[1943] EACA 28

Before Sir Joseph Sheridan, C. J. (Kenya), GRAY, C. J. (Zanzibar) and $M$ ANNING, J. (Uganda)

**REX, Respondent (Original Prosecutor)**

ASUMANI LOGONI s/o MUZA, Appellant (Original Accused)

## Criminal Appeal No. 66 of 1943

Appeal from decision of H. M. High Court of Uganda

Criminal Law—Uganda Evidence Ordinance, Section 131—Corroboration of accomplice's evidence.

The appellant appealed from a conviction of murder. The principal prosecution witness was an accomplice. The trial Magistrate, after a careful and critical examination of the evidence, found no reliable corroboration, but nevertheless believed the accomplice and accordingly convicted the appellant.

Held (10-5-43).—(1) There must be exceptional circumstances to justify departure from the general rule that a conviction on the uncorroborated testimony of an accomplice ought not to be upheld.

Kichingeri v. R. (1908) 3 E. A. L. R. 1 referred to.

R. v. Haji Mohamed (1933) 15 K. L. R. 109 followed.

(2) Though there may be cases of an exceptional charcter in which the accomplice's evidence alone convinces the judge of the facts required to be proved, the uncorroborated evidence of such a witness should generally be held to be untrustworthy for three reasons, namely-

(a) because the accomplice is likely to swear falsely in order to shift the guilt from $himself$ :

(b) because as a participator in the crime, he is an immoral person who is likely to disregard the sanctity of an oath;

(c) because he gives his evidence either under a promise of a pardon or in expectation $(c)$ of an implied promise of pardon and is therefore liable to favour the prosecution.

Dictum of Scott, J., in *Emperor v. Maganlal*, I. L. R. 14 Bombay 119 approved.

(3) There were no exceptional circumstances which would justify a departure from the rule acted upon for a considerable time by different courts in East Africa that a conviction upon the uncorroborated testimony of an accomplice ought not to be upheld.

Appeal allowed, conviction quashed and appellant directed to be set at liberty.

## Appellant present, unrepresented.

## Gregg, Acting Attorney General (Uganda), for the Crown.

JUDGMENT (delivered by GRAY, C. J.).—In this case the learned Magistrate has examined the evidence carefully and thoroughly. He fully realized that the principal prosecution witness was an accomplice and that it was extremely desirable to look for corroboration of his story. After a careful and critical examination of all the evidence, which might be regarded as such corroboration, he has rejected it as unreliable. Bearing in mind the rule that the uncorroborated testimony of an accomplice ought not generally to be allowed to support a conviction, he has none the less arrived at the conclusion that the accomplice' ought to be believed and has accordingly convicted the appellant.

As section 131 of the Uganda Evidence Ordinance (which corresponds to section 133 of the Indian Evidence Act) shows, a conviction on the uncorroborated testimony of an accomplice is not illegal. In *Kichingeri v. R.* (1908), 3 E. A. L. R. 1, this Court upheld such a conviction, but was careful to add: "We have arrived at this decision entirely on account of the exceptional circumstances of this particular case". But as also said by this Court in $\dot{R}$ . v. Haji Mohamed (1933), 15 K. L. R. 109, there must be exceptional circumstances to justify departure from the general rule that a conviction on such uncorroborated testimony ought not to be upheld.

In Kichingeri's case the uncorroborated evidence of the accomplices was held sufficient to support the conviction because the witnesses in question made no attempt to shield themselves and in fact believed that they were fully justified in acting as they did, because their act had the sanction of tribal custom. But, as said by Scott, J., in *Emp. v. Maganlal*, I. L. R. 14 Bom. 119, though there may be cases of an exceptional character in which the accomplice's evidence alone convinces the judge of the facts required to be proved the uncorroborated evidence of such a witness should generally be held to be untrustworthy for three reasons, namely (1) because the accomplice is likely to swear falsely in order to shift the guilt from himself, (2) because as a participator in the crime, he is an immoral person who is likely to disregard the sanctity of an oath, and (3) because he gives his evidence either under a promise of a pardon or in expectation of an implied promise of pardon and is therefore liable to favour the prosecution.

In the present case the evidence of the accomplice, Petero Lomo, suffers from all the defects generally to be found in the evidence of such a witness. As the learned Magistrate says, it is highly probable that he was directly implicated in the crime. There is a distinct motive for him to endeavour to shift the guilt on to the appellant's shoulders. There are no exceptional circumstances which would justify a departure from the rule acted upon for a considerable time by different courts in East Africa that a conviction upon such uncorroborated testimony ought not to be upheld. In the absence of such exceptional circumstances this appeal will be allowed, the conviction will be quashed, and the appellant is directed to be set at liberty.

$\mathcal{L}(\mathcal{Y})$

$\mathcal{C}^{\infty}(\mathcal{C}^{\infty})$ $\mathcal{M}^{\text{max}}_{\text{max}}(x)$

$\mathcal{L}$ $\mathbb{C}^{\mathbb{N}^{\mathbb{N}}}_{\mathbb{N}^{\mathbb{N}}}$ $\{X_{i}, i$ $\mathcal{L}_{\mathcal{L}}(\mathcal{L})$

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$\sim$ 1. $\mathcal{L}_{\mathcal{A}}$ $\leq \mathbb{C} \mathbb{C}[\mathcal{H}^{-1}]$