[1938] EACA 163

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J. AND THACKER, J.

## REX, Respondent

#### v.

# HASSANALI JAN MOHAMED, Appellant

## Criminal Appeal No. 145 of 1939

Misdirection—Conflict between extra-judicial statement of a witness and her evidence—Credibility.

Appellant was charged with committing an indecent assault on the modesty of a woman contra section 127 (3) of the Penal Code in that he did "assault complainant by catching hold of her and kissing her" and also with common assault contra section 228 of the Penal Code.

The complainant alleged that she had been accosted and kissed. against her will by the appellant and she stated in evidence that the appellant had not attempted to tear off her clothes. Shortly after the time of the alleged assault she met a Superintendent of Police and made a report to him. As a result the superintendent arrested the appellant and made a note in the Police Occurrence Book at Nairobi Police Station to the effect that the complainant charged the accused with attempting to kiss her and further tear off the clothes she was wearing.

The superintendent stated in evidence that the complainant had told him that the appellant had torn off her clothes.

In convicting the appellant of common assault the magistrate stated: "As for the entry in the Occurrence Book about an attempt by the accused to tear off complainant's clothes complainant said she had no recollection of saying that as it did not take place but further and more important I do not have to consider that at all. The accused is not charged with it".

Appellant appealed.

Held (23-9-39).—That there had been a serious misdirection which amounted to the exclusion from consideration of most important evidence. (Appeal $allowed.$ )

Archer for the Appellant.

## Phillips, Crown Counsel, for the Crown.

JUDGMENT.—It has been argued inter alia on behalf of the appellant that the complainant made two different statements with regard to the assault alleged to have been committed upon her, the first statement being recorded in the Occurrence Book at the Police Station and the second in her evidence. Any material difference in such statements in a case of the nature under appeal has a considerable bearing on the question of the guilt or innocence of a prisoner where the charge is denied by him and should be carefully examined.

The statement in the Occurrence Book reads as follows:

"O. B.53, 20-5-39, 2.10 p.m.-Mr. G. R. Gribble, A. S. P., to Station and brings in Hassan Ali s/o Jan Mohamed, Box 57, Nairobi, of the Cheap Store, Hardinge Street, Nairobi, who is charged by Miss E. D. Stevenson, c/o Mr. Gribble, under section 127 (3) P. C. 'Insulting the modesty of a woman' in that at about 1.45 p.m. he asked Miss Stevenson the whereabouts of a house and name written on an envelope which he produced on the commonage opposite the D. C.'s office and thereafter attempted to kiss her and further tear off the clothes she was wearing. The offence was attempted again a hundred yards further on, by which time she had reached Kirk Road when he desisted."

The words "and thereafter attempted to kiss her and further tear off the clothes she was wearing" are stressed for the purpose of comparison with what she said in evidence and with the evidence of Assistant Superintendent Gribble who was the officer who made the entry. On page 6 of the typewritten record in cross-examination the complainant on having read out to her by counsel for the appellant the entry referred to and her attention being attracted to the words we have underlined said: "I am quite sure I never said anything of this kind to the Police. It did not happen. It must have been an invention of whoever wrote that note." Mr. Gribble in his evidence said: "The statement I entered into the Occurrence Book reflects the statement given to me by complainant" and in re-examination he said: "Prior to getting to Police Station complainant did say that her clothes had been torn off. I meant torn off. It did not convey to me that any material was torn". In his judgment the learned<br>magistrate said: "As for the entry in the Occurrence Book about an attempt by the accused to tear off complainant's clothes, complainant said she had no recollection of saying that as it did not take place but further, and more important, I do not have to consider that at all. The accused is not charged with it". In this passage there is obviously contained a serious misdirection and Crown Counsel could not contend that it was not a misdirection. The question was not whether the accused was charged with such an attempt but rather that in what may be taken to be the complaint she made after the assault she made a charge against the appellant which when she came to give evidence she denied having made and described as "an invention of whoever wrote that note". If on this evidence a jury had been directed that they need not consider such a discrepancy it could not be contended successfully that it was not a serious misdirection and similarly in the present case it must be treated as such. It amounts to the exclusion from consideration of most important evidence and it cannot reasonably be said that a misdirection on such an important point may not have occasioned a failure of justice.

To put it in another way must the learned magistrate in reason have come to the same conclusion but for the misdirection? It seems to us that with a correct direction on the point the magistrate might fairly and reasonably have found the appellant not guilty. Because of this misdirection the conviction and sentence must be quashed and the fine if paid is ordered to be refunded.

$\gamma \in \mathcal{M}$

Though not necessary for a decision of the appeal in the view we have taken of the case, we consider we should refer to some other points argued for the appellant. It was submitted that the time of the entry in the Occurrence Book, 2.10 p.m., and the time shown by the Police clock which should be presumed to have been correct until proved to be wrong, are confirmatory of the time the appellant said he met the complainant. Our view is that on this question of time, an important factor in cases of this kind, the evidence is in favour of the appellant. The question of his subsequent conduct is also in his favour. He made no attempt to conceal his identity but on the contrary even though he had a bicycle he remained in the vicinity and admitted his identity immediately he was challenged by Mr. Gribble. This conduct is not what we would have expected of him had he just been involved in a double assault on the complainant. One other point is that the learned magistrate regarded the fact of the complaint made to Mr. Gribble as corroboration. In so holding the magistrate possibly had in mind the provisions of section 157 of the Indian Evidence Act reading: —

"In order to corroborate the testimony of a witness, any further statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."

That section has, however, been the subject of judicial decisions and a reference to Rex v. Silvester Lobo, Criminal Appeal No. 23 of 1927, which is discussed in Rex v. Cherop arap Kinei and Another, 3 E. A. C. A. 124, will show that in cases where corroboration is required evidence such as is referred to in the section will not suffice. As was stated in Lobo's case, a complaint such as is said to have been made in this case was admissible for the purpose of showing the consistency of the story told by the complainant, but as a matter of fact when it is examined it had the effect of showing a serious inconsistency the effect of which we have already dealt with.

The appeal is allowed with the consequences already stated.