Uganda v Musinguzi and Another (HCT-01-CR-SC 112 of 2010) [2011] UGHC 186 (18 May 2011)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT FORT PORTAL

# HCT-oI-CR-SC-O112 - <sup>2010</sup>

UGANDA PROSECUTOR

#### VERSUS

## A1 MUSINGUZI DAVID AKA DAUD... .......... ACCUSED A2 CHRIS MUNYORO

## BEFORE: THE HON. MR. JUSTICE AKIIKI - KIIZA

#### JUDGMENT

The accused persons are indicted for Robbery with Aggravation contrary to section <sup>285</sup>and 286 (2) of the Penal Code Act, in that they and others still at large on the 2lttolzoog at Kitumba village in Fort Poftal, Kabarole District, robbed Basaliza Francis of cash, 1.3 million and air time, worth 2.4 million and at or immediately before or after the robbery poured acid on him.

Both accused on their part gave unsworn Statements wherein they denied the offence and said he simply saw themselves being arrested.

The burden of proof iS upon the prosecution to prove the case against the accused person. He has no legal burden to prove his innocence. The standard of proof is beyond reasonable doubt. The ingredients of Robbery with aggravation are as follows:-

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i) There must have been theft.

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ii) Which was accompanied by violence or a threat of vrolencg. i (-Ol lliT F0RT PORTra.l

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- Death occurred, or grievous harm was occasioned or a deadly weapon was iii) used or threatened to be used during the robbery. - The accused person must have participated in the robbery. $iv)$

The defence and the prosecution during submission, intimated to the court that both sides were satisfied beyond reasonable doubt that, PWI's property and cash were stolen, that whoever did so used violence and that the victim has suffered grievous harm. From the evidence on the record, especially evidence of PWI and the victim PW2, it is clear that, his cash of 1.3. million and airtime worth 2.4 million were stolen during the robbery.

Also for PWI's evidence and exhibit PEI, the victim suffered injuries which were classified as a "main" and which falls within the definition of grievous harm under S. 2(f) of the Penal Code Act. In the premises therefore, I agree with both Learned Counsel that, theft, use of violence and causing grievous harm were proved by the prosecution beyond reasonable doubt. The defence however contested the alleged participation of the accused persons in the robbery.

The prosecution is largely relying on the evidence of both PW2, the victim and PW4, who said they saw the accused flee the scene. According to the victim (PW2), he was at his business premises on the material day. He had just finished the business of the day and was preparing to go home, when he was attacked by thugs and acid was poured on him. He told court that, he had a safe containing his money and the unsold airtime in his right hand, and he was trying to open the door of his store, when someone said "hullo" and he turned to look at that person. That he then saw a person holding a cup move towards him with the cup in the extended hand, who then poured some substance on him which had a burning sensation on his face and body. That he had recognized A1, as the person who held the cup and who had


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I Roured the burning substance on him. That as PWI was feeling the burning on his body, he let go the safe, which fell down and that A1 bent to retrieve it, and was joined by A2. That he saw both of them with the aid of the electric lights which were on around the scene.

That as he kept raising an alarm, the accused people ran away. The victim then was taken to hospital for medical attention as Virika hospital before being taken to Mulago hospital. He told court that he knew both accused before the incident. A1 was a resident of the area where he had business and A2 was once his employee.

He also informed coutt that apart from seeing A1, he also had recognized his voice, as the person who had said hullo before pouring the substance (acid) at him'

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According to PW4, A1 is his neighbour and they studied together. As for A2 he had worked with him at the victim's farm. That he recalled one day either in October or November 2009, while attending a funeral vigil, he heard an alarm which appeared to emanate from PW2's working place. That they avoided the main road and took <sup>a</sup> cut, and then saw people run from the direction of PW2's premises, towards <sup>a</sup> latrine. That he recognized them as the accused person. That he was able to see a them as there was an electric light at the latrine as well as moonlight. That as they were coming towards them, he decided to hide nearby. That A1 had a cap on his head but he could see his face and was carrying a jacket. A2 had a grayish or blackish clothes. That A1 had a metallic box, which he used to see at PW2's pub, and where he used to keep money and airtime. When he eventually reached PW2's premises he was taken to hospital. informed that the accused had <sup>u</sup> he was

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O pW6 was the investigating officer in this case. He told court that, he had received information from PW3, that, A1 had brought him bundles of airtime and money on the night. PW3 and A1 used to stay in one house. That after A1 was arrested he escaped from police custody but was later re-arrested, by PW7 a police officer who effected A1's arrest from Migodde village in Luwero District. This was in lune 2010.

On their part both accused persons made unsworn statement and denied the offence, According to A1, he came home on the t3lttl2009 to collect money for school. He was given money. Before he could go back, he was arrested on the 25lLllzOOg. That they had searched his home but recovered nothing and that after detaining him for 3 days he was released.

According to A2, all the prosecution witnesses had lied against him. And that he saw hlmself being arrested. Those in brief are the facts. The prosecution is insisting that it was the accused people who robbed PW2's property. But both accused denied the offence in their unsworn statements to the Court'

I have carefully considered all the evidence on the record and I have critically analysed the demeanours of all the prosecution witnesses and those of the accused O persons, I find that the prosecution witnesses, especially PW2 was truthful and reliable person. On the other hand, I find that both accused persons as mere liars and hence unreliable Persons.

PW2 gave his evidence in a Calm confident and straight fonruard manner. He carefully described in detail what had transpired on that fateful night. On the other hand the accused were jumpy and unsteady while making their respective unsworn

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statements, wherein they denied the offence. ):<sup>t</sup>

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O PW2 on his part, withstood rigorous cross-examination at the hands of the learned counsel for the accused and remained consistent. He told couft that in the material day, while about to go home, he went to the store. He held his safe containing cash from sales made a couple of days earlier. He also had unsold aiftime cards wotth 2.4 million in the same safe. As he opened the door of his store, he heard someone say hullo to him. He turned to look and saw the accused advance towards him while holding a cup. That then, A1, poured a substance at him, whlch had a burning sensation, He then dropped the safe. He cried out. Then he saw A1 bend and pick up the safe, then he also saw A2 came from around the corner and assist A1 take the safe.

It must be noted that, it was at night. Hence I warned the assessors as I warn myself of the danger of possibility of mistaken identity. In such circumstances, the court has to consider the following points.

- i) Whether the witness knew the accused before the offence. - ii) Whether there was light at the scene.

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- iii) The distance between the witness and the accused at the scene. - iv) The time taken by the witness while observing what was going on at the scene, (ABDULLAH NABULERE & ANOTHER VS. UGANDA UCA CR. APPL9ITA).

According to PW2, he knew both accused persons before the case. That A1 comes from the area where his business of restaurant and pub are situated and that the accused used to frequent these facilities to watch TV and play pool table. That for

A2, he used to employ him sometime back.

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As for the source of light at the scene, PW2 told court that there was sufficient light from the electrical bulbs around and light from the Coca-Cola and Pepsicola refrigerators around. He also said that there was moonlight outside at the time. This was confirmed by PW4. As for the distance from where PW2 identified the accused person, he said A1 was about 1 1/2 metres away, who was followed closely by A2.

As the time taken, PW2 said it was about 10 minutes. Perhaps it might have taken a short time, but PW2 insisted that, he clearly saw A1, who had a cap on his head, but his forehead and face he clearly saw and recognized as that of A1. He even described his clothes he was putting on as blackish which is confirmed by PW4, who said that the accused were putting grayish or blackish clothes. PW4, was about 40 metres away where he saw both A1 and A2 running from the direction of PW2's premises. He also said there was light from electricity and moonlight. He had known both A1 and A2 before. A1 as his neighbour and for A2, as co-workers at PW2's farm earlier before the incident.

Putting everything into consideration, I am satisfied that, the condition prevailing at the scene of the crime, at the time of the robbery were conducive for PW2 to correctly identify his assailants. I am aware that, PW2 is the sole identifying witness at the scene. I warned the Assessors, as I warn myself of the need to be cautious as it was at night and usually the court has to look for corroboration. But if the danger of mistaken identity is recovered, then the court can convene yet such warning (see RORIA VS. REPUBLIC [1967] EA 583).

In the instant case, apart from the conditions for a correct identification being conducive for PW2 hence there was no possibility of mistaken identity of who had attacked and robbed him, his evidence can be corroborated by that of PW4 who saw both of the accused persons flee from the scene soon after the attack and

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robbing a PW2. PW4, had known both accused persons before this incident. He also impressed me generally as a truthful witness and I accept his evidence that he had seen both the accused persons. Running away with a metallic box, which he used to see at PW2 pub and where PW2 used to keep money and airtime. This is the same box which PW2 said was stolen from him after acid was thrown at him. Another piece of evidence which corroborates PW2's evidence, is the behaviour of A1, soon after his arrest. PW6, the police officer who was in charge of investigations, told court that, after his arrest on this charge, A1 was among the suspects who broke out of police cells and escaped. He was never arrested till June 2010, by PW7, while deep in Luwero, at a place called Migadde. This of course is not behaviour of an innocent mane (see the case of **REMIGIOUS KIWANUKA VS. UGANDA S. C. U** CR. APPL. NO. 4/95).

The Assessors have advised me to find both accused persons guilty as the prosecution had put them at the scene, and hence had participated in the crime. From the evidence on record, I agree with their opinion. In the premises therefore, I find that, the accused robbed the victim on the material day, and I dismiss their respective defence and denials are mere fabrications.

I accordingly find that A1 and A2, guilty of Aggravated Robbery contrary to section 285 and 286 (2) of the Penal Code Act and I convict A1 and A2 accordingly.

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AKIIKI – KIIZA **JUDGE** 18/05/2011.