[1940] EACA 16

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB, C. J. (Tanganyika)

## REX. Respondent

## PREMJI KURJI, Appellant Criminal Appeal No. 55 of 1940 (Appeal from H. B. M. High Court of Zanzibar)

## Criminal Law—*Res gestae*—Evidence—Murder.

Appellant appealed from a conviction of murder. The deceased had been killed with a dagger. Evidence was admitted of the fact that just prior to the death of the deceased the accused had assaulted the deceased's brother with a dagger and had uttered threats against the deceased.

Held (10-5-40).—That evidence of the attack on the deceased's brother was admissible in the circumstances as part of the res gestae.

Appeal dismissed.

Ishmael for the Appellant.

Grigg, Solicitor General (Uganda) for the Crown.

JUDGMENT (delivered by WHITLEY, C. J.).—Mr. Ishmael for the appellant has raised two points of law.

Firstly he objects that the evidence of the wounding of Jamnadas by the appellant just prior to the killing of the deceased was evidence of the commission of a separate offence and therefore inadmissible. It is true that it is not permissible to lead evidence of an accused having committed an offence of a similar nature in order to show that he is likely to have committed the particular offence with which he is charged and if this wounding had taken place in a different part of Zanzibar and were not connected with the murder this objection would of course be well founded but here the two occurrences are so closely interconnected that the wounding of the deceased's brother must be regarded as part of the res gestae on the trial of the appellant for the murder of the deceased. The brother Jamnadas when wounded was working in the shop of his brother, the deceased, whilst the latter was in the godown of the shop nearby. After wounding Jamnadas the accused is alleged to have said, "I have finished you and am going to show your brother" or according to another witness, Tulsidas,<br>"I am going to finish your brother". Immediately afterwards the accused was seen at the godown standing over the deceased dagger in hand. As is explained in the notes to section 6 and 7 of the Indian Evidence Act and cases there cited in Woodroffe & Ameer Ali when two acts of an accused are so interwoven as to form part of the same transaction it is not proper to shut out evidence of one of the acts even though it may involve introducing evidence of the commission of another offence by the accused. The prosecution are entitled to put forward their whole story, otherwise it may be quite impossible properly to appreciate the nature of and reasons for the act in respect of which the accused is being charged. Similarly under section 7 of the Evidence Act the fact that accused had a dagger and used it immediately before the alleged killing by him of the deceased with a dagger must be admissible as strong evidence of opportunity. We have no doubt that this evidence was rightly admitted.

The second objection raised is that the evidence of the last two prosecution witnesses, Kombo and Mirza, should not have been admitted inasmuch as they had not been called at the preliminary inquiry and no notice of intention to call them had been given to the defence as required by section 284 of the Zanzibar Criminal Procedure Code. It was stated from the Bar by prosecuting counsel<br>that the prosecution only became aware of the existence of these two witnesses on the day before they were called and did not know the evidence which they could give until the day on which they gave their evidence. Their evidence was accordingly admitted as falling within the proviso to section 284 which provides that no such notice need be given if the prosecution first became aware of the evidence which the witness could give on the day on which he is called.

The witness Mirza stated in evidence that he made his statement to the Police the day before but we think that the learned Chief Justice was right in accepting the unchallenged statement of prosecuting counsel that he had only become aware of what these witnesses could depose to on the morning of the day when they were called as witnesses. Had defending counsel felt that the appellant was being embarrased in his defence he could have applied for an adjournment which would no doubt have been granted. We think the evidence of these two witnesses was rightly admitted.

Even if it had been excluded we feel that the learned Chief Justice, in view of the fact that he definitely, and, in our opinion with good reason, rejected the appellant's explanation of how he came to be standing, dagger in hand, over the deceased and after most carefully weighing the evidence of the other prosecution witnesses, believed them to be telling the truth, must inevitably have come to the same conclusion and convicted. That being so, as has been frequently pointed out by this Court, following the rulings of the Court of Appeal in England and also by virtue of section 167 of the Zanzibar Evidence Decree the admission of this evidence, even though it were improper, would be no ground for quashing the conviction.

Mr. Ishmael's final submission was that on the evidence it was unsafe to convict and that the appellant should have been given the benefit of the doubt. He drew our attention to certain discrepancies but these were carefully considered by the learned Chief Justice who gave sound reasons for his findings as to the facts. Those findings amply support the conviction. Mr. Ishmael pleaded for mercy on the ground of the appellant's youth. As to that it only remains for us to say that it is for the trial Judge to make his report to His Excellency who has certain powers which in a proper case are always exercised.

The appeal is dismissed