[1942] EACA 60

# ORIGINAL CRIMINAL

# BEFORE THACKER, J.

#### REX, Prosecutor

v.

## KIRIPO S'/O LOKARKAR, Accused

### Criminal Case No. 59 of 1942

'Murder—Evidence of age of accused—Onus on prosecution to prove age—Reasonable doubt.

The accused was convicted of murder. The medical evidence as to whether or not the accused was under sixteen years of age was conflicting.

Held (22-6-42).-(1) That the onus of proving the accused's age remained always upon the prosecution.

(2) That the Crown had not proved beyond any reasonable doubt that the accused was over sixteen years of age.

(Accused sentenced to be detained during the Governor's pleasure under section 26 (2) of the Penal Code.)

O'Hagan, Acting Crown Counsel, for the Crown.

Russell for the accused.

JUDGMENT.—The three assessors all find the accused guilty of murder. With that opinion I agree. The evidence for the Crown, remarkably well remembered and narrated more than two years after the event, together with the statement made in the lower Court by the accused, upon which he now relies, leaves no doubt whatever that this youthful accused together with another youth and two older men, set out armed with spears with the express and common intention of breaking into the shop of Gulab a shopkeeper and of robbing and ransacking it of the trade goods therein; and furthermore of killing or doing violence to whomsoever might resist them in their felonious purpose. It was a revoltingly brutal attack. Two Somalis who were amongst those in charge of the shop and who were asleep on their beds on the veranda at the time the four accused entered, were given no chance of resistance. They were instantly and brutally murdered and almost all of the shop goods were taken by the four assailants. The evidence does not suggest that this present accused actually killed or wounded either of the two Somalis, but he was one of the party of four; he had his own spear, he used it he says on a sack as he thought—in fact it went through the thigh of a more fortunate employer of the shop who managed with difficulty to get away before he too was murdered. This accused then kept with the party—was one of the four men who were cleverly traced to Paacho and he was there seen with the other three, celebrating their crime with a feast of roasted goat, and he was there when the four were seen to be counting the money spoils of their crime. He ran away with the other three when the tracking party came on the scene. The accused says he had no heart for the crime and was nervous. Be that as it may, he took part in it and I surmise that if he had seriously objected to being or remaining a member of the gang and that if he did not wish to form the common intention to rob and to do violence he could quite easily have refused. to join in or later left the party. There is not the slightest doubt upon the evidence that this accused quite willingly took part in what he knew was going to be a crime of robbery with violence, and that, if necessary, killing should be resorted to in order to effect the gang's wicked and fell purpose. The only thing that can be said in the accused's favour is that to some extent he may have been persuaded into it by older and more dangerous men and that he was not at the time of mature age. I accordingly convict the accused of murder as charged.

The question of deciding whether the accused is guilty or not guilty of the offence charged is relatively easy compared with the question of deciding what is the proper sentence to pass now that he has been found guilty, having regard to the extraordinary conflict of evidence as to the accused's present age. Considerable time and care have been taken by the Court and the counsel in an endeavour to ascertain what is now the accused's approximate age. Evidence was given in the lower Court by Dr. Jaswant Singh in April last that the accused was then between fifteen and sixteen and this doctor has maintained this opinion before me at this trial, namely that he is still under sixteen years of age. The accused on being arraigned certainly appeared to me and to the Crown Counsel as being older than 15–16 years of age, and I therefore requested that further, medical examination and evidence be obtained. This was done, and also an examination by the Court itself in the presence of counsel and assessors took place. Dr. Hale is of opinion after examination that the accused is between 18-19 years of age and has given his reasons for holding that opinion.

Dr. Ross, also called as a witness, says that after examination he would put the accused's age at 20 and even as much as 22. He says that the accused certainly is not under 16 years of age.

As I have said Dr. Jaswant Singh has also reiterated at this trial his opinion that the accused is under 16 years of age. It is somewhat extraordinary that medical science in these days of scientific progress can vary so widely as to place this accused's age at anything between 15 and 22 years, and the Court finds it impossible to reconcile the medical evidence. At first I was inclined to rely more upon the evidence of Dr. Hale and Dr. Ross rather than upon that of Dr. Jaswant Singh, in view of my own opinion based on the accused's facial appearance. 1 am however fully aware that my opinion may be of little or no value in trying to estimate the age of a native more especially a growing one. The examination, however, of the accused, in Chambers in the presence of counsel led me to modify somewhat my opinion and to think that the accused may be as young as 17 years of age, or about 15 years of age at the time of the crime. But I still find it difficult to accept that the accused is under 16 years of age. I have given that matter much anxious consideration and I do not feel myself in view of the conflict in the medical evidence competent to adopt any arbitrary method of arriving at the accused's age. I cannot emphatically say and as I see it, I ought not to hold that Dr. Jaswant Singh is of necessity wrong. He may just possibly be correct, and it is to be remembered that this doctor is a witness for the prosecution.

In other words, I do not feel that I am entitled to disregard entirely Dr. Jaswant Singh's evidence and to accept the evidence of either Dr. Hale or Dr. Ross or less still to rely on my own observation or opinion. The utmost that I can say in these difficult circumstances is that there appears to be a reasonable doubt what the age of the accused is and in particular whether he is now under 16 years of age.

I conceive it my duty to give to the accused the benefit of that doubt, as it is on a material matter, in the same way as the Court should on any other material matter, upon which there is, from the evidence regarded as a whole, a reasonable doubt. The onus of proving the accused's age remained always upon the prosecution and in view of Dr. Jaswant Singh's evidence, notwithstanding Dr. Hale's and Dr. Ross's evidence, the Crown has not proved beyond any reasonable doubt that the accused is over 16 years of age. I therefore find as a fact, not, without considerable hesitation that the accused is at the time of this trial still under 16 years of age. I may add that all the assessors are also of this opinion. Having regard to this finding, the appropriate sentence is contained in section 26.(2) of the Penal-Code and the sentence of the Court is that the accused be detained during the Governor's pleasure.