[1951] EACA 195

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

# REX, Respondent (Original Prosecutor)

#### $\nu$ .

# JESSICA D/O ANDREA, Appellant (Original Accused)

### Criminal Appeal No. 150 of 1951

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

Murder—Accused's exculpatory statement to police officer—Admissibility. Reading deposition of medical witness at trial-Section 276 Tanganyika Criminal Procedure Code.

The appellant made a statement to a police sub-inspector after arrest which contained nothing inculpatory. The statement was admitted at the trial as not falling within section 25 Indian Evidence Act.

The sub-assistant surgeon was not available for cross-examination at trial and his deposition was read *vide* section 276 Criminal Procedure Code.

Held (27-6-51).—(1) A statement to a police officer which is not inculpatory is admissible in evidence.

(2) Section 276, Criminal Procedure Code, may be invoked in cases of necessity but it is often essential that depositions of medical witnesses should be tested by crossexamination and the trial Judge should have the advantage of having the expert witness before him.

Appeal dismissed.

## Twelftree for appellant.

Summerfield for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—The appellant in this case is a married woman who was convicted by the High Court of Tanganyika of the murder of a few weeks' old male child, the illegitimate son of her husband by another woman. The first point taken in the Memorandum of Appeal is that a statement made by the appellant to a sub-inspector of police after her arrest was wrongly admitted by the learned trial Judge. The question as to its admissibility has not been seriously argued before us but since it is manifest that its reception in evidence told greatly against the appellant it is essential that we should deal with this submission. By section 25 of the Indian Evidence Act which applies in Tanganyika no confession made to a police officer can under any circumstances be admitted in evidence. Where statements made to police officers are partly incriminatory and partly exculpatory difficulties sometimes arise in the application of this section. In the present case however no such difficulties do arise because as the learned trial Judge rightly held there was nothing inculpatory in the statement. The statement maintained that she knew the circumstances under which the deceased infant had fallen into the well, circumstances which if true did not incriminate her, and included also an admission that through fear she did not raise the alarm as she should have done. Her statement was relevant to the facts in issue and was clearly admissible. The learned trial Judge thus had before him the evidence of the infant's mother Kavumbe, which, if accepted, established. that the appellant had the deceased in her charge when last seen alive, and that the appellant had denied that this was so. Learned counsel for the appellant has argued that Kavumbe's evidence is suspect because she first stated that the appellant had taken the child away from her house whereas later in her evidence she changed her story and said that the child had been left behind by her at the appellant's house. The second story is in fact consistent with her deposition before the committing magistrate and from the record of her evidence at the trial it is clear that she deliberately corrected her first statement which she said was due to a misunderstanding. Taking into account difficulties which do arise over interpretation this may well be so. Furthermore in his judgment the learned Judge has recorded his impressions of Kavumbe: "She gave her evidence in a forthright manner and was quite unshaken in cross-examination". She was on her own admission a woman of loose morals but, we are not prepared, on account of this, to disturb the learned Judge's finding of fact that she was speaking the truth when she said that she had left her baby in the appellant's care when she last saw it alive. Kavumbe's sister, Hadija, whose evidence the learned Judge also accepted, corroborated Kayumbe as to the appellant's denials that she had ever had the child in her keeping. On this evidence then the learned Judge was left with the position that the appellant had invented a story that the baby had slipped accidentally into the well when being carried by its mother and that she had denied untruthfully that it had been left in her care. We must observe here that apart from the appellant's statement to the police inspector the appellant has at all times said nothing. On committal she told the Magistrate that she was reserving her defence and at the trial she stated that she had nothing further to sav.

The crux of this appeal however turns, not as to the correctness of the inferences drawn by the learned Judge from the appellant's lying statement and conduct but, on the issue as to whether the prosecution proved beyond reasonable doubt that the deceased died an unnatural death at all, either by accident or at the hands of another. On this aspect of the case Mr. Twelftree has argued stoutly that the medical evidence was unsatisfactory and inconclusive and that the appellant was prejudiced by the fact that the deposition of the sub-assistant surgeon (P. W.5) was not subjected to cross-examination at the trial; for the Crown relying on the provisions of section 276 of the Tanganyika Criminal Procedure Code obtained the permission of the trial Judge to have the deposition read without calling the witness. According to the deposition of this sub-assistant surgeon he found 20 scratches on the mouth, lips, nose, face, chin and both eyes of the deceased and cuts on the mouth and lips. These injuries by themselves could not have caused death but he could not be certain whether they were ante-mortem or post-mortem. He thought the scratches could have been caused by the child's nails but he did not think that the cuts or scratches would have been received on falling into the well-water unless there was some wire or other object in the well. As to this there was no evidence. He found froth on the nose and mouth and the lungs were extended and congested. The stomach contained food and water mixed. He was of the opinion from his external and internal examination of the body that the cause of death was due to asphyxia due to drowning. Prima facie we see no reason to question the soundness of this opinion, but Mr. Twelftree has submitted that as the body was found just below the surface of the water in the well which was 4 ft. deep (see the evidence of Saudi, P. W.4) this shows that the doctor was wrong for a drowned body would have sunk to the bottom. We understand his argument to be that the child must have been already dead when it fell into, or was put into the well and that as the injuries found on the child were not by themselves sufficient to cause death, the possibility that it died by natural causes is not excluded. There might be force in this submission but for the sub-assistant's account of the condition of the lungs and stomach which were consistent with death by drowning. Furthermore, it is indicated by the evidence of the men who searched the well that they did not find the body at once, so that it seems reasonable to infer that it may have been brought to the surface or near to the surface by the churning up of the water as the search proceeded. We think, therefore, that there was evidence before the learned Judge on which he could conclude and that he could only conclude that the cause of death was drowning.

We are left with the question of prejudice. Mr. Twelftree has pointed out that the defence had a right to expect the attendance of the sub-assistant surgeon at the trial because the record before the committing magistrate shows that he was bound over with the other witnesses to appear under the provisions of section 228 of the Criminal Procedure Code. We have been informed by Mr. Summerfield, for the Crown, that it is the practice in Tanganyika to inform the Committing Magistrate through the Registrar of the High Court when the prosecution intends to rely on the provisions of section 276 and that this was done in this case. We have, in fact, checked that this was so but there is nothing on the form to indicate that either the appellant or her advocate was informed prior to the trial. We fully appreciate the conditions in Tanganyika which make it necessary often for the Crown to call in aid the provisions of sub-section (1) of section 276. We trust, however, that its application will never be regarded as automatic either by Judges or by prosecuting counsel. In murder trials it is often essential in difficult cases that the depositions of medical witnesses should be tested by cross-examination and that the trial Judge should have the advantage of having the expert witness before him. If we thought that in the present case the trial of the appellant had been in any way affected by the non-presence of the medical witness we should not hesitate to intervene, but as it is, we are quite definitely of the opinion that it was not. The appellant was represented by counsel at her trial who raised no objection to the Crown's application. Had he done so we feel certain that in the circumstances of this case the Court would have granted an adjournment. Having regard to the appellant's statement to the police no blame can be attached to defending counsel for it was part and parcel of the appellant's defence that the child had met its death by drowning. We are not surprised therefore that counsel was prepared to accept the medical deposition at its face value.

One other factor in this case needs consideration. Did the prosecution remove beyond reasonable doubt the possibility of accidental death, caused perhaps by the negligence of the appellant and not as she asserted by the negligence of the deceased's mother, Kavumbe. We have given this question our most careful consideration but we have come to the conclusion that the cogent reasoning of the learned trial Judge on this point cannot be set aside. After making allowance for panic and fear, one is left with the damning character of the appellant's false statement to the police. She denied that she had ever had charge of the child which was unable to walk or get to the well under its own motion. She admitted that she was at the well with the child and that it was then alive. She hid the cloth which was round the child's body in a latrine cess pit. Although there was evidence that she had shown affection to the child, it was the offspring of her husband's paramour. She made no effort to raise the alarm or to save the child or to tell her husband that there had been an accident. Once that part of her statement which involves Kayumbe is rejected, we are of the opinion that the weight of the circumstantial case against the appellant is so heavy as to justify the learned trial Judge in coming to the conclusion that he did. Before doing so he fully took into account the opinions of the assessors, both of whom were of the same tribe as the appellant and a different tribe to Kayumbe. Both of them believed that Kavumbe and her sister had falsified a case against the appellant but on this issue of fact the responsibility of determining it was on the learned Judge and as we have already said it is impossible for us to say that his finding was a wrong one.

On that finding the inferences that the learned Judge drew were the only possible ones and established in our view beyond reasonable doubt that the appellant was criminally responsible for the death of this child. For these reasons her appeal must be dismissed.