun demanding for money. while the other two stole her shop items including l0kgs ofsugar, a bo; ofsoap, 3 packets ofHedex tabrets, pepsi packages, and a4" mattress. In addition, sle surrendered to the robbers shs.75,000/\_. The victims reported the robberies to the L( I Chairman and to Ishunguriro police post. None of them recognised their assailants. It is also noteworthy that even subsequently the victims never identified any of the appellants rs one of the robbers.

on ?5'h septernber 2000, pwl round one Kwizera Fred, pw3 praying one of his storen music tapes. Kwizera told him l,e had borrowed it from Mbazira. upon confirming from amark on it that it was his, he ;ought assistance from the Locar Defence Unit (LDU) at Ishunguriro detach. Four of the LDU personner retumed with him to Kwizera,s home. They asked Kwizera fo. the tap: and he said that Mbazirahad taken it. They went with

Kwizera to Mbazira's home. \y'hen asked for the tape Mbazira denied any knowledge of it. They searched his house br t did not find the tape. Mbazira was arrested and taken to the LDU detach. Kwizera was not arrested. Between 26th and 29th September 2000, Saad Gumisiriza, PW4, of the sr:id detach, with other LDU personnel continued the investigations to trace the s olen goods. In the course of the investigations, they discovered around the home ol Mbazira, a radio cassette, half a jerry can of waragi, a gun and bullets. They also discovered a 4" foam mattress from the home of Baguma Henry alias Karuna; and lkg ofsugar, a box ofdry cells and a tin of sleeping baby cream from the home of Mbabazi. They arr:sted Mbazira and Baguma the two appellants and the said Mbabazi, who was later acquired by the trial court. They also arrested two other persons who apparently were never cha'ged. The gun and bullets were passed on to the police and Iater produced in court but the rest of the discovered items were given to the respective claimants and were never prodt ced in evidence.

The appellants, together with Mbabazi, were indicted on two counts for aggravated robbery. As the three eye witn:sses did not identifu the accused as their assailants, the prosecution relied on the evid,rnce that the discovered items were some of the stolen goods and that they were found in the possession of the accused soon after the robberies. The trial court accepted the evi lence, applied the doctrine of recent possession of stolen goods, and held that the appell rnts committed the robberies. Mbabazi was acquitted on the ground that the iterns taken from his home were not particularly identified as items stolen during the robberies. Fur iher, the court was not satisfied that the robbers used or threatened to use the gun produ:ed in evidence. Accordingly, it convicted the appellants of the lesser offence of simple robbery on both counts. The court of Appeal upheld the convictions on strength ofthe sa ne doctrine ofrecent possession of stolen goods.

In this Court two grounds of i ppeal were framed in the Memorandum of Appeal, but in the written submissions filed r nder r.93 of the Rules of this Court, Mr. Robet Tumwine, counsel fbr both appellants, at andoned the second ground and, quite rightly in our view, argued the first ground alone. which adequately covers the substantive complaint. The only ground ofappeal for our r onsideration therefore, is that -

### "Thc leorncd Juslices of A.tpeul erred in hw when they fttilctl to correctly re-ew uule llte prosecutitn evidence obout the recovered property."

In his submissions, the Ieamed counsel stressed that the circumstantial evidence on which the prosecution case rested wai, not strong enough to sustain a conviction. He pointed out that the witnesses' descripti< ns of the stolen items were insufficient and that the discovered items were not pa;sed on to the police let alone produced in evidence to satisfy the court that they rratclred the description ofthe stolen goods. He also argued that the alleged searches in the app:llants' homes and discovery of the items were not in the presence ofthe appellants, and that the appellants' respective evidence in defence was not taken into account. Leamed counsel pointed out that both appellants had denied possession ofthe discovered itt ms and stressed that the prosecution evidence alleging the possession was adduced from an uncorroborated single witness. He criticised the trial court for applying the doctrine rfrecent possession in those circumstances, and the Court of Appeal for upholding the arplication of the doctrine, when there was not sufflrcient evidence to connect the disr overed items to the stolen goods and despite other deficiencies. Counsel also subrritted that the gun produced in evidence was not the gun used in the robbery.

In his written arguments in rel 'ly, Mr. Andrew Odiit, Senior State Attomey, submitted that the Justices ofAppeal had :orrectly re-evaluated the evidence and rightly upheld the trial court's finding that the dis,;overed items were sufficiently identified as stolen goods.

He argued that it was through :roper re-evaluation ofevidence that the Justices ofAppeal came to the conclusions, first, that the stolen mattress was not adequately described, and secondly, that the use of a 1;un during the robbery was not sufficiently proved. The leamed Senior State Attornr y further pointed out that the Justices of Appeal had considered the failure to prod rce the recovered items in evidence as exhibits and found the fact that the investigations were flrst carried out by the military rather than by police to be a reasonable explanation

It is common ground that the conviction of the appellants rests solely on circumstantial evidence and specifically on tl e doctrine of recent possession. In the Court of Appeal, the appellants contended in grour d I that the discovered goods were neither produced nor sutiiciently described in evi< ence; and in ground 2 that the trial judge misdirected himself in applying the doctri Te of recent possession to the evidence before him. In its judgment, the Court ofAppeal held first, that the radio cassette, the tape and thejerry can ofenguli were described to th: court with enough accuracy and were properly identified by PW I , and the gun was prol erly identified by PW4 and PW7. Secondly, the court held that the radio cassette, the tapes and the gun with a full magazine of ammunition were discovered hidden around the rome of Mbazira. Thirdly the court upheld the decision of the trial judge that there was no evidence to show that the gun was used during the robberies and in that regard ob ;erved -

## "If PWI ond Pll2 hud treard ony gunshol on the night of the said robbery, then it wtrs.frotn anolh''r gun."

Lastly, the leamed Justices o' Appeal reviewed submissions of counsel on ground 2, which was that the doctrine of recent possession was wrongly applied to the facts of this case. In concluding their consir leration ofthat issue they said -

"Mr. Odit for the respondent ..... submitted, rightly in our view, that the learned trial judge rightly applied the doctrine of recent possession to the facts of this case. PW4 testified that it was the 2nd appellant [Mbazira] who led him and other LDUs to his home where the radio cassette, tapes, a jerrycan of enguli and the gun were recovered. We agree with Mr. Odit that it was impossible for the gun to be recovered before the offence was committed. According to the evidence on record, the investigations were conducted first by the army and later by the police. We think that explanation satisfactorly establishes why there was a delay in exhibiting the gun.

On the question of a mattress, PW4 stated that it was found in possession of the $1^{st}$ appellant [Baguma]. The evidence of PW2 who said that the mattress was found at the home of one Kihondo is hearsay and should not have been admitted in evidence. She did not disclose the name of the person who told her that the mattress was found at the home of Kihondo. However, PW4 clearly stated that the mattress was found at the home of Karuna who is actually the $1^{st}$ appellant. PW2 stated that she identified the mattress by its bluish and unique cover. We find no explanation about the uniqueness of the cover. We, therefore, agree with Mr. Mubiru, that the mattress was not sufficiently described. That notwithstanding, ground 2 *fails in part.*" (Emphas s is added)

With the greatest respect to the learned Justices of Appeal, we think the criticism that they did not properly re-evaluate the evidence is justified. First, their view that the initial conduct of the investigations by the army was a satisfactory explanation for the delay in exhibiting the gun was erroneous. As we shall explain later in this judgment, the issue raised before them, which was reiterated in this appeal, was not delay in exhibiting the gun. The issue was that the gun exhibited in court could not be the gun used in the robbery let alone discovered from Mbazira's home. More importantly, however, we disagree with the implicit notion that investigation standards may be compromised where the investigations are conducted by the army. On the contrary, we should stress that in such circumstances the court must ensure that the investigator's shortcomings do not prejudice the justice of the case. Secondly, the learned Justices did not re-evaluate the

evidence as a whole as the / are required to do. They only reviewed the prosecution evidence without considering its cogency and did not consider the defence evidence save that in their judgment, they said in passing that each appellant denied the offence and set up an alibi. Thirdly, although the incriminating evidence against the appellants was virtually from a single witness, the learned Justices did not consider his credibility, which was particularly put in issue by the defence allegation that he was motivated by a grudge to frame Mbazira. Fourthly, the learned Justices did not consider separately the case against each appellant, so as o be sure of the guilt of each beyond reasonable doubt.

On the whole, we find that he learned Justices of Appeal did not subject the evidence against the appellants to that degree of scrutiny and re-evaluation as an appellant is entitled to expect from the first appellate court. In the circumstances, and on the principle enunciated in *Bogere Moses & Another vs. Uganda* 1SCD (Crim) 1996/2000 p.185, we are satisfied that this is a clear case where, owing to the failures of the first appellate court, it is incumbent on this Court to re-evaluate the evidence.

The law on proof of a criminal offence by circumstantial evidence is as was articulated by the Court of Appeal for Eastern Africa, in the leading case of *Simoni Musoke vs. R*. $(1958)$ EA 715, at p.718 that -

"... in a case depending exclusively upon circumstantial evidence, (the judge) must find before deciding upon conviction that the inculpatory facts were incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt."

In the same case, the court a so cited with approval, the principle stated in **Teper vs. R.** (2) (1952) A. C. 480 (PC) that $-$

## "It is also necessarJ' b;fore drawing the inference of the accused's guilt from circumslantitl ev,dence to he sure lhut there are no other co-exisling circ'untstances which tr quld u)eaken or destroy the inference."

The doctrine of recent possession of stolen goods is an application of the ordinary rule relating to circumstantial evid:nce. The fact that a person is in possession of goods soon after they are stolen raises a p 'esumption of fact that that person was the thief or that that person received the goods lnowing them to be stolen, unless there is a credible explanation of innocent posse;sion. It follows that the doctrine is applicable only where the inculpatory facts, namely the possession of the stolen goods, is incompatible with innocence and incapable of exrlanation upon any other reasonable hypothesis than that of guilt. The court must also be sure that there are no other co-existing circumstances that weaken or desroy the inferen< e of guilt.

The starting point tbr the apJlication of the doctrine of recent possession, therefore, is proof of two basic lacts bey<,nd reasonable doubt; namely, that the goods in question were found in possession of th: accused and that they had been recently stolen.

Accordingly, in re-evaluating the evidence adduced against each appellant we have to consider it trom two perspecti''es; namely whether the evidence proves that -

- l. the found items (or any rf them) were stolen during the robberies in question; - 2. any of the appellants wa s in possession of any of the found items.

The prosecution relied on the r omplainants, PWl, PW2 and PW6, to prove that the found items were goods stolen durin 3 the robberies, while PW4 was the principal witness as to the itern or items lbund in the :ossession of each appellant. However, we are constrained to observe, with due respect k' the learned trialjudge, that the recording ofthe evidence leaves a lot to be desired. Tt e evidence is unduly fragmented and marred by hearsay evidence. The record also con.ains allegations of confessions/admissions to PW4 by the

appellants and co-accused 'vhose admissibility is doubtful. Clearly, however the lower courts did not base their respective decisions on any of the confessions/admissions and we find it appropriate to ignore them. Be that as it may, we shall only re-evaluate what is pertinent and admissible evidence.

None of the complainants vitnessed the finding of any of the items. The music tape, which PW1 found Kwizera playing, was not seen again and was not among the found items. The complainants were only called to the LDU detach to receive the items found by PW4 and his colleagues. FW1 testified that he recovered from the LDU detach a radio cassette, a jerrycan of waragi and 6 empty beer bottles. He identified the radio cassette by a mark of "T" he had previously made on it signifying his name "Turinawe". He identified the jerrycan by the name "Paulo" written on it to signify the person from whom he bought it. It is not clear if his wife, PW6, went to the detach with him. She simply testified that they got the radic cassette, half a jerrycan of waragi and empty beer bottles. Like PW1 she testified that the jerrycan was identified from the name "Paulo" written on it, but unlike him she testified that the radio cassette was not marked. PW2 testified that when she was called to the LDU detach, she recovered only the 4" foam mattress, which she identified from its bluish ar d unique cover.

Apart from the gun and bullets, the rest of the found items were not produced in evidence. According to PW4, the radio cassette, jerry can, beer bottles and mattress were returned to the robbery victims on the orders of Major Kahimbo. PW1 testified that subsequent to recovery of the radio cassette he sold it on 23rd February 2001, but he did not say what he did with the other two items. PW2 testified that the mattress was at her home. It is apparent that the lower courts did not consider the failure to produce the items in evidence, to be significant. However, we cannot over-emphasise the importance of producing the items in issue as exhibits in order that the court is able to verify that they fit their description by the witnesses. In this regard we think that the learned Justices of Appeal did not properly direct themselves on evidence where they said –

"[We] think that PW1 had sufficiently described his radio cassette and the tape to court with enough accuracy. He identified both items with letter "T" for his name "Turinawe" that he marked on them. The evidence of his wife, PW6, that there was no mark on those items can be ignored as she might not have known of the marking. It was PW1 who marked the same. Similarly, PW1 properly identified the jerry can of enguli which he had marked with the name "Paulo" who sold him the stuff". (Emphasis is added)

In the first instance, reference to the tape in this context is an error as the tape was not among the found items. Secon ly in our view, the court was not in a position to hold that the items were "*sufficiently described to court with enough accuracy*" because it did not see the items. The distinguishing description of the items was the marks on them, which the court did not see and therefore did not verify. Thirdly, we note the explanation by the learned Justices of Appeal for gnoring the apparent discrepancy between the description of the radio cassette by PW1 and PW6, but have to observe that the evidence of PW6 is equivocal. Her averment that 'the radio cassette was not marked" may have referred to the radio cassette that was robbed or to the radio cassette that was recovered. If it was the latter, that explanation by the court would not hold and the averment by PW6 would raise serious doubt about the identif cation of the radio cassette as the one robbed from PW1 and PW6. In the circumstances, the most that a court can hold on basis of PW1's evidence, without independent verification, is that PW1 claimed the items shown to him at the detach as some of his stolen goods. That is on the same footing as PW2's claim that the mattress shown to her at the detach was the mattress stolen from her, which claim the Court of Appeal rightly held to be inadequate proof. In our view, the evidence of identification of the found items as stolen goods is at best very weak for lack of the support that might have been provided by producing the items in evidence as exhibits.

As indicated earlier in this judgment, the sole witness to the fact that the items in issue were found in possession of the appellants was PW4, an LDU personnel who apparently led the search for the items s olen during the robberies. However, the circumstances of his assumption of that role, to the exclusion of the police, are not clear, given that the victims reported the robberies to the police. Be that as it may, PW4 testified that while he was coming from Bihanga [military] barracks, the LC1 Chairman, PW5, told him of armed robberies that had occurred in his area against PW1 and PW2, whereupon he started investigations for recovery of the stolen property. He first sent out people, including one Magezi, to check on information that PW1 heard his stolen tape being played by one Kwizera and to gather other intelligence. Because of what we observed earlier about the recorded evilence, we are constrained to reproduce as recorded by the trial judge, excerpts of PW4's pertinent evidence on the discovery of the found items during two separate visits to the $1^{st}$ appellant's home and one to the $2^{nd}$ appellant's home. In respect of the first visit he testified -

"I found Mbazira [1st $\varepsilon$ ppellant] clearly arrested by Magezi. He was at the detach. Mbazira spoke to me in fact and he told us that he had the radio cassette. He told me upon interrogation. He said the radio was at his home. Mbazira is my brother so we agreed he would give me the radio and that implications would come to an end. He took me to his house together with other LDUs. He colled his wife and told her to go and bring the radio. She went to the banan't plantation near the bush and brought the radio. After that I took Mbazi a back to the detach. We collected the radio." (Emphasis is added)

In the course of further investigations PW4 arrested Karuna, Lubahizi, Mbabazi and one SPC called Kaweesa, and he collected items from Mbabazi's home. He testified further –

"We asked Karuna who told us that the gun they used was kept by Mbazira's wife. Unknown led us to Mbazira's but the wife was not there.

We went to where they had gone. The wife went with us to Mbazira's home where in the garden of sweet potatoes there was a gun and the bottles of beer. The second wife got the gun from there. There was also half jerry can of waragi which w is in a bush near the home. There was spare parts of bicycles and other shop items which we recovered in the courtyard. Tapes were also buried in the compound. There is also sleeping baby jelly and about 25 or 26 b illets which had been dropped in the pit latrine. These [were] retrieved in polythene paper........ I can't recall whether there were 27 or 29. Some were in a magazine but others were not..."

On this second visit to the horr e of the 1st appellant PW4 collected –

- tapes buried in the compound and bicycle parts and shop items in the courtyard; - half a jerrycan of waragi in a bush near the home; - a gun and beer bottles in a garden of sweet potatoes; and - bullets that had been dropped in a pit latrine.

$\mathcal{L}$

On the order of Major Kahimbo he handed the gun and bullets to the intelligence officer at the Bihanga barrack; and the rest of the items to the Chairman LC1 to hand over to the owners.

The 1st appellant testified in hi: defence that he knew nothing about the robberies and that his arrest was not connected with any robbery. He also denied ever dealing with Kwizera. He testified that on 26th September 2000, six soldiers found him at home and questioned him about maize he had purchased and he explained that he sold it to the public from his shop. They searched his house and then arrested him and took him to Bihanga barracks. When he asked why he was being arrested "They said they did not know where [he] took the maize". He was tortured and detained at the barracks for 4 days and later was transferred to Ibanda, and subsequently to Mbarara, police stations. He was not questioned about any robbery cr gun at either police station. He knew of no further search or discovery of items at his hor is subsequent to his arrest.

Furthermore, the l" appellant testified that PW4, was his cousin, and was close to him until they had a dispute over a plot of land, which culminated in a court case and he obtainedjudgment in 2000. H,'contended -

## "This is why I am here in tr,rison Sadi [PW4] is the one who caused me ptoblems."

There are a number of unexplained and/or unsatisfactory features in the prosecution evidence adduced to prove rhe guilt of the lt' appellant. The first is that case was investigated by the army rathr r than the police. The possibility that the l't appellant was initially arrested for reasons rrther than robbery, as he claimed, was not ruled out. The second feature relates to matt rial discrepancies in the evidence concerning the gun and bullets as well as that concern ng the music tapes. PW4 testified that the gun found in the potato garden at the [" appellant's home was an SMG number 14103041 and that the buf lets that had been thrown n the pit latrine were about 25-26 or 27-29 and that they were in a polythene bag. He stnt them to Ibanda Police station. He then identified a gun with a broken butt, bearing tte same number, and a full magazine of bullets as the gun and bullets he discovered at N bazira's home. He did not explain how the loose bullets in a polythene bag carne to be i r a full magazine of 30 bullets. What is more, PW7, D/C Turyahikayo, testified that ac:ording to the police store records, the gun and magazine produced in court were recei',ed at Ibanda Police Station on l3th April 2000 and were translbrred to Mbarara Police Station on 20th October 2000. Counsel for the appellants, quite legitimately argued that the gun, which had been in police possession from l3'h April 2000, could not have b:en discovered in Mbazira's possession, over five months later, on 261h September 2000. In view of that, the evidence that the gun and the magazine produced in court were tbund in the I't appellant's home cannot be true. When this issue was raised in the Court of Apteal, the purported explanation volunteered by counsel for the respondent, which was sul?risingly adopted by that court, was that: "The investigations were c'onductec first by the army and later by the police-" That court held that "that explanation satisfactorily establishes why there was a delay in exhibiting the gun." With due respect, however, the issue was not that there was delay in exhibiting the gun, but that the gun and bullets could not have been discovered in Mbazira's home because at the material time they were in the police store. It is noteworthy that the learned trial judge did not accept the evidence that the gun and bullets produced in court were used during the robberies.

Additionally, though PW4 testified that he found tapes buried in the compound at the 1st appellant's home, PW1 testified that he did not recover his stolen tapes. It is not probable that there were tapes, which were discovered but not returned to PW1.

In the circumstances, we are inclined to hold that PW4'testimony falsely testified that he found at the 1st appellant's home the exhibited gun with the magazine of bullets and music tapes, cannot be true. In our view, that finding raises considerable doubt on the credibility of the rest of PW4'; evidence, and renders it unsafe to base a conviction on his evidence alone. We considered whether his evidence was corroborated. The only semblance of corroboration, which we concluded was not sufficient corroboration for that evidence, was the testimony of PW5, Herbert Karamagye, the LC1 Chairman, who simply stated $-$

"I was present when the radio cassette was recovered from Mbazira's place. After its recovering it remained at the LDU detach until we recovered other items. I saw other items after they were recovered. I was called to the detach where I found a mattress, waragi in a jerry can and women's lotion. I calle I the owners of the property..."

This testimony lacks minimur a detail for it to suffice as corroboration of PW4's evidence that on 26th September 2000, on the 1st appellant's instructions, his wife fetched the radio cassette from the banana plantation near the bush.

The evidence adduced against Baguma Henry alias Karuna, the 2nd appellant, is very scanty and was also given by 'W4. He testified that Karuna was implicated by Mbabazi, who was co-accused at the trial but was acquitted. He testified -

"Later the mattress wes found at Karuna's home. The Chairman LC III took us to Karuna's home. Karuna holding a gun with the mattress (sic) and afterwards we arrested him. There was nothing apart from the mattress. We arrested him and brought him to the detach."

The phrase: 'Karuna holding a gun with the mattress' is vague and appears to be a mis recording of evidence. It cannot mean that Karuna was found holding the gun and the mattress because elsewhere the same witness asserted that the gun was found in Mbazira's garden of sweet potatoes. No other witness testified to the recovery of the mattress or that it was found in Karuna's possession. Instead, we note two assertions that are inconsistent with that. First, Mbabazi told PW4 that it was Mbazira who remained with the mattress as part of his share of the loot. Secondly, PW2 whose mattress was stolen testified that when the recovered mattress was returned to her at the detach, she was informed that it had been found in Kihondo's home. The Court of Appeal held that this information was hearsay and should not have been admitted in evidence because PW2 did not disclose the person who informed her. We agree that the information was hearsay and was not admissible to prove where the mattress was discovered. However, the fact of the statement being made to her may be taken into account in considering the consistency of the evidence on the investigations.

For his part, Baguma Henry *alias* Karuna testified that on 23rd September 2000 he was at home attending to his very sick mother. On 29th September he went out at night to buy medicine prescribed by the dcctor for the patient. He was arrested in Katooma Trading Centre at about 1.30 a.m. by soldiers on patrol, allegedly for moving at night. He was taken to the army detach for ovemight and to Bihanga barracks for one day. He was then transferred first at Ibanda Pr 'lice station and later to Mbarara. After arrest he never returned home and therefore, I new nothing about his home being searched'

His conviction at the trial wa;rbased on the evidence that the mattress was found in his home. The leamed trial judge noted in his judgment, that the accused raised an alibi and testified that 'he i)os arrestel in connection with matters relating to state security and not robbery'. However, withort evaluating that defense evidence the trial judge in effect held that despite the alibi, the prosecution had, through the doctrine ofrecent possession, placed Karuna at the scene ol crime. In our view, however, the 2'd appellant's alibi was not disproved. As we have sai J in respect ofthe l't appellant, the undisputed fact that the 2"d appellant was arrested by .he army tends to lend credence to his version that he was initially arrested in connectior with matters relating to state security rather than robbery. That together with the observi tions we have just made on the inconsistencies conceming the mattress, lead us to the corrclusion that the prosecution evidence is too weak to prove beyond reasonable doubt that lhe mattress was found in the 2nd appellant's possession.

What is more, the weakness i; exacerbated by insufficiency of proof that the recovered mattress was the mattress sto en from PW2 during the robbery. The leamed Justices of Appeat, in agreement with c runsel for the appellant, quite rightly found merit in the contention that the mattress altegedly found in Karuna's home 'was not suficiently elescribed' as the stolen matl :ess. With the greatest respect to the leamed Justices of Appeal, we are puzzled by thr ir holding that notwithstanding that insufficiency, 'ground 2fails in part '. While it is not clear what part of ground 2 failed, the successful part must be the finding that the mattre ;s was not sufficiently described, which finding obviously raised critical doubt on whetlrer the discovered mattress was the stolen mattress, That

doubt renders the conviction of Baguma Henry alias Karuna unsustainable. The doctrine of recent possession was erroneously invoked because it was not proved beyond reasonable doubt that he wa; in possession of the mattress and that the mattress was recently stolen. We should observe that the case against him was no stronger than that against Mbabazi who allegedly implicated him but who was acquitted because the articles found on his premises were not properly identified as stolen items.

For the reasons we have given, we find that it would be unsafe to uphold the conviction of either appellant. Accordingly, we allow this appeal, quash the conviction of both appellants and set aside their sentences.

DATED at Mengo this $20^{th}$ d iy of Movch 2007.

A. H. O. Oder Justice of the Supreme Court

Kos A. N. Karokora

Justice of the Supreme Court

J. N. Mulenga Justice of the Supreme Court

Kanveihamba

Justice of the Supreme Court

B. Katureebe Justice of the Supreme Court