THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION NO. 201 OF 2016

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION

VERSUS

A1. SAAZI PATRICK

A2. GALIWANGO FRANCIS::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED

BEFORE: HON. MR. JUSTICE EMMANUEL BAGUMA

JUDGEMENT

1. Saazi Patrick alias Patu and Galiwango Francis were charged with the offences on three counts; on count one they were charged with Aggravated Robbery C/S to 285 and 286(2) of the Penal Code Act,
2. On count two, Saazi Patrick alias Patu was charged with Rape contrary to Section 123 and 124 of the Penal Code Act and
3. On Count Three, Galiwango Francis was charged with Rape contrary to Section 123 and 124 of the Penal Code Act.
4. On Count one state alleged that Saazi Pertrick alias Patu and Galiwango Francis on the 7^th day of June 2016. At Njeru Village in the Mpigi District robbed Birungi Kevine of cash Ugx 60,000/= and at the time of the said robbery where in possession of a deadly weapon to wit a panga which they threatened to use on the said Birungi Kevine.
5. On count two the state alleged that Saazi Patrick alias Patu on the 7^th day of June 2016, at Njeru village in the Mpigi District had unlawful sexual intercourse with Birungi Kevine without her consent
6. On Count three the state alleged that Galiwango Francis on the 7^th day of June 2016, at Njeru village in the Mpigi District had unlawful sexual intercourse with Nanyunja Margret without her consent.
7. When arraigned before court, all the accused persons denied the charges. It then became a duty of the prosecution to prove all the ingredients of the offences beyond reasonable and not only that the offence was committed but that it was committed by the accused persons.
8. The law is that all the accused person persons are presumed innocent until otherwise proven or until he or she pleads guilty. See Article 28 (3) of the Uganda 1995 Constitution, R V Muzabia BIM Muloni [1941] 8 EACA 85 and Woolmington V D P P [1935] AC 462.
9. On count one the prosecution is required to prove the following ingredients;

1. That there was theft of property
2. That there was violence
3. That a deadly weapon was used or threatened to be used
4. That the accused participated in committing the crime

1. To prove the offence of Aggravated Robbery, the prosecution called three witnesses and of relevant in the preliminary hearing prosecution tendered in court PF24 in respect of both the accused persons. The defence called in court five defence witnesses who gave sworn evidence.
2. RESOLUTION

That there was theft of property

PW1 Birungi Kevine told court that on the 7^th/6/2016 while at home in the night sleeping, she had a bang on her door, immediately she saw two men with big touches, they flashed her and they had a panga. PW1 told court that she was in the bedroom with Nanjunja Margret and Denis Kafero. The two men entered in the bedroom and they said that they were going to cut her and kill her.

1. PW1 told court that the two men asked for money from her and she gave them 60,000/= which was in the tin and it was received by A1.
2. PW2 Nanyunja Margret told court that on the 7/6/2016 at 2:00pm while at home in the bedroom, they were attacked by the accused persons. After the attack, the accused persons told them to keep quiet and they demanded for money from her mother. She said that her mother gave the accused persons 60,000/=
3. PW3 NO.35873 D/CPL Abubaker Marijan also told court that during investigation, he recovered a bottle/ tin where the 60,000/= was kept.
4. Considering the evidence given above by the prosecution, there is proof beyond reasonable doubt that there was theft of 60,000/=.

That there was violence

1. PW1 told court that on the 7/6/2016 at 2:00pm while sleeping at home, she had a bang on the door, immediately she saw two men with big touches, they flashed her and they had a panga. They entered in the bedroom and they said that they were going to cut her and kill her. A1 and A2 asked for money from PW1 which she gave them and after giving them the money, one of the accused person called PW’s daughter  Nanyunja Margret and took her out of the room
2. PW2 told court that while outside, A2 beat her in the eyes. He had a panga and threatened to cut her.
3. PW3 told court that during his investigations, he visited the scene of crime and recovered the panga which was used in the robbery
4. Therefore, the fact that whoever attacked the victims banged and entered their house with the panga, threatened to cut and kill them, is proof that there was violence.

That a deadly weapon was used or threatened to be used

1. PW1 told court that on the 7/6/2016 at 2:00am while sleeping, she heard a bang and she saw two people entering into her bedroom with the panga. They threatened to cut her and kill her. They then asked for money and she gave them. PW1’s evidence was supported by PW2’s evidence.
2. PW3 also told court that during his investigation, he found a panga at the scene of crime.
3. Therefore, the prosecution proved beyond reasonable doubt that a panga was used to threaten the victims.

That the accused participated in committing the crime

1. PW1 told court that after she had given money to the accused persons, one of the accused persons asked PW1’s daughter Nanyunja to go out with him and herself she remained in the house with A1. She told court that she managed to identify A1 because he had a torch and he could see him properly. She said that A1 had a black jacket and yellow cap and a jean trouser.
2. PW2 told court that after PW1 had given the accused persons money, A2 told her to go out with him. The accused had a panga, beat her in the eyes and threatened to cut her.
3. PW2 also in her examination in chief she told court that at first instance, she was able to identify A1 because she knew him because he was there neighbor before.
4. In cross-examination, she told court that A2 had a torch and she was able to recognize A2 by his face, dress and height. She said that A2 was putting on a checked shirt with red and black and a jean blue or black trouser and that he did not have some teeth in the upper part.
5. Considering the evidence given above, it is noted that the offence was committed at 2:00pm in the night. Therefore, the issue left for this court to determine is whether the identification was proper or not. In the case of Abdala Nabulere&Another Vs Uganda Cr. App.No. 9 of I978 (1979),It was stated that; the starting point in cases involving identification is that a court ought to satisfy itself from the evidenceon record on whether the conditions for identification were proper or not and also to warn itself of the possibility of mistaken identity. The court is required toevaluate the evidence cautiously so as not convict or uphold a conviction, unless it is satisfied that mistaken identity is ruled out.
6. The court put in place guidelines to be followed in order to avoid mistaken identity and there provided in the manner below;

• Familiarity of the accused by the witness at the time of the offence
• Conditions of lighting.
• Proximity of the accused to the witness at the scene of the crime.
• The length of time the accused was under the observation of the witness.

1. In the view of the above, it is noted that the offence was committed in the night. PW1 told court that while she was sleeping, she had a bang and two men entered into her house. They had a panga and they threatened to cut her and kill her. They asked for money from her. She gave them the money and A2 told her daughter Nanjunja Margret to go out with him. She said that she remained in the house with A1 and she managed to identify him using the light from the torch which the accused had.
2. PW2 also told court that at first sight, she was able to identify A1 because he was there neighbor before.
3. PW2 further told court that he was able to identify A2 using the light from the torch which he had.
4. On the other hand, DW1 Saazi Patrick told court that he knew PW2 because he used to see her in Kisesa village. He said that on 7/6/2016 between 1:00pm and 2:00pm he was at police of Kituntu because he had been arrested on allegations of being a thief. He had been arrested by the residents of Kitachusa village. He told court that the complainants were his customers and neighbors and they had no grudge.
5. DW2 Galiwango Francis told court that it is not true he robbed the victims. He said that he did not know all the victim who testified. He said that on 7^th/6/2016, he was at Kituntu police where he had been arrested and taken to Kituntu police. He said on the day of his arrest he was found at home with his wife and his grandmother at midnight.
6. Therefore, the fact that the accused persons entered into the victim’s house with the torch, asked for the money from PW1, and the fact that A1 remained in the house with PW1 and A2 went out with PW2 is proof that, the time A1 and A2 spent with the victims was long enough to enable them identify the accused persons.
7. It is also the evidence of PW2 that she was able to identify the accused persons at first sight because he was their neighbor before.
8. I therefore fault the defence evidence and find that the prosecution proved beyond reasonable doubt all the ingredients of the offence of aggravated robbery.
9. I now turn to count two and count three. To prove the offence of rape as per Section 123 the Penal Code Act, the prosecution must prove the following ingredients;

• Unlawful sexual intercourse
• Of a woman of 18 and above 18 years
• Without her consent
• By the accused

1. In a bid to prove the offence of rape, the prosecution called a total of 3 witnesses and of relevance tendered in court PF3A in respect of both the victims and PF24 in respect of all the accused persons. The defence called a total of five witnesses who gave sworn evidence in court.
2.  

Unlawful sexual intercourse

1. PW1 told court that on 7/6/2016 at 2:00pm, while at home sleeping, she heard a bang on her door and immediately she saw two men with big torches. They flashed her and they had a panga. She said that she was in the bedroom with Nanyunja Margret and Denis Kafero. The two men threatened to cut her and kill her. They asked for the money, PW1 got 60,000/= from the tin. She said that after giving them the money, one of the men called her daughter Nanyunja and took her out. PW1 remained in the bed room with A1, he removed her skirt and forced her to have sex without her consent using force. She said that her skirt got torn. PW1 told court that A1 warned her never to say anything.
2. She said that her daughter who had been taken out was making noise pleading with the man not to force her into sex.
3. PW2 told court that the man took her outside and when they reached outside, he forced her to have sex with him. She said that the man forced her to lie down on the mat. She had a nicker and the skirt on but the man removed them.
4. PW1’s evidence was corroborated by the PF3A dated 9/6/2016 made at Buwama Health Centre by Babuwa Jafat a medical officer found that the victim’s hymen was ruptured and she was 40 years.
5. PW2’s evidence was also supported by PF3A made on 9/6/2016 at Buwama Health Centre and her hymen was found to be ruptured.
6. Considering the evidence adduced above, the prosecution proved beyond reasonable doubt that there was unlawful sexual intercourse.

Of a woman of 18 and above 18 years

1. The evidence of PW1 in corroboration with PF3A in PE.1 indicated that PW1 was 40 years at time of commission of the offence and the evidence of PW2 in corroboration with PF3A in PE.24 also indicated that PW2 was 20 years at time of commission of the offence. Thus there is proof that the victims were above 18 years.

Without her consent

1. PW1 told court that while she was sleeping, she had a bang outside and immediately, she saw two men entering into her house. They had a big torch with the panga. They asked her for money and she gave them 60,000/=. After she had given them the money, one of the men asked to go outside with PW1’s daughter PW2. She said that she remained in the house with the other man who removed her skirt and the nicker and forced her to have sex with him without her consent.
2. PW2 told court that while outside, the man removed her nicker and the skirt and forcefully had sex with her without her consent.
3. PE.1 and PE.2 indicate that both the victims had rupture in their hymens
4. Thus, there is proof that the victims were forced into having sex without their consent.

By the accused

1. PW1 told court that when the accused persons banged and entered into her house, they had a big torch. She said that when they entered and asked for money from her. After she had given them the money, A2 asked to go outside with PW2 Nanyunja Margret. PW1 said that she remained in the house with A1 who forced her to have sex with him and she was able to identify him using the torch which he had.
2. PW2 also told court that when A2 took her outside, he forced her to have sex with him. She said that A2 had a torch which helped her to identify him.
3. It is however noted that the offence was committed in the night. Therefore, there is need to prove that the identification was proper.
4. The supreme Court in the case ofBugere Moses Vs. Uganda Supreme Court Criminal Appeal No.1 of 1997 put in place factors for court to consider in order to rule out the possibility of improper identification;

• Familiarity of the accused by the witness
• Availability of light.
• The distance between the accused and the victim.
• The length of time the accused was under the observation of the witness.

1. In the instant case, it is noted that the accused persons entered into the house of the victims and asked for money. A2 then took out PW2 and A1 remained in the house with PW1.
2. It is also noted by this court that cases involving lawful sexual intercourse, it is usually a strangle between the two parties. Meaning there is always enough time to enable the victim to identify his or her assailant properly since the distance between each of them is usually very close.
3. Both the victims told court that their assailants used torches which assisted them to be able to identify them.
4. It is also the evidence of PW2 that at first sight she recognized A1 because he had been their neighbor before.
5. Therefore, this court is satisfied that PW1 and PW2 properly identified A1 and A2 as their assailants.
6. Thus, the prosecution has proved all the ingredients of the offence of rape beyond reasonable doubt.
7. As above discussed in count one, all the accused persons denied having participated in the commission of the offence and told court that on the day in question, they had already been arrested on allegations of theft.
8. Therefore, considering the evidence as above given, I depart from the Gentleman and Lady Assessors opinion and convict the accused persons as charged.
9.  

Emmanuel Baguma

19/10/2018- 10:00 a.m.

Two accused persons in Court.

Attendance:

Mr. Bwiso Charles Sen. State Attorney for prosecution

Mr.Kumbuga Richard    for accused on stat brief.

M/s Mulinde  Victoria  court clerk.

Mr. Tabula Edward        

Ms  Najjemba Regina     Assessors.

Prosecutor:             For judgment.

Defence:            I am ready to  receive the judgment

Court:              Judgment is ready and read in open court.

Emmanuel Baguma

Judge

19/10/2018

Prosecutor:     Aggravating  factors.

The two accused persons have no previous read.  However, considering the circumstances under which the offences were committed especially against woman.  I pray that the two accused persons who are charged with robbery and rape.  I pray for 15 years on aggravated robbery then rape I pray for 20 years.  I so pray.

Defence/Mitigating factors.

The accused (A1 and A2) are first offenders and no criminal record, the accused are remorseful and ready to reform and they are very sorry for the offence.  A1 is 22 years now, at the time of the offence he was 20 years. He was 20 years he was   misguided by his wife.

A2 he is 30 years.  He was 28 years he was misguided by his age.  They will reform and be useful to society and families.

A2 has a family a wife and children the accused A2 is a bread winner.

I pray that time spent on remand i.e since 22/6/2016  , the accused has spent  two years, three months and 28 days.

I pray for 10 years on robbery and rape also 10 years.  I pray for consecutive which is 20 years and deduct period spent on remand.

Court:              Sentence and the reasons for the sentence:

I have  considered the submissions on record  by both prosecution and defence.  I have also considered the nature of the  offences the Aggravated robbery  and rape  in count II and III.  I have considered the time the accused persons have been on remand  i.e since  22/6/2016  which is two years, three months and 28 years.  I will sentence each accused person as  follows:

A1:  is sentenced to 12 years,  three months and 28  days on count  1 (Aggravated robbery).

I will subtract the  period spent on remand i.e two years , three months and 28  days.

A1 is  sentenced to serve a period of 10  years   on count  1  (Aggravated. Robbery) .

A2  is sentenced to 12 years, three months and 28   days on  Count I  (Aggravated Robbery).

I will deduct  the period spent on remand of two years , three months and 28 days.

A2 is sentenced to  serve a period  of 10 years  on count I  (Aggravated Robbery).  Also A2 is sentenced to serve a period of 10 years on count 3 (Rape)

The sentence  in Count I and  Count 3 to run consecutively.

Emmanuel Baguma

Judge

19/10/2018

Court:      Right of appeal, within 14 days   communicated to the accused persons.

Emmanuel Baguma

Judge

19/10/2018