The accused person Polly Semanda (Al) is indicted for robbery c/ss 272 and 273(2) of the Penal Code Act. He was originally indicted with another man called Sula Sendagire (A2) who was acquitted under section 71(1) of the T.I.D as no case had been made out for him to answer after the close of the case for the prosecution. This judgment is in respect of Semanda alone. The indictment states that on 1-5-94 the accused robbed one Jalia Bawaye of 1,800,000/= and that at the material time threat was made to use a deadly weapon in form of a knife. The accused pleaded not guilty to the indictment.
Prosecution called a total of 6 witnesses of whom only 2 were relevant in respect of this particular accused. The first wittiness was Seruwagi James (PW1) whose evidence was to the effect that on the evening of 1-5-94 he was sitting outside the shop of Jalia Bawaye and 2 men came there, they entered into the shop but after about a minute or two he heard Jalia raising an alarm and he saw the two men coming out of the shop. He chased one of them up to the taxi park where he caught him and brought him back to the shop. When he asked why he had run he explained that he run because he had seen somebody drawing out a gun. When the accused’s bag was opened there was a knife and a cap. Jalia remarked that that was the man who had wanted to stab her with a knife. The other evidence relied upon by the prosecution was from Muliso Shafi (PW4) whose evidence is that on that evening he was in the shop with his mother (Jalia) and 4 people came in the shop, two remained on each side of the door and two went to the counter. Among the two who went to the counter was the accused who asked for a bag of sugar. When his mother was going outside to get somebody who could assist in taking out the sugar the accused grabbed her by the head and a scuffle ensued. This particular witness joined the struggle and kicked the accused who run out. In his testimony he told the court that during the scuffle one of the men grabbed money from behind the counter and run out with the money, he did not recognise that person and according to him the accused had no knife. When the accused managed to disentangle himself he (accused) run out.
On his part the accused person who testified on oath told the court that on that particular day (1-5-94) he went to the shop with a view of buying a bag of sugar which he intended to use for his marriage introduction on 20-5-94. He paid for the sugar at 48,000/= but as the shop keeper was going to bring somebody who could take out the bag to a place where he could get transport 2 men entered the shop and one of them started assaulting him, there was a scuffle and the shop keeper started shouting for help. He then managed to escape and went out side; while he was outside some of the people who had come to answer the alarm asked him what had happened and he explained to them how he had been attacked in the shop but they did not believe his story and they alleged that he may be one of the thieves. He was mishandled despite the shop keeper’s pleading for him that he was an innocent customer. He was eventually taken to police.
Judging from the above account of what happened it seems there are two questions which require the determination of this court. The first question is whether or not the offence of aggravated robbery was committed to the prejudice of Jalia Bawaye on 1-5-94. The second question is whether or not the accused was a party to that robbery. I will deal with the 2 questions in the 2 questions in which they are placed above.
The offence of aggravated robbery is committed when there has been theft and violence accompanied by actual use of a threat to use a deadly weapon. Concerning the first element of this offence there is the evidence of PW4 which shows that certain amount of money was in fact removed from his mother’s shop without her consent. I believe him on that point and I hold that some money was actually stolen although the exact amount is unknown. (Among the witnesses who testified in court none was in a position to tell how much money was actually taken). As for violence both PW4 and the accused do agree that there a scuffle at that time. In my opinion that scuffle amounted to violence envisaged in section 272 of the Penal Code Act. Regarding the issue of deadly weapon being used, the indictment alleges that one of the robbers was armed with a knife but the evidence on record which is rather conflicting does not clearly show as to whether or not any deadly weapon was involved. According to the evidence of Seruwagi (PW1) he did not see any weapon until he opened the bag of the accused when he saw the knife after he had allegedly caught the accused. He however says when he brought the accused to the shop the shop keeper Jalia Bawaye who unfortunately died of meningitis before she testified in the case, said: this is the man who wanted to stab me with a knife.

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