[1946] EACA 21
The Court held that while the statement of the dying woman could not be admitted under section 223 of the Criminal Procedure Code due to procedural irregularities, it was nonetheless relevant and admissible under section 32(1) of the Indian Evidence Act. The statement was properly proved and considered,...
Source-derived case information.
- Citation
- [1946] EACA 21
- Parties
- Appellant: Mimbi s/o Ipopo; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 292 of 1945
- Procedural Posture
- Criminal Appeal / Appeal From High Court Decision
- Outcome
- appeal_dismissed
- Judges
- Graham Paul CJ, Sheridan CJ, Whitley CJ
- Legal Topics
- Admissibility of Evidence, Dying Declaration, Procedural Irregularity, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mimbi s/o Ipopo
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Decision
Legal Issues
- 1 Whether a dying declaration not taken in accordance with the Criminal Procedure Code can be admitted as evidence.
- 2 Whether section 32(1) of the Indian Evidence Act applies to statements regarding the cause of death.
Ratio Decidendi
The Court held that while the statement of the dying woman could not be admitted under section 223 of the Criminal Procedure Code due to procedural irregularities, it was nonetheless relevant and admissible under section 32(1) of the Indian Evidence Act. The statement was properly proved and considered, strengthening the prosecution's case. The Court found no reason to disturb the conviction, as the evidence and probabilities supported the original judgment.
Court Disposition
appeal_dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA
Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)
REX, Respondent (Original Prosecutor)
## MIMBI s/o IPOPO, Appellant (Original Accused)
Criminal Appeal No. 292 of 1945
## (Appeal from decision of H. M. High Court of Tanganyika)
Evidence—Statement as to cause of death—Section 221 Criminal Procedure Code (Tanganyika)—Irregularity—Section 223 Criminal Procedure Code (Tanganyika)-Indian Evidence Act Section 32 (1).
On the question whether the statement of a dying person as to the cause of his death not taken in accordance with the provisions of the Criminal Procedure Code could be used in evidence.
Held (18-1-46).—That while such a statement cannot be used in evidence under the provisions of section 223 Criminal Procedure Code it is relevant under section 32 (1) of the Indian Evidence Act.
Appeal dismissed.
Appellant absent, unrepresented.
Phillips, Crown Counsel (Kenya), for the Crown.
JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—We have had the advantage of a very close and helpful examination of the evidence by Mr. Phillips and have come to the conclusion that the judgment appealed from is in accordance with the evidence and the probabilities. There is one question of law to which we would refer. The learned Judge excluded the statement made by the dying woman to Mr. Gawthorne for the reason that certain procedural requisites were not complied with, such for instance as the failure to give the notice prescribed by section 221 Criminal Procedure Code. We agree that because of the failure to comply with those requisites the statement could not be used in evidence under the provisions of section 223 Criminal Procedure Code—that is it could not be read at the trial as for instance in the case of the statutory statement or depositions of an accused person or the deposition of a witness who was dead or couldn't be traced made before a Magistrate at a preliminary inquiry. But the provisions of section 32 (1) of the Indian Evidence Act were apparently overlooked. The section provides:-
"When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question."
The statement of the dying woman was duly proved to have been made by the evidence of Mr. Gawthorne and Musa s/o Saidi who interpreted from Kinyaturu into Kiswahili. We have taken the statement into consideration and its effect is to strengthen the Crown case. The assessors gave commonsense opinions when they believed that the murder was not the work of outsiders.
The appeal is dismissed.