[1950] EACA 402

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal, and SIR OWEN CORRIE, J. (Kenya)

## (1) AMIR BEGUM and (2) ANARA BEGUM, Appellants (Original Accused Nos. 1 and 2)

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## **REGINAM, Respondent**

## Criminal Appeal No. 302 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Windham, J.)

Manslaughter—Death from natural causes not excluded by medical evidence— Kenya Penal Code, sections 202 (a) and 246—Kenya Criminal Procedure Code, section $179(1)$ .

The accused were charged with the murder of a girl by beating her and were convicted of manslaughter. There was ample evidence of the beatings but no specific examination of the body was made to exclude the possibility that she had died from any of three possible diseases. The beatings inflicted on her had exceeded the bounds of lawful chastisement and had caused her actual bodily harm.

Held (30-10-55),—There was a reasonable doubt that the bodily harm inflicted had caused death and a reasonable possibility that her death was due to natural causes.

Appeal allowed. Conviction for assault occasioning actual bodily harm substituted.

Cases referred to: R. v. Muhoja, (1942) 9 E. A. C. A. 70; R. v. Home, (1944) 11 E. A. C. A. 107; R. v. Ndecho, (1951) 18 E. A. C. A. 171.

Sirley for appellants.

Twelvetree for respondent.

JUDGMENT (prepared by Corrie, J.).—This is an appeal against a judgment, delivered on 23rd June, 1955, of the Supreme Court of Kenya.

The two appellants were indicted for murder, the facts alleged against them being that with malice aforethought they frequently and severely beat the deceased, Nassim d/o Fazal Mohamed, when she was in an extremely weak and emaciated condition, due to lack of nutriment, and thereby inflicted harm which caused her death. The appellants were acquitted of murder but convicted of manslaughter. The appellant Amir Begum was sentenced to a term of ten years and the appellant Anara Begum to a term of seven years' simple imprisonment respectively. The appeal is against both conviction and sentence.

Nassim $d/o$ Fazal Mohamed was a girl of about 14 years of age; the first appellant was her stepmother and the second appellant her aunt. Nassim died on Tuesday, 22nd February, 1955. She had received medical attention in January, 1955, from Dr. Abdul Hussein Ismail. After her death Dr. Ismail viewed her body and gave a certificate to the effect that the primary cause of death was cardiac failure and the secondary cause dehydration due to gastro-enteritis. When giving evidence, Dr. Imail adhered to this view, but added "Having regard to the state of the body, it is possible that the girl was starved to death; that is to say, that the cause of death was starvation and not gastro-enteritis".

The girl was buried on the day of her death. On the following day her body was exhumed in the presence of the police and of Dr. Rogoff; and on the next day, 24th February, Dr. Rogoff performed a post-mortem examination. Neither Dr. Ismail nor any other medical practitioner was present at the post-mortem.

Giving evidence, Dr. Rogoff gave as his opinion that the cause of death 'was the beating of the deceased when she was in a starved and extremely weak condition.

There was a considerable body of evidence to the effect that the two appellants had beaten the girl severely; and on exhumation Dr. Rogoff found numerous marks on the face and body which, in his view, were caused ante-mortem.

The three assessors were all of opinion that the two appellants were guilty of murder, but the learned trial Judge, whilst accepting the opinion of Dr. Rogoff as to the cause of death, was doubtful whether malice aforethought in the terms of section 202 (a) of the Penal Code had been established, but found that all the other elements of the charge were proved. He therefore acquitted the appellants of murder but convicted them both of manslaughter: section 179(1) of the Criminal Procedure Code.

The memorandum of appeal contains 12 grounds of appeal: the fifth ground is as follows: --

"That the learned Judge misconstrued the evidence of Dr. Rogoff to the effect that diabetes or gastro-intestinal allergy were improbable causes of death."

Mr. Sirley, who argued the appeal on behalf of both appellants, somewhat expanded the scope of this ground of appeal and made it his main ground that Dr. Rogoff, in forming his opinion that the girl's death was due to her having been beaten when she was in a starved and extremely weak condition, failed to take all the necessary steps to exclude the possibility that her death may, in fact, have been due to natural causes.

This question was present in the mind of the trial Judge who said in his judgment: "Now under cross-examination Dr. Rogoff admitted that there was more than one disease from which, so far as his examination of the body was concerned, the deceased girl might possibly have died, and among these possibilities may be mentioned anorexia nervosa, disease of the middle ear, and diabetes. She was not known to have been suffering from middle ear disease or diabetes, but the doctor did not examine the body so as to exclude the possibility of her having died from such causes. Dr. Rogoff's view, however, even upon cross-examination, was that while the deceased's death from any of the alternative causes put to him was not impossible, it was improbable. His opinion that the cause of death was the beating of the child, who was already in a starved condition, was based, in addition to his finding no trace of any other cause, upon the body being, in fact, in an extremely emaciated condition, coupled with his discovery on numerous parts of the face and body, of marks which, in his view, were ante-mortem bruises".

After observing that the Court was not bound to rely exclusively on the medical testimony and observing that there was "overwhelming testimony from those who lived in the same courtyard as the appellants and the deceased, and from neighbours, that the two appellants had been beating her almost daily and that in particular, they had done so during the two days before her death", the<br>trial Judge said "this leads me to accept, beyond any reasonable doubt, Dr. Rogoff's conclusion that the cause of death was the beating of the child who was in a starved and extremely weak condition", and the trial Judge went on to give reasons for rejecting the opinion of Dr. Ismail.

In arguing before this Court that Dr. Rogoff's evidence did not form a sufficient basis for the Court's finding. Mr. Sirley has drawn our attention to the following passages in the doctor's evidence. "I consider that the symptoms in the deceased were not consistent with anorexia nervosa. In the present case, the degree of emaciation was particularly prominent in the kidneys and skin. In anorexia nervosa there would be an inter-current infection of either the lungs or the bowel, which would cause the death. I found no such infection in this deceased. Death from anorexia nervosa, from starvation pure and simple alone, is possible, but I would expect inter-current infection. So the death of the deceased from anorexia nervosa is unlikely, though not impossible".

After reading certain passages from *The Lancet* which were put to him, the witness said: "Having read this passage, I see from it that the percentage of deaths from anorexia nervosa, without other symptoms, amounts to about 10 per cent. So I say that her death from anorexia nervosa is possible, but not probable. I agree that it was my duty at the post-mortem to exclude anorexia nervosa. I did not examine the deceased's middle ear. In some cases of starvation, death may be caused by infection of the middle ear. I do not consider that, in the circumstances, it was necessary to examine the middle ear, as I found no discharge from the ear. Maybe it would have been more proper to do so".

Later in his cross-examination, Dr. Rogoff said: "If I had heard that the deceased had been getting two meals a day. I would have looked for another cause of death. I did not exclude the possibility of diabetes as a cause of death. Sometimes there are no signs of diabetes after death, so it is possible that death could have been from diabetes. I did not test for diabetes. Diabetes does not cause diarrhoea. I agree that one should try as far as possible, to exclude all possible natural causes. I did all that was within my power to establish the cause of death. A discharge from the outer ear is the usual accompaniment of a disease of the middle ear, but not inevitable. In so far as I did not examine for middle ear. I agree that the post-mortem could have been more thorough, but not otherwise"

In re-examination Dr. Rogoff said "I still say that death was due to the beating of a starved and weak child. I would not have felt so certain about this if people had not already told me that the child had been beaten and starved, but my post-mortem disclosed nothing inconsistent with the major part of what people had told me".

With these quotations from Dr. Rogoff's evidence before us, we have come to the conclusion that there is substance in Mr. Sirley's contention that Dr. Rogoff, being aware of evidence that the deceased girl had been beaten and starved and finding post-mortem symptoms consistent with death from beating following upon starvation, did not take sufficient care to exclude the possibility that death may have been due to natural causes. It follows that the conviction of the two appellants, resting as it does so largely upon Dr. Rogoff's evidence, must be set aside and the two appellants must be acquitted of manslaughter.

There is, however, a considerable body of evidence, which was accepted by the Court below, that the deceased girl was beaten frequently and severely by the two appellants, to an extent which exceeded the bounds of lawful chastisement; and there is also evidence that there was no reason to chastise the girl. The beating therefore, was unlawful. From the evidence as to the bruises found upon the girl's face and body at the post-mortem examination, it is clear that the beating caused her actual bodily harm. Unlawful beating and actual harm caused thereby, combined with other prticulars, would constitute the offence of murder with which the appellants were charged, and also the offence of manslaughter

of which they were convicted. The appellants were guilty of assault occasioning actual bodily harm and in our view may be convicted of that offence although they were not charged with it. See Rex v. Muhoja. (1942) 9 E. A. C. A. 70 at p. 71: R. v. Home. (1944) 11 E. A. C. A. 107 and R. v. Ndecho. (1951) 18 E. A. C. A. 171. In the instant case the substitution of the minor and cognate offence falls within sub-section (1) of section 179. The appellants were charged in effect with intentionally causing the death of the child by a series of beatings which in fact occasioned actual bodily harm; the Supreme Court found that malice aforethough had not been proved: we now think that it had not been proved beyond reasonable doubt that the bodily harm occasioned was the cause of death. But applying the test laid down in *Ndecho's case*, namely whether the accused can reasonably be said to have had a fair opportunity of making a defence to the charge now substituted, the answer must in the present case be in the affirmative. In truth although the Crown evidence on this aspect of the case was not accepted by the defence, it was never contradicted.

Under section 246 of the Penal Code "Any person who commits an assault occasioning actual bodily harm, is guilty of a misdemeanour and is liable to imprisonment for five years, with or without corporal punishment". We find both the appellants guilty under this section. The appellant Amir Begum will serve a term of five years' simple imprisonment. The appellant Anara Begum will serve a term of four years' simple imprisonment.