[1938] EACA 39

## COURT OF APPEAL FOR EASTERN AFRICA

#### Before SIR JOSEPH SHERIDAN, C. J. (Kenya); SIR CHARLES LAW, C. J. (Zanzibar); and LUCIE-SMITH, J. (Kenya).

### REX, Respondent (Original Prosecutor)

# OLUKA s/o ELOKU, Appellant (Original Accused) Cr. App. No. 161/1937

#### (From H. M. High Court of Uganda)

declaration—Circumstantial evidence—Murder— Evidence—Dying Corroboration.

The appellant appealed from a conviction of murder of one O. who died as a result of injuries inflicted on him by an assailant who entered his hut at night, tied a rope round his neck so tightly as partially to strangle him and cut off the end of his tongue. The only direct evidence against the accused was the dying declaration of O, made the morning after the assault. Other evidence did not tend to connect the appellant in particular with the crime.

Held (29-1-38).—That in all the circumstances of the assault it was reasonably possible that the deceased had wrongly identified the appellant as his assailant and that the other evidence was insufficient to remove this doubt.

Khanna for the appellant.

Dennison, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by Sir Charles Law, C. J.).—The appellant herein was convicted by the High Court of Uganda of the offence of murder and sentenced to death.

From careful examination of the record it would appear that the only direct evidence against the accused was the dying statement of Odicha s/o Adupa, the man, the appellant is supposed to have murdered.

With reference to dying statements, it is laid down in Field's Law of Evidence, 6th Edition, p. 127, that, "The caution with which this kind of testimony should be received has often been commented on. The test of cross-examination may be wholly wanting; and... the particulars of the violence may have occurred under circumstances of confusion and surprise, calculated to prevent them being accurately observed. The consequences also of the violence may occasion an injury to the mind and an indistinctness of memory as to the particular transaction. The deceased may have stated his inferences from facts concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars, from not having his attention called to them."

In Rex v. Ramazani (1 E. A. C. A. 107), it was held that too great value should not always be attached to dying statements, and they should be received with caution.

In Rex v. Mwinyibegu (2 E. A. C. A. 70), this Court again discussed the subject of dying statements and that case was referred to in the unreported case Rex v. Karsandas Govindji (Cr. App. No. 138/1935).

In an unreported Indian case, Rex v. Dadkhan, Sir John Beaumont. the Chief Justice of Bombay, pointed out that it was extremely unsafe for a Judge or Jury to act on a dying deposition alone.

In the present case, it is to be noted that from the time of the first accusation up to the present the accused has strenuously denied the truth of deceased's statement. It is clear from the judgment that the learned trial Judge was much exercised as to the question of corroboration of this dying statement.

It may be argued that the Privy Council decision in Chandaresekera v. Rex (1936 3 All E. R. 865) is in favour of the Crown. In that case the victim was conscious but owing to the nature of her wounds unable to speak, it was held that a statement elicited from her by direct questions answered by her by signs was admissible. - At p. 869 the following appears: "Apart from the evidence proceeding from the deceased woman, the other evidence was not sufficient to warrant a conviction, but at the same time that other evidence was not merely consistent with the deceased's statement but pointed in the same direction". What is the other evidence in the present case?

There is the medical evidence which described the injuries suffered by Odicha $s/o$ Adupa. That evidence bears out the description given by Odicha of his injuries. It seems to us that little weight as against the accused can be attached to this similarity as who but the deceased would be in a better position to know what injuries he had received. Then we have the witness Susana the wife of the accused man. She says: "I left the accused because he used to beat me: I had left him 3 days before my father (the deceased) was injured. Accused himself sent me away. I was willing to go back to him". She further says that her father and accused were not on good terms and used to quarrel about her but gives us no idea of the intensity of such quarrels. She further states that her father told her that accused had cut out his tongue but apparently nothing about the rope round his neck. According to her there are a lot of other houses near her father's house.

The next witness is Iyapa who lived close to Odicha. She says that one morning she found Odicha lying on the ground bleeding from the mouth. In reply to her question he said that accused had cut his tongue off as he had refused to go and bring his (accused's) wife back, and that accused had tied a rope round his neck. She states that accused and his wife used to quarrel and that deceased repeated his accusation to Irene, Danieli and Thomas. Accused was present when this repetition was made to the last two and denied the accusation, and finally that accused and deceased lived in the same compound.

Irene corroborates Iyapa and Susana as to the statement but enlarges somewhat on what was said. She further says that she had been present when accused and deceased quarrelled and fought.

Danieli corroborates the previous witnesses as to a certain extent does the Mutongole Chief Isaya who adds that he found no knife or rope in accused's house and that accused reported to him. The witnesses Tomasi and Yowana carry the case no further.

The accused gave evidence on oath thereby submitting himself to cross-examination. It is true that all the above witnesses corroborate each other in some way or another and also corroborate the fact that the deceased did make the accusation but such corroboration does not in any way implicate the accused with the commission of the offence. It may well be that the deceased honestly but mistakenly believed that the accused was his assailant but is there any evidence other than deceased's statement pointing in the same direction as that statement? It needs no great effort of imagination to visualize the deceased lying injured in his hut during the night wondering who his assailant could have been and gradually coming to the conclusion that it must have been the accused because of their previous quarrels.

As regards the question of motive, the motive suggested is that appellant was on bad terms with the deceased as he (deceased) had refused to go and fetch back his daughter, the appellant's wife. Susana the wife in question does not appear to bear this out as she says at p. 3 of the typescript: "the accused himself sent me away. I was willing to go back to him". The learned Judge found that Dr. Bennett corroborates the statement of the deceased as to the nature of the injuries inflicted on him. This does not appear to carry matters very much further for as we have already said who but the deceased would be in a better position to know what injuries he had received. There is no doubt that the deceased was attacked and injured in the way described but is there anything more than the deceased's *ipse dixit* as to who his attacker was.

Finally says the learned Judge there is evidence of opportunity, but it appears to us that there is no evidence of exclusive opportunity (see Rex v. Karsandas Govindji (supra)). It would appear that any person within a reasonable radius of the deceased's hut had just the same opportunity as had the accused.

In the result it appears to us that the whole case for the Crown resolves itself into Odicha saying in the circumstances to which we have referred "Oluka did it", while that for the defence is Oluka saving. "I did not do it".

In these circumstances, we have come to the conclusion that it would be most hazardous to convict that the element of doubt is necessarily reasonable and great and such as to entitle the accused to an acquittal.

The appeal is allowed, the conviction quashed and appellant ácquitted.