[1935] EACA 87

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, P., HALL, C. J. (Uganda), and WEBB, J. (Kenya).

REX. Respondent (Original Prosecutor)

ALUKANI s/o ALIMUNYA, Appellant (Original Accused). Criminal Appeal 39/1935.

Criminal Law—Evidence—Retracted confession—Corroboration.

Held (24-4-35).-That it is not safe to act on a retracted confession of an accused person unless it is corroborated in material particulars and that a statement made by the accused when called upon to plead to the charge of murder cannot, so far as regards that charge, be regarded as such corroboration.

(Decision of Special District Court, (Uganda) reversed).

The facts appear from the judgment.

Appellant in person.

Turton (Attorney General) for the Respondent.

JUDGMENT.—As regards the facts of this case it appears that the only evidence purporting to connect the appellant with the crime, other than his own statements, with which we shall deal later, was that one morning (apparently the 19th March) the accused Malyamu came to his house and had a conversation with him, that a little later he and she and the deceased Aluku were seen sitting together on the verandah of Erisa's house, that he was absent from his work on that day and returned home late appearing as if he had quarrelled with someone, and that on the 22nd March he pledged a knife with Fatuma. All this evidence is consistent with his innocence and explicable by the fact that Malyamu is his sister. It is further to be observed that there was only the vaguest suggestion of motive and that not made by the husband of the deceased, who, on the contrary said: "Neither of the accused have ever given me cause for complaint; they are both good friends".

In his unsworn statement before the Committing Magistrate on the 19th June, the appellant admitted having killed the deceased. At the trial, which for no very obvious reason did not take place until December, he retracted that confession. The law as to a retracted confession is that it should be regarded with grave suspicion: Sheonarain Singh v. King Emperor (I. L. R. 8 Patna 262); and a Court should be slow to act upon it unless it is corroborated by other evindence: Emperor v. Shambhu (I. L. R. 54 All. 350) in which case MEARS, C. J., said (at p. 358):

"The evidentiary value of a retracted confession is very little, and it is a rule of practice, as also a rule of prudence, that it is not safe to act on a retracted confession of an accused person unless it is corroborated in material particulars". Here the confession followed immediately after and is in almost identical terms with a sworn statement by the other accused—the appellant's sister-in which she threw all the blame upon him, although, it is to be remembered, she had made four previous statements, two denying all knowledge of the affair, the third taking the blame upon herself, and the last ascribing the murder to the appellant.

Apart from the appellant's plea at the trial there is nothing in the evidence to corroborate his confession, nor can it be said, as was said in $R$ . $v$ . Davidson (25 Cr. App. R. 21), that his conduct was inconsistent with the story told by him at the trial. His plea when arraigned was in the following words: "I have nothing more to say now. I have already admitted that I killed the woman. If all the witnesses come before the Court and say that I killed the woman, then why should I not admit it"? This could not be regarded as an unequivocal plea of guilty and the trial Magistrate rightly did not so regard it. A plea of not guilty to the charge of murder having been entered the words used by the appellant cannot be construed in derogation of that plea (\*R. v. Primin bin Kunjanga, Cr. App. No. 27/1934), and, so far as regards the charge of murder, should be entirely disregarded.

In the circumstances, we are of opinion that there being no evidence to corroborate the retracted confession, the appeal must be allowed and the conviction quashed. The accused must be discharged.

\*Page 64 of this volume.