[1952] EACA 259

#### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Cox. C. J. (Tanganyika)

# (1) TEKERALI s/o KORONGOZI, (2) MALUWO s/o KAYANI, (3) MICHAEL s/o KILIDINGI, (4) MUILULI s/o MREANJA, (5) KIMANGUTI s/o MOBEKI, Appellants

$\mathbf{v}$

## REGINA, Respondent

## Criminal Appeals Nos! 182-186 of 1952

(Appeal from the decision of H. M. High Court of Tanganyika—Abernethy, J.)

Practice-Criminal Procedure-Evidence of first complaint to person in authority.

Five appellants were convicted of murder by the High Court of Tanganyika. The injured man who later died of tetanus was taken to the police station at Arusha and from there to the hospital. No evidence was put in as to statement made by the deceased at Arusha police station. Such statements are admissible under section 157 Indian Evidence Act.

Held (24-11-52).-Evidence of first complaints to persons in authority are important as they often provide a good test by which the truth and accuracy of subsequent statements may be gauged and provide a safeguard against later embellishment or a made-up case.

Appeal allowed and all accused acquitted of murder but convicted of an offence against section 222 Tanganyika Penal Code and sentenced to 14 years imprisonment with hard labour.

#### Morgan for fourth appellant, remainder unrepresented.

Inniss, Solicitor General (Tanganyika) for Crown.

JUDGMENT.—In these five appeals, which we have consolidated, the five appellants were jointly charged with and convicted of murder by the High Court of Tanganyika. At the hearing of the appeal before us Mr. Morgan appeared for the fourth appellant (Criminal Appeal No. 185 of 1952); the other appellants were neither present nor represented. The points raised by each appeal are however substantially the same. Firstly it is submitted that the evidence of identification was not sufficiently trustworthy to establish beyond reasonable doubt that any of these appellants were of the party of men who broke into the shop of the deceased, who was a Somali shopkeeper, on the night of 19th December, 1951, at a place in Tanganyika called Ngare Mtoni. Secondly, it is claimed that the medical evidence led by the prosecution was so unsatisfactory that the learned trial Judge should not have accepted it as establishing conclusively that the cause of the deceased's death was an infection of tetanus entering through the wounds he received at his shop at the hands of the men who broke in there on the night of 19th December.

We will deal with the second point first, since, if it succeeds, the conviction of murder must be quashed in respect of each appellant. Apart from members of his own family the first person to see the deceased after the attack upon him in his shop was the witness Abdullah bin Talib (P. W. 5) and we cite the following passage from his evidence: -

"I am a trader living at Ngare Mtoni. I knew Mohamed Mahmud a Somali who is now dead. I remember one night his shop was attacked by raiders. I think it was about 20th December last. I saw him that night.

He came to my house at 12.30 a.m. He was seriously wounded. I think he was bleeding from his head and right hand but it may have been his left. He had a cut on his head. His hand was cut between his thumb and forefinger. He told me that thieves had entered into his house and attacked himself and family that they intended to kill him but he had escaped and came to me for assistance.

He mentioned no names."

Later this witness took the deceased and some other injured persons to the police station Arusha, from where they proceeded to hospital. Presumably the deceased and the other members of his family gave a statement on reaching the Arusha police station, but no evidence was put in as to its nature. We have had reason before to commend on the fact, particularly in cases tried in Tanganyika, that evidence of the first complaint made to a person in authority has not been adduced. Such statements are admissible under section 157 of the Indian Evidence Act which applies in the Territory. Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishments or the deliberately made-up case. Truth will often out in a first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others. We stress the point in the present instance because we hope we can assume that there was some responsible police officer on duty at Arusha police station when the deceased arrived there in the early hours of the morning of 20th December. The evidence of that officer would have been most valuable not only as to the details of any report taken down by him, but as to his recollection of the injuries he observed on the deceased. Strangely enough, although from the record it would appear that the depositions were returned by the Crown Law Office to the committing Magistrate with a direction to take additional evidence, the possibility of obtaining evidence from Arusha police station was seemingly overlooked. Had such evidence been obtained, and we think it must have been available,, it might have helped to clear up the puzzling discrepancy between the evidence given by P. W.5 (Abdullah bin Talib) and the medical evidence as to the position and number of the wounds found on the deceased. Further, it might well have assisted the Court in assessing the correct weight to give to the identifications subsequently made by the deceased's wife and daughter (Asha d/o Mohamed, P. W. 2 and Zaina binti Mohamed, P. W. 4). As it is, we are left with the initial difficulty that Abdullah bin Talib noticed a cut on the deceased's head, whereas the medical witnesses from the hospital observed only a hand injury. Thus Dr. Dave (P. W.6) deposed: -

"I saw a patient called Mohamed s/o Mahmud. I saw him first the same morning. I saw him when he was brought back from the theatre. He had a large incised wound between the left thumb and left index finger $2\frac{1}{2} \times \frac{3}{4} \times 1$ in. deep which could have been caused by a sharp instrument. There was another wound on left palm also caused by sharp instrument. I did not notice other injuries."

This evidence was corroborated by the next medical witness Dr. Magill $(P. W. 7)$ :

"I remember having a patient Mohamed s/o Mahmud on 20th December in hospital. I did not see him on admission but sometime later. I examined him. He had incised wounds on palm surface of all his fingers on left hand and a deep incised wound of the web of left index finger and left thumb involving muscles of the thumb. Those on fingers affected fingers.

They were down to tendon. The other wound was deeper and involved muscles. It was about 1 in. deep. I saw no signs of any other injuries on the man."

This is very definite evidence from persons whom one would expect to be exact in their observations, so perhaps it can reasonably be inferred that Abdullah's recollection was at fault. Possibly he confused the head injuries which the deceased's son undoubtedly received and which he must have seen also that night. On the other hand, the deceased's wife and daughter both also swore to his having been struck on the head with a panga. It is strange, therefore, that no question was put to Abdallah at the trial in an endeavour to clear up the matter. In view of what subsequently happened, to the deceased, it is most material to be sure of the exact number, position and nature of his injuries, and to be sure also that he was thoroughly examined on first admission to hospital, on readmission to hospital, and after death. Now it is clear that if the deceased received a cut on his head he received no treatment for it at the hospital. His hand wounds were attended to and he was discharged from hospital on 26th December and was told to attend the out-patient's department. It is not known whether in fact he did so, nor was it established with certainty whether he was given an anti-tetanus injection on first admission, although this is probable. It was proved that he was re-admitted to hospital on 31st December, and that he was then suffering a very serious infection of tetanus. Dr. Dave said that on re-admission he was in such a bad state that he could not be disturbed much. Dr. Dave again did not notice any other injuries than those on the left hand. He said these looked "well dressed". Dr. Magill in effect gave the same evidence. He was recalled by the Court, when he was questioned in turn by the Court, the learned Solicitor General and Defence Counsel. The answer to a final question by the Court, he gave the following $opinion:$

"In the absence of any injury I am satisfied the tetanus was acquired through the hand wounds. He had no other detectable injuries. It is very unusual for tetanus to arise from wounds which are not detectable."

The deceased died at hospital at 1.45 p.m. on 2nd January, 1952. There was no post mortem examination. The evidence of Dr. Magill, who was the medical officer in charge of the hospital, clearly established that the cause of death was due to a combination of tetanus, bronchial pneumonia and exhaustion. The deceased had an asthmatic history and Dr. Magill conceded that he might have developed bronchial pneumonia before the onset of the tetanus observed on his re-admission to hospital. He thought it much more likely however that the bronchial pneumonia resulted from the tetanus because bronchial pneumonia is a well known complication of tetanus. In any case he was satisfied that but for the tetanus he would not have died so quickly. This is important because, as the learned trial Judge correctly pointed out in his judgment:-

"A person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death if by any act or omission he hastens the death of a person suffering under any disease or injury which apart from such act or omission would have caused death." (Section 203 (d) Tanganyika Penal Code.)

This brings us then to the crux of the Crown case against these appellants. If they were in fact all present at the deceased's house on 19th December and shared a common intent to commit a felony with violence, and if through the wounds received by the deceased on that night the tetanus bacilli entered his body, then the appellants are responsible in law for his death..

It has been strongly urged upon us by Mr. Morgan for the fourth appellant that the prosecution evidence did not exclude two reasonable possibilities-

$(a)$ that the tetanus bacilli entered the deceased's body not through the hand wounds at all, or the head wound, if there was one, but through<br>some other scratch or breaking of the skin suffered by the deceased quite independently of any harm done to him on the night of 19th December:

(b) that after his discharge from hospital he may have received rash $\frac{1}{2}$ and negligent treatment of his unhealed wounds by some unskilled person, in which case the last part of section 203 $(a)$ of the Tanganvika Penal Code would apply, $viz :=$

"but the person inflicting the injury is not deemed to have caused death if the treatment which was its immediate cause was employed without common knowledge or skill."

As regards submission $(b)$ , there was no evidence before the learned Judge on which to base even an inference that the deceased's wounds were subjected to treatment "without common knowledge or skill" and that any such treatment,<br>if given, was the cause of the tetanus infection. To have so held would have been mere speculation. In fact such evidence as there was pointed the other way, for it will be remembered that Dr. Dave, when he saw the wounds after the deceased's re-admission to hospital, noticed that they were well dressed. This ground of appeal then most certainly fails.

It is in respect of submission $(a)$ that this Court has experienced real difficulty. It is impossible to say that there was no evidence before the learned Judge to support a finding that the cause of death flowed in a natural sequence from the wounds inflicted on the night of 19th December. Nevertheless, when the medical evidence is examined critically it must be conceded, we think, that it does not quite reach the standard of proof generally looked for and expected when the issue involves a matter of life or death. It is not a question of credibility but an examination of the data upon which the medical witnesses were working, so that in testing the value of their evidence we are in as good a position as the learned Judge.

The first fact which must excite comment is the failure to perform a post. mortem examination of the deceased's remains. Dr. Magill, when recalled said this: "A post mortem would not have disclosed anything with facilities at our disposal." Is it unfair to infer from this statement that something might have been disclosed at a post mortem conducted with adequate facilities? We think it likely that the doctor had in mind that a microscopic examination of pus from the hand wounds might have revealed there the presence of tetanus bacilli, because, according to Taylor, the bacilli remain locally at the point of invasion: (8th Edn. Taylor's Medical Jurisprudence, at page 335).

Dr. Dave said that even a trivial wound could be attacked by tetanus, and in reply to a question put in re-examination, he said, "Tetanus might take a few hours to a few days to develop." If this is a correct opinion, then it is not possible to exclude the possibility that the tetanus bacilli might have entered the deceased through some scratch or other trivial wound received by the deceased after his discharge from hospital.

The learned author of Taylor's Medical Jurisprudence cites a number of. instances where the tetanus bacilli had entered the body through some injury so trivial as to be unknown to the patient, and he stresses the great caution needed when endeavouring to connect the appearance of tetanus with a particular wound: (see page 336). In the present case we have of course the definite

evidence of both doctors that they detected no other injuries on the deceased other than the hand injury, after his re-admission to hospital, but it is not possible from their evidence to fix just how thorough an examination was made by them. Dr. Dave for instance, said that the deceased was so ill that he did not want to disturb him much, and Dr. Magill was never asked, and never said, that he examined the deceased's body for an invasion point other than the hand. No blame can possibly be attached to Dr. Magill if he did not do so, but the fact remains that a post mortem examination might have revealed such. When to all this is added the possibility that the doctors may have overlooked an injury to the head, trivial perhaps, but sufficient to cause bleeding, on the deceased's first admission to hospital, we find ourselves left in a position of doubt as to whether the medical evidence is strong enough and conclusive enough to fasten responsibility for the death of the deceased on the men who were concerned with the injuries he received on the night of 19th December.

This being the case, we are compelled to quash the conviction of murder entered against each of these appellants and to set aside the sentence of death passed on them.

This, however, does not by any means conclude the matter. If the learned trial Judge was justified on the evidence before him in finding, as he did, that each of these appellants were members of the gang who broke into the deceased's shop at night and did violence to him and other members of his family, he was undoubtedly right in law in ascribing to them a common intention to commit burglary and to overcome any resistence offered by violence if necessary. The injuries received by the deceased on the night of 19th December did, according to the medical evidence, amount to grievous harm, so that if intent can be inferred, and it clearly must be inferred, any member of the burglarious gang is guilty of an offence against section 222 of the Tanganyika Penal Code. The offence, involving as it does injury to the person, is cognate in character to the offence of murder, so that the Court of trial might have acquitted these appellants of murder and yet have found them guilty of offences against the above section. Since we can do what the trial Court might have done, it becomes necessary for us to examine, in the case of each of the appellants, the strength of the identification evidence adduced by the prosecution.

We have already referred to what we regard as an infirmity in the prosecution's case, that is that nothing is known as to whether any of the appellants were named when the first report of the burglary was made to the police at Arusha police station. Indeed on this count the defence might have called in aid section 106 of the Indian Evidence Act and have asked that it should be inferred that names were not given. The direct evidence of identification rests then on the evidence of the deceased's wife, Asha $d/o$ Mohamed (P. W. 2) and his adult daughter, Zaina binti Mohamed (P. W. 4). Between them their evidence implicated all the appellants and each appellant was picked out by one or other of them at properly conducted identification parades. There were inconsistencies and discrepancies in their evidence, but the learned trial Judge took full note of these, so that, as an Appeal Court, we are not disposed to canvass his finding as to the amount of reliance he felt he could place on their evidence. He believed that both of them were honest and speaking to the best of their recollection. There is no doubt on the evidence that lights were burning in the house at the time and that both had opportunities of seeing their attackers. We think the fact that the third inmate of the house, the deceased's son (Mahmud, P. W. 14), did not claim to be able to recognize any of the men who invaded their house tells in fayour of the learned Judge's view rather than against it, for if the women witnesses had been disposed to conspire together to make reckless charges in order to avenge themselves against Africans generally, it sems highly probable

that Mahmud would have been induced to join the conspiracy. As the learned Judge has pointed out this witness had good reasons for not being able to identify anyone. He was very seriously injured, and his attackers were between him and the light. Putting aside any question of *mala fides*, there still of course remains the possibility of an honest but mistaken identification, so that it is still necessary for us to examine the sufficiency of the evidence against each appellant with this possibility in mind.

In case of the first appellant, once the honesty of the women is accepted, there can be no question of mistake. He was well known to both of them, for he had formerly been employed by the deceased as a turn boy, a fact which the appellant himself admitted. He was picked out by both the women at an identification parade, and his story that he was in his own home at the material time was unsupported by any witness. Certainly in this case the learned Judge was absolutely justified in holding that he was a member of the gang.

As regards the second appellant, the wife Asha (P. W. 2) testified that she knew him before because he had often been a customer at the shop. Surprisingly, she failed to pick him out at the identification parade, although he was picked out with certainty by the daughter Zaina (P. W. 4). The learned Judge did not overlook this discrepancy in the identification, but he concluded from other evidence that Zaina's identification could be relied on. Two witnesses deposed to having seen this appellant in company with the fifth appellant at a house about a mile and a quarter from the deceased's shop on the night of the burglary up to about 10 p.m. They were drinking together. Now the fifth appellant was picked out by both the women at identification parades. Both the second and fifth appellants admitted being together on the night of the crime, but both said in unsworn statements that they had gone to bed drunk. It is impossible to say that the Judge on his acceptance of the truth of Zaina's evidence was not justified in his finding that both these appellants took part in the burglary. Both Asha and Zaina swore that it was the fifth appellant who struck at the deceased with a *panga*. As the Judge has pertinently remarked, one would expect the women to take special note of the man who first began the violence. Both the women were also sure that it was the second appellant together with the first appellant whom they had seen breaking open the box in Asha's room.

There remains now only the third and fourth appellants.

Mr. Morgan for the fourth appellant has struggled valiantly to persuade us that the learned trial Judge drew unjustifiable inferences against this appellant. We cannot agree. It is true that he was picked out at a parade only by Asha and missed by Zaina and Mahmud, but there was circumstantial evidence against him which support the correctness of Asha's identification. He was seen loitering near the deceased's shop on the afternoon before the crime, when he was observed to be carrying a heavy stick. After the burglary, a stick of a precisely similar type was picked up inside the shop. Mr. Morgan has submitted that the alleged identification of the stick (Exhibit B) by the witness Lengiya (P. W. 12) as the stick he saw being carried early in the evening by the fourth appellant is valueless because it is a stick of a fairly common type. We have seen the stick, which is a formidable looking knobkerrie and easily recognizable. We agree with Mr. Morgan that it may be putting it too high to say that the prosecution proved that the stick found in the shop belonged to the fourth appellant, but even conceding that the coincidence that a few hours before the crime he was seen near the deceased's shop carrying a stick exactly similar to the one subsequently found in the shop could certainly be taken into account when testing the value of Asha's identification. Nor did the evidence against this appellant stop here. Asha testified that the fourth appellant came to the shop about 4 p.m. and asked where her husband was, and this evidence corroborates the evidence of the witness Lengiyo (P. W. 12), who said he saw the fourth appellant near the shop about that hour. Mr. Morgan has made much of the fact that, when Asha picked out this appellant at the parade she identified him only as the man who had been to her shop in the afternoon, and that as, according to the evidence of Mr. Eyers (P. W. 3), the officer in charge of the parade, she had been told to pick out any person whom she had mentioned in her statement, her identification did not necessarily mean that she recognized him as one of the gang who had broken into the shop at night. The learned Judge considered this possibility and thought it far-fetched, and so do we. Furthermore, the Judge was justified in taking into account that this appellant in his unsworn statement made no reference to his presence at the shop in the afternoon and that he called his wife to say that he never left home at all on the day before the crime. If this evidence is rejected, as it must be if the evidence of Asha $(P. W. 2)$ and Lengiyo (P. W. 12) be believed, the inference of guilt against this appellant is greatly strengthened. Lastly there is the third appellant; he was picked out by both the women, and Asha said she remembered him $a_s$ the man who had struck her. She also recognized him as a man who had come to the shop about 6.30 p.m. on the same evening as the crime and had bought cigarettes. She had every reason to remember him because it was after closing time and she opened the shop because he begged her to. The learned Judge in his judgment has made a special note that this appellant possessed a very distinct physical appearance. Again on the hypothesis that Asha is an honest witness there can be no possible doubt as to the correctness of her identification. Obviously the visits of the fourth and third appellants to the shop constituted a preliminary reconnaisance of the locus.

To sum up. We are entirely in agreement with the learned Solicitor General that there was evidence before the Court which amply justifies the conclusion reached by the Judge and each of the four assessors that all these appellants were present at the deceased's shop on the night of 19th December and were there engaged on a joint burglarious adventure, sharing a common intent to do violence, if violence was necessary for the accomplishment of their object. We accordingly have no hesitation in finding them all guilty of an offence against section 222 of the Tanganyika Penal Code, and we substitute in respect of each one of them a conviction under that section for the conviction of murder entered by the High Court.

There remains the question of sentence. All the appellants have shown themselves to be vicious and brutal characters deserving of no indulgence whatsoever. They were members of a gang of 10 men who broke into the shop with the intention of rifling it, and in the course of their nefarious activities they offered violence to the deceased and every member of his family. Each of the appellants will serve a sentence of 14 years imprisonment with hard labour to run from to-day.