[1948] EACA 45

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and MARK-WILSON, AG. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

## SHAGENDA s/o GINGILI, Appellant (Original Prosecutor)

## Criminal Appeal No. 200 of 1948

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law-Murder-Evidence-Extra-judicial confession to District Commissioner-Whether at the time in capacity of police officer or Magistrate-Admissibility—Indian Evidence Act, section 25—Accused's subsequent statement, not denying confession, to committing Magistrate-Statement put in evidence at trial—Whether confession properly before the Court.

The appellant was convicted of murder, the conviction being based almost entirely on a confession made to a District Commissioner who had also investigated the case in his capacity of police officer. At the committal proceedings, in reply to the statutory caution the appellant said: "I have nothing to add to my previous statement to the First Class Magistrate already put in evidence". This statement was also put in evidence at the trial. The relevant facts appear fully from the judgment below.

**Held** (25-10-48).—(1) That from the evidence, the confession was taken by the District<br>Commissioner while acting as a police officer investigating the case and was therefore<br>inadmissible under section 25 of the Indian Evi

R. v. Ndundu and others (1948), E. A. C. A. (101) referred to; R. v. Jigungu, 10 E. A. C. A. 111 referred to.

(2) That the committing Magistrate and the trial Judge could not have understood what the appellant meant by "My previous statement to the 1st Class Magistrate" without calling for and looking at the recorded confession which would have been in contravention or violation of the provisions of section 25 of the Indian Evidence Act.

Appeal allowed.

Appellant absent, unrepresented.

Bennett, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).-The appellant was convicted of murder by the High Court of Tanganyika at Tabora and sentenced to death. Against the conviction and sentence he now appeals to this Court. It was conceded at the Bar before us by learned Crown Counsel (Mr. Bennett) that the conviction was based almost entirely on an extra-judicial statement made by the appellant to an Administrative Officer, Mr. Flatt, the District Commissioner of Kahama District and a 1st Class Magistrate. It thus becomes necessary to consider the circumstances under which that statement was made. We may say at once that, in his statement to Mr. Flatt, the appellant made an unqualified confession to having murdered a woman named Sundi d/o Solo. His motive for murdering her was that he believed that Sundi had killed his wife and also his brother by witchcraft. We also hasten to say that there can be no question but that the statement made by the appellant to Mr. Flatt was a voluntary one. A difficult question falls for decision, namely, whether, at the time he recorded the statement, Mr. Flatt was acting as a police officer, having regard to section 25, Indian Evidence Act and the judgment of this Court in Rex v. Ndundw and others (Criminal Appeals 86 to 96 of 1948) and Rex v. Jigungu, 10 E. A. C. A. 111. In evidence before the High Court Mr. Flatt said "On 6th March Shagenda (Appellant) was brought to my office at Kahama by Sergeant Esebius. I asked

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the prisoner who arrested him. He said that I arrested him on the previous Saturday at Kaselya. I was in Kaselya making inquires. I was in my car. I visited the house of Shagenda. I saw Shagenda and his son Kalindwa. There was a police constable there and I told him to bring Shagenda and his son into Kahama for further questioning. I never touched Shagenda. I did not formally arrest him. When the accused came into my office on 6th March I asked him if he had been threatened or induced to make a statement or hurt and he said that he had not been hurt or offered any inducement to speak. He replied that he wished to make a statement. I then informed him that he was before a Magistrate and that he might make a statement if he wished, that he was not bound to make a statement and that anything he might say would be recorded and might be used in evidence at his trial". To my warning he replied: "It is true I did the murder along with Utarotwa but my two sons were not in it". Mr. Flatt then proceeded to give evidence as to his recording the appellant's statement. In cross examination Mr. Flatt admitted that he started the investigation of this case and that when he went to Banhi (the village of Utarotwa) he was acting in the capacity of a police officer as he was in charge of the Police Kahama District, and was also the Magistrate responsible for law and order in his district.

The appellant came into Kahama on Saturday, 28th February, and was arrested at about 6 or 7 p.m. On Mr. Flatt's return to Kahama on the evening of 28th February he told the police sergeant to put the appellant under arrest. When Mr. Flatt sent the appellant to Kahama with the policeman he did not tell the latter to arrest him. Mr. Flatt went on to say "I said that he should take the necessary measures to prevent him running away". Mr. Flatt admits that he was then acting as officer in charge of police.

Having regard to that evidence we are constrained to hold that the statement was taken when Mr. Flatt was, in fact, acting as a police officer investigating the case and, in such circumstances, the statement was inadmissible.

We fully realize the difficult dual position in which Mr. Flatt found himself. namely, that of being at the same time the officer in charge of the police in Kahama District and also the Magistrate responsible for law and order in his district, and we fully sympathize with him. Nevertheless, in view of the authorities cited we consider that the statement was inadmissible. But this by no means ends the matter. When before the committing Magistrate (Mr. Sadleir) the appellant, after the statutory caution had been administered by the Magistrate, said "I have nothing to add to my previous statement to the 1st Class Magistrate (that is, Mr. Flatt) already put in evidence". At the trial in the High Court learned. Crown Counsel (Mr. Bennett) put in the statements made by the appellant and his co-accused, Utarotwa, and the statements were read, interpreted and put in evidence and marked as Exhibits "E" and "F".

The question for us to decide is whether the statement made to Mr. Flatt can. be said to have been properly before the High Court. Now, had the appellant in terms repeated to the Magistrate the words he uttered to Mr. Flatt, the position wou'd have been different. But the test seems to us to be whether either the committing Magistrate or the learned trial Judge could have understood what the appellant meant by the words "my previous statement to Mr. Flatt" without calling for and looking at the paper on which Mr. Flatt had recorded the statement. It is clear that the answer to this must be in the negative. The next question is whether the calling for and perusing of that paper would have been in contravention or violation of the provisions of section 25 Indian Evidence Act, the wording of which is as follows:-

"No confession made to a police officer shall be proved as against a person accused of any offence".

We think that the answer to this question is in the affirmative. The necessity of referring to what we have held to be the inadmissible extra-judicial statement made to Mr. Flatt would amount to an incorporation of that inadmissible statement in the evidence; for in it alone could be found the actual terms of the alleged confession. Its incorporation would thus constitute the proving in a round about way of a confession made to a police officer, which section 25 strictly forbids.

Since, except for the statement to Mr. Flatt, there was not sufficient evidence implicating the appellant in the crime it follows that the conviction cannot stand. The appeal is, accordingly, allowed and the conviction quashed and the sentence set aside. The appellant will be released forthwith.