[1943] EACA 31

### COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and GRAY, C. J. (Zanzibar).

## REX, Respondent (Original Prosecutor)

# (1) MSYAGA s/o KABWIRI, (2) KAKOMBE s/o FUNFUN,

(3) MSIALA d/o MTENZI, Appellants (Original Accused)

# Criminal Appeals Nos. 70, 71 and 72 of 1943 (Consolidated)

## Appeals from decision of H. M. High Court of Tanganyika

Criminal Law-Criminal Procedure Code, section 265-Extra Judicial Confession—Admissibility of deposition of transferred Magistrate.

The appellants appealed from a conviction of murder. The first appellant Msyaga made an extra judicial confession admitting that he had killed the deceased on the instigation of the second appellant, Kakombe. This confession he retracted at the trial, but the learned trial Judge found that it was made voluntarily. This confession was duly proved at the Preliminary Inquiry by Mr. Lawrence, the Magistrate who had recorded it. He was not called at the trial, which took place at Kigoma, and Crown Counsel applied to have his deposition put in under section 265 (a) on the ground that Mr. Lawrence had been transferred to Bukoba as District Commissioner. Counsel for the defence raised no objection and the application was allowed. The question before the Court of Appeal was whether this deposition ought to have been admitted without evidence being called as to the whereabouts of the absent witness.

Held (17-5-43).—If a witness cannot be found or his attendance cannot be procured without delay or inconvenience, etc., no evidence is necessary, and all that is required is that the Court should be satisfied that the witness cannot be found or cannot be procured without delay, etc. A statement from prosecuting counsel may be sufficient or the Court may ask for something more such as evidence on the point.

The appeals of the first two appellants were dismissed and in the case of the third appellant, the Court substituted a finding of guilty of being an accessory after the fact to murder under Section 203 Penal Code and sentenced her to two years' imprisonment with hard labour.

#### Macken for the Appellants.

#### Windsor-Aubrey, Acting Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The three appellants were tried together with a fourth accused on a joint charge of murder and were convicted, the other man, Mlela, being acquitted on the ground of insufficient evidence.

The appeal raises interesting points of law. The first appellant, Msyaga, made an extra judicial confession admitting that he had killed the deceased on the instigation of the second appellant, Kakombe. This confession he retracted at the trial, but the learned trial Judge found that it was made voluntarily. This confession was duly proved at the Preliminary Inquiry by Mr. Lawrence, the Magistrate who had recorded it. He was not called at the trial, which took place at Kigoma, and Crown Counsel applied to have his deposition put in under section $265$ (a) on the ground that Mr. Lawrence had been transferred to Bukoba as District Commissioner. Counsel for the defence raised no objection and the application was allowed. The question has been raised as to whether this deposition ought to have been admitted without evidence being called as to the whereabouts of the absent witness.

Section 265 of the Criminal Procedure Code reads as follows: —

"Where any person has been committed for trial for any offence the deposition of any person taken before the committing subordinate court may, if the conditions hereinafter set out are satisfied, without further proof be read as evidence on the trial of that person, whether for that offence or for any other offence arising out of the same transaction, or set of circumstances, as that offence.

The conditions hereinbefore referred to are the following: —

(a) The deposition must be the deposition either of a witness whose attendance at the trial is stated to be unnecessary in accordance with the provisions of section 219, or of a witness who cannot be found, or whose attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, or who is proved at the trial by the oath of a credible witness to be absent from the territory or dead or insane, or so ill as not to be able to travel, or to be kept out of the way by means of the procurement of the accused or on his behalf."

Condition (2) contemplates three situations which may arise: $-$

- (i) Where the committing Magistrate considers the attendance of a witness at the trial unnecesary there must be a statement to that effect as laid down in section 219 of the Criminal Procedure Code. - (ii) If the witness cannot be found or his attendance cannot be procured without delay or inconvenience, etc., nothing is said as to how the Court is to satisfy itself that such is the case. - (iii) If the witness is dead or insane, etc. This fact must be proved by the oath of a credible witness.

The legislature have seen fit to provide specifically in case (iii) that evidence be given on oath, but in case (ii) have omitted this requirement. We accordingly are of opinion that in case (ii) no evidence is necessary and all that is required is that the Court should be satisfied that the witness cannot be found or cannot be procured without delay, etc. A statement from prosecuting counsel may be sufficient or the Court may ask for something more such as evidence on the point. In the present case the Court was informed that Mr. Lawrence was in Bukoba and with its own knowledge as to the distance and difficulty of communications between Bukoba and Kigoma was satisfied that the requirements of the section were fully complied with. This seems to us eminently reasonable, especially in view of counsel for defence having offered no objection. The deposition of Mr. Lawrence and the confession of the first appellant were accordingly rightly admitted.

The next point for consideration is whether the evidence at the Preliminary Inquiry of Mlela (originally No. 3 accused who retracted that evidence at the trial and was acquitted) was admissible at all as against the other three accused. It clearly could not be taken into consideration against them under section 30 of the Indian Evidence Act since he merely implicates them without tarring himself with the same brush. It was suggested that it comes under the heading of Evidence of an accused which may be used for what it is worth against a co-accused, but we are satisfied that it cannot fall within that category, firstly because it was not evidence given at the trial and secondly because his co-accused were given no opportunity of cross-examining him. His evidence must accordingly be ignored.

We now consider the case of each appellant individually.

As regards Msyaga (No. 1) his confession is a frank admission that he killed the deceased at the instigation of Kakombe (No. 2). It was retracted so that it is desirable though not necessarily obligatory to find corroboration. (See $Rex$ v.

Sinoya, 6 E. A. C. A. 155). We find that in the evidence of Kipyoka, who found the body in the reeds with a bullet wound, exactly as described by Msyaga in his. $\mu_{\rm{max}} \ll R$ confession. $\mathcal{L} = \mathcal{L}$ $\sim$ $\sim$

As regards Kakombe (No. 2) Msyaga's confession can be taken into consideration against him since Msyaga implicates himself up to the hilt. Msyaga says that Kakombe gave him Sh. 5 and asked him to kill deceased; that he agreed and killed deceased; and that he reported to Kakombe what he had done. Corroboration is to be found in the evidence of Kipyoka, Tausi and Juma. Kipyoka told Kakombe that he had found the body and Kakombe then said: —

"He is dead, but he is not related to you—go on with your business, he will be eaten by hyaenas—because the conspiracy of killing this man came from his own house and it is their affair. The conspiracy to kill this man came from fourth accused's house".

Later when Kipyoka asked Kakombe to report the matter to the headman he refused—and again Kipyoka saw Kakombe offer Sh. 36/50 to Tausi, saying: "I am paying you because I have killed Nyamayala (deceased)". This would no doubt be as compensation to deceased's family, the deceased being Tausi's uncle. Tausi and Juma corroborate this. There is in our opinion ample evidence to support the conviction of Kakombe.

As regards the woman Msiala, third appellant, the witnesses Tausi and Juma both say that Kakombe and she came together and that Kakombe said "We have killed Nyamayala", but Kipyoka's account is that Kakombe said "I have killed Nyamayala". It would we feel be unsafe to treat this as definitely incriminating Msiala. There is a strong case of suspicion against her as being one of the instigators, but not sufficient proof. But having got to know of the killing she associated herself with trying to procure the silence of deceased's family by offering money and she also concealed 'the deceased's blanket. This makes her an accessory after the fact to murder under section 203 of the Penal Code. Under section 173 of the Criminal Procedure Code as now amended it is competent for the Court to find her guilty of this minor offence. (See R. v. Muhoja s/o Manyenye, 9 E. A. C. A. $70)$ .

We accordingly dismiss the appeals of Msyaga and Kakombe and in the case of Msiala substitute a finding of guilty of being an accessory after the fact to murder under section 203 and sentence her to two years' imprisonment with hard labour.

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