THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT MENGO
(CORAM: TSEKOOKO, KATUREEBE, KITUMBA, TUMWESIGYE, KISAKYE, JJ.S.C.)
CRIMINAL APPEAL NO.21 OF 2005
BETWEEN
1. MUHWEZI ALEX ::::::::::::::::::::::::::::: APPELLANTS
2. BEINOMUGISHA HASSAN
AND
UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
Criminal procedure – second appeal – duty of second appellate court – number of witnesses required in law to prove a conviction –
Evidence – Identification – circumstances favouring correct identification – whether appellants were correctly identified using light from torches and where the incident lasted four hours – corroboration – what constitutes corroboration.
Held : appeal dismissed, conviction and sentence confirmed
[Appeal from the judgment of the Court of Appeal (Mukasa-Kikonyogo DCJ, Okello and Kavuma, JJ. A), dated 2nd August, 2005 in Criminal Appeal No.53 of 2002.
JUDGMENT OF THE COURT
This is a second appeal. It is against the decision of the Court of Appeal which upheld the convictions of the appellants for simple robbery and defilement contrary to sections 272, 273 (2) and 123(1) respectively of the Penal Code Act and sentences of imprisonment for 12 years.
For convenience we must correct at this stage the error introduced in this appeal by counsel for the appellants. Behayo Moses who was the first appellant in the Court of Appeal died before his appeal was heard by the Court of Appeal. Consequently during the hearing of the appeal, the court noted on the record that his appeal abated. As far as we are concerned the appearance of his name on our record of appeal is erroneous and therefore the same is struck out. We shall in this judgment refer to Muhwezi Alex as the 1st appellant (A1) and to Beinomugisha Hassan as the 2nd Appellant. (A2).
In the High Court the appellants, were indicted jointly with the deceased Behayo Moses (who was the first accused at the trial) in count 1 for aggravated robbery, contrary to sections 272 and 273 (2) Penal Code Act. Muhwezi Alex, the first appellant was alone indicted in count 11 for defilement, contrary to section 123(1) of the Penal Code Act. All the three were convicted of simple robbery on count 1 and each one was sentenced to twelve years imprisonment. The first appellant was convicted on count 11 as charged, sentenced to 12 years imprisonment and the sentence was to run concurrently with the one on count 1. The three were dissatisfied with the decision of the High Court and appealed to the Court of Appeal.
The prosecution evidence as accepted by the trial court and the Court of Appeal is as follows:
During the night of 10/6/1999 at Muzira village, Kakunyu Sub- County, Bushenyi District robbers broke into the house of John Ruhurira (PW2). They robbed him of cash 350,000/= together with his graduated tax tickets, and tied him up together with his son Natumanya Andrew, (PW5), ordered them to go under the bed. When the two were under the bed the robbers threatened to kill John Ruhurira (PW2) unless they were given 800,000/=. Florence Sanyu (PW4),
