Wakilii

Uganda v Odipio and 2 Others (Criminal Session Case 153 of 1993)

High Court · [1993] UGHC 67 · 1993 Acquittal Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for aggravated robbery in the High Court
Decision
Both accused acquitted and ordered released forthwith unless held on some other lawful ground

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that while a robbery had undoubtedly been committed and the gun recovered was capable of discharging bullets and therefore a deadly weapon, there was no admissible evidence linking the accused to the robbery. The accused persons' confessional statements were inadmissible because they were recorded in breach of the Evidence (Statements to Police Officers) Rules. The circumstantial evidence based on recent possession failed because there was no proper identification linking the recovered mattresses to the stolen property. Both accused were acquitted and ordered released.

Outcome

Both accused acquitted and ordered released forthwith unless held on some other lawful ground

Facts

On 15 July 1992, a robbery occurred at Mvara village, Arua District, at the home of Dick Aliga. Three men, two dressed in military uniform and one armed with a gun, knocked at the victim's bedroom window. When the door was opened, the victim was held at gunpoint, blindfolded, had his hands tied behind his back, and was ordered to lie down outside. One robber guarded him while the other two entered the house and stole several household properties including four six-inch foam mattresses. Moses Odipio, Hassan Lekua, and Apollo James Asea were jointly indicted for aggravated robbery. At the commencement of the trial, the prosecution struck out Moses Odipio from the indictment as he had escaped custody. The prosecution proceeded against Lekua and Asea only. The gun allegedly used in the robbery was later recovered through police investigations, along with magazines containing live ammunition. Two mattresses were recovered from Celina Acibo, who testified that Lekua had sold them to her in July 1992. Lekua admitted selling the mattresses as a commission agent for Odipio Moses.

Issues

  1. Whether the prosecution proved the commission of aggravated robbery beyond reasonable doubt.
  2. Whether the gun used in the robbery was a deadly weapon within the meaning of s.273(2) of the Penal Code.
  3. Whether the accused persons' charge and cautioned statements were admissible in evidence.
  4. Whether the doctrine of recent possession applied to link the accused to the stolen property.
  5. Whether the circumstantial evidence was sufficient to secure a conviction.

Orders

  • Both accuseds acquitted.
  • Both accuseds ordered to be released forthwith unless held on some other lawful ground.

Rules and key headnotes

Aggravated Robbery — Essential Ingredients of Offence
To secure a conviction for aggravated robbery under sections 272 and 273(2) of the Penal Code, the prosecution must prove: (1) that there was theft; (2) that there was use of or threat to use a deadly weapon in the course of the commission of the theft; and (3) that the accused committed the above.
Aggravated Robbery — Deadly Weapon — Proof of Capability to Discharge Bullets
A gun becomes a deadly weapon under section 273(2) of the Penal Code only when it is shown to be capable of discharging bullets or that it was fired in the course of the commission of the offence. Whether a gun can discharge bullets is a question of fact, provable by evidence that it was fired or by evidence of a ballistic expert. Credible and cogent evidence from a police officer experienced in the working mechanism of guns, who has tested the gun both mechanically and practically, may also suffice.
Confessions — Charge and Cautioned Statements — Admissibility — Evidence (Statements to Police Officers) Rules
A charge and cautioned statement made to a police officer is inadmissible if recorded in breach of the Evidence (Statements to Police Officers) Rules. Rule 6 prohibits cross-examination of a person making a statement. Rule 7 requires the statement to be recorded in the language used by the person and as nearly as possible in the words he used. Where the recording officer elicits a statement by asking questions, or records a statement first in one language and then reduces it to another language, the statement contravenes the Rules and is inadmissible.
Circumstantial Evidence — Standard of Proof — Incompatibility with Innocence
To base a conviction solely on circumstantial evidence, the inculpatory facts produced by the evidence must be incompatible with the innocence of the accused and not explicable upon any other reasonable hypothesis than that of the accused's guilt.
Recent Possession — Identification of Stolen Property — Requirement of Prior Knowledge
Evidence of recent possession of stolen goods can support an inference of guilt only if the property in possession is properly identified as the stolen property. A witness purporting to identify recovered property as stolen property must be shown to have prior knowledge of the property in question. One cannot identify things which one does not know. There must be evidence establishing that the identifying witness knew the property before it was stolen.
Identification of Exhibits — Chain of Custody — Linking Evidence
Where property is recovered at one location and later produced as an exhibit in court, there must be linking evidence connecting the exhibit produced in court with the property initially recovered. Without evidence that the exhibit is the same item previously identified or recovered, it is not proper to treat the exhibit as the recovered property.

Legislation cited (6)

  • Penal Code Act s.272
  • Penal Code Act s.273(2)
  • Trial on Indictment Decree s.48(2)
  • Trial on Indictment Decree s.64
  • Evidence (Statements to Police Officers) Rules SI No.143-1 rule 6
  • Evidence (Statements to Police Officers) Rules SI No.143-1 rule 7

Cases cited (5)

  • Wasajja v Uganda (1975) EA 18
  • Robert Sabiti v Uganda (Criminal Appeal No. 4 of 1989)
  • A. Odwanja V.R. Cr. Appeal No. 398/57 (reported in Cases on Civil & Evidence page 56)
  • R. v. Petero Apudo Cr. Session case No. B.223/62 (reported in Cases on Civil Procedure and Evidence page 58)
  • Uganda v GW Kiggundu (1978) HCB 281

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Uganda v Odipio and 2 Others (Criminal Session Case 153 of 1993) [1993] UGHC 67 (26 November 1993)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.