[1946] EACA 50

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and SIR JOHN GRAY, C. J. (Zanzibar)

**REX.** Respondent (Original Prosecutor)

(1) FULABHAI JETHABHAI PATEL, (2) RAMANLAL BHIKHABAI PATEL, Appellants (Original Accused)

Criminal Appeals Nos. 210 and 211 of 1946

(Appeals from the decision of H. M. High Court of Tanganyika)

Criminal Law—Demanding money with menaces and theft—Ss. 265 and 292 P. C. (T. T.)—Irregularities of procedure—Ss. 248, 270 and 346 C. P. C. (T. T.)

-Plea of guilty-Retraction of plea after sentence-Sentence-Practice.

F. and R. were jointly charged on two counts with demanding money with menaces with intent to steal and on one count with theft. Both accused pleaded not guilty and the trial proceeded with two sets of assessors—two assessors for each accused. During the trial F. pleaded guilty to the charge, whereupon he was removed from the dock and his two assessors were discharged and the trial of R. proceeded.

The evidence against R, was that he was present when F, made the demands and that he was introduced to the complainants as a member of the C. I. D., a false statement which he made no attempt to contradict. There was also the evidence that R. was present when Sh. 850 was paid over to F. and that he later personally received Sh. 140 from one of the complainants out of which he handed back Sh. 5 to that complainant to "bring food and give it to the dogs". There was evidence also that he had played a prominent part in making the second demand for money with menaces.

Both F. and R. were convicted and sentenced. They appealed.

*Held* $(13-11-46)$ .—(1) That there is nothing in the C. P. C. to sanction a procedure whereby at a single trial one set of assessors is selected for the purpose of giving their opinions as to the one accused and another set of assessors as to a co-accused.

(2) That the discharge of two assessors during the trial constituted an irregularity which, as it did not occasion a miscarriage of justice, was curable under S. 346 C. P. C.

(3) That when once sentence has been passed upon a person who has unequivocally pleaded guilty he cannot afterwards be allowed to retract that plea unless he pleaded guilty to a charge which in fact disclosed no offence.

(4) That the evidence showed that R, was particeps criminis in all the offences.

(5) That the practice in cases where a person has been charged with and convicted on two counts involving the same transaction is to direct that the sentences should run concurrently.

Appeal dismissed. Sentences on R. varied.

Cases referred to: Ramakrishna Reddie v. Emperor 26 Mad. 598; Subrahmanïa Ayer Cases Feterred to: Ramakrishna Readie v. Emperor 26 Mad. 598; Subrahmania Ayer v. Emperor 25 Mad. 61; Rex v. Ndigipe 6 E. A. C. A. 118; Kapoor Chand v. Suraj Prasa v. 55 All. 301; Rex v. Katambo 5 E. A. C. A. 141; Rex v. Abyasali Kabula 3 E. A. C. A. 42; Rex v. Sowedi Mukasa Cr. App. 182/45.

## Appellants absent, unrepresented.

Haughey, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—These appeals have been consolidated. Both appellants were jointly tried on two counts charging them under section 292 of the Tanganyika Penal Code with demanding money with menaces and with intent to steal from Tulsidas Dewakaran Shangwi and Nazarali Merali respectively, and one under section 265 of the Code of stealing a sum of Sh. 985 from the first of the above-named complainants.

On being called upon to plead the second appellant categorically pleaded not guilty. The first appellant-in answer apparently to all three counts-said "I admit the matter was discussed in my house up to that point in my presence; but I took' no actual part in the demanding of money or stealing". The learned trial Judge has recorded this plea as being one of "guilty of being an accessory before the fact. Not guilty of the actual committing". It should be observed that the words used by the appellant did not amount to a statement by the first appellant that he unequivocally admitted facts which made him an accessory before the fact in English law or a person "deemed to have taken part in committing the offence" under section 22 of the Penal Code, which was the law under which the appellant was being tried.

After recording the pleas of the accused, the record states that the "Court calls the assessors and decides to call two assessors for each of the accused and in each (? case) I will call men to whom the particular accused has not objected". From this proceding it must be presumed that the learned trial Judge thereafter treated the first appellant's plea as one of not guilty to the information as laid.

After three prosecution witnesses had given evidence, the record states that "at this stage the first accused pleads guilty as charged and is removed from the dock and his two assessors are discharged". The trial of the second appellant then proceeded with the aid of the remaining two assessors.

Such a proceeding was distinctly unusual and in our opinion unwarranted by anything contained in the Criminal Procedure Code. Section 248 of that Code provides that "all trials before the High Court shall be with the aid of assessors, the number of whom shall be two or more as the court thinks fit". There no doubt may be certain cases in which two or more persons belonging to different races or communities are tried together and in which it is desirable to call more than two assessors, but, when this is done, each one of the assessors is required to give his opinion as to the guilt or innocence of each of the accused. There is nothing in the Code to sanction a procedure whereby at a single trial one set of assessors give their opinions as to one accused and another set of assessors give their opinion as to a co-accused.

We have therefore to consider what was the effect upon the proceedings subsequent to the discharge of these two assessors in the middle of the trial. As section 270 (1) of the Criminal Procedure Code shows, the only circumstances in which a trial can proceed with a less number of assessors than those originally selected by the Court is when an assessor "is from any sufficient cause prevented" from attending throughout the trial, or absents himself, and it is not practicable immediately to enforce his attendance". Neither set of circumstances arose in the present case.

Then again, section 270 (2) of the Code enacts that "if two or more of the assessors are prevented from attending, or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors".

Here, two assessors were discharged and ceased to take any further part in the proceedings. The question obviously arises as to what in the circumstances was the effect of their discharge upon the subsequent proceedings. In *Ramkrishna* Reddi v. Emperor (1903) 26 Mad. 598 the Madras High Court held that the

taking of the opinion of two only out of a number of assessors made the trial a nullity and was not an "omission" or an "irregularity" such as may be curable under the section of the Indian Code of Criminal Procedure which corresponds to section 346 of the Tanganyika Criminal Procedure Code. That decision was of course based upon the then very recent decision of the Privy Council in the well known case of Subrahmania Ayer (1901) 25 Mad. 61 but, as has been pointed out by this Court in its judgment in R. v. Ngidipe (1939) 6 E. A. C. A. 118, which reviews the authorities on the subject at length, later decisions have explained the meaning of the Privy Council's decision and have tended to render the effect of that ruling less sweeping than it was at first held to be. In the words of the Full Bench of the Allahabad High Court in Kapoor Chand $v$ . Suraj Prasad 55 All. 301, the sole criterion given by the section of the Indian Code of Criminal Procedure corresponding to section 346 of the Tanganyika Code "is whether the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but, if in spite of a total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order, which is just and correct, simply because the procedure adopted was wrong".

From a perusal of section 248 of Criminal Procedure Code it is clear that the intention of the legislature that a trial with the aid of assessors shall, except in the special circumstances set in section 270 (1), be with the aid throughout the trial of a minimum of two assessors. So long as the number of assessors does not fall below this minimum there can in our opinion be no question of a mistrial. If, for example, for some reason six assessors were selected for the joint trial of three persons and two out of such six assessors were either discharged or absented themselves during the course of the trial and the effect of section 270 (2) were to render all subsequent proceedings a nullity, then one would be faced with the anomalous position of having to hold that the continued trial with the aid of double the minimum number of assessors prescribed by law was in the circumstances a nullity. In our view a trial in such circumstances is undoubtedly an irregularity but at the same time an irregularity which may be curable under section 346 of the Criminal Procedure Code. Here, the irregularity has in fact occasioned no miscarriage of justice. The trial of the second appellant continued with the aid of two assessors, to whom he had raised no objection, and both assessors delivered their opinions at the end of the case.

Turning to the grounds of appeal filed by the appellants, the first appellant alleges that "the facts of the case and evidence do not show that any offence has been committed under section 292 and section 265 of the Penal Code. No threat, menace or force has been used and the charge under these two sections is not proper. The offence would amount to cheating by deception which is a minor offence or at the most the accused appellant should have been charged with the offence under section 290 (2) and committed (? convicted) and sentenced accordingly".

It is perhaps hardly necessary to state that the minor offence to which the appellant alludes are each of them punishable with a less term of imprisonment than that to which the appellant has been sentenced. It is also of course clear that what in effect the appellant is seeking to do is to re-open his case, but in our opinion in the circumstances disclosed by the record he cannot be allowed to do this.

This is clearly not a case in which an accused person has been convicted and sentenced upon an ambiguous plea, which has been treated erroneously as an unequivocal plea of guilty. In our opinion the record discloses the fact that the appellant unequivocally pleaded guilty. He was arraigned upon two

counts, which alleged that he "with menaces demanded" certain sums of money "with intent to steal", and a third count which alleged that he stole Sh. 985. The record shows that these three counts were read, interpreted and explained to him. He was then required to plead thereto and said "I admit the matter was discussed in my house up to that point; but I took no actual part in the demanding of money or stealing". As already said, this reply amounted to a plea of not guilty. It was also an answer which plainly showed that the appellant fully understood the nature of the offences wherewith he was charged. When, therefore, at the close of his cross-examination of the third prosecution witness, it is recorded that he "pleads guilty as charged", he was clearly admitting unequivocally that he had committed the offences as set out in the information. In those circumstances we cannot go into the question as to whether the depositions or the evidence supported all or any of the three counts of the information. As said by Hawkins J. in R. v. Riley (1896) 1 Q. B. 309 at 318, when a person unequivocally pleads guilty to a count in an indictment or information, he does not thereby admit the truth of the facts stated in the depositions; "he admits simply that he is guilty of the offence as charged in the indictment and nothing more".

Furthermore, as said by the Court for Crown Cases Reserved in $R$ . $v$ . Sell (1840) 9 C. & P. 346 and as re-affirmed by the same Court in R. v. Plummer (1902) 2 K. B. 339, when once sentence has been passed upon a person who has unequivocally pleaded guilty, he cannot afterwards be allowed to retract that plea. Here, the appellant's appeal against conviction can only be entertained by allowing him to retract that plea and, as the above authorities show, he cannot be allowed to do this.

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There is undoubtedly authority for the proposition that the conviction of a person can be set aside on the ground that he has pleaded guilty to a count which in actual fact discloses no offence (R. v. Brown) (1890) 24 Q. B. D. 357, $R.$ v. Riley (supra), but we can find no authority for the proposition that a Court can set aside or alter the conviction of a person, who has pleaded guilty, on the ground that the depositions do not disclose the offence set out in the information. In fact, the already mentioned case of $R$ . $v$ . Riley in our opinion shows that such a proposition is quite unsustainable. By pleading guilty the appellant admitted that he demanded money with menaces and with intent to steal and also that he stole. He cannot now be heard to say that in actual fact he committed some different offence and his appeal against conviction is accordingly dismissed.

Although we cannot reopen the case with a view to an inquiry as to whether the evidence was sufficient to support a conviction of the appellant on each of the three counts, that evidence has to be considered as against the second appellant who pleaded not guilty and it is not out of place to say at this stage that that evidence does support findings that money was demanded from each of the two prosecutors with menaces and with intent to steal and that money was stolen from one of those prosecutors.

The evidence to support a charge of demanding money or other valuable thing with menaces contrary to section 292 of the Code must show that—

- (1) the accused demanded a valuable thing; - (2) he demanded it by menaces or by force; - (3) he demanded it with intent to steal.

As said by the Court for Crown Cases Reserved in R. v. Walton (1863) 169 E. R. at p. 1403 "a demand of money with intent to steal, if successful, must amount to stealing. It is impossible to imagine a demand for money with intent to steal, and the money obtained on that demand and no stealing".

As said in $R$ . v. Walton (supra), the question as to whether the accused person's act amounted to a demand is purely one of fact, and as said by the Court of Criminal Appeal in R. v. Studer (1915) 11 Cr. App. R. 307, "it is not necessary that the language should be explicit; it may be in the language of a request". Surrounding circumstances may show that, whatever the language employed, the words in fact amounted to a demand.

With regard to the question whether or not the demand was made with menaces, in dealing with section 45 of the Larceny Act, 1861, which in wording closely resembles section 292 of the Tanganyika Penal Code, the Court of Criminal Appeal has said in R. v. Boyle (1914) 10 Cr. App. R. at p. 191: —

"We think it would be unwise to attempt to lay down any exhaustive definition of the words of the section. The degree of fear or alarm which a threat may be calculated to produce upon the mind of the person on whom it is intended to operate may vary in different cases and different circumstances. A threat to injure a man's property may be more serious to him and have greater effect upon his mind than a threat of physical violence. When there is evidence of such a threat as is calculated to operate upon the mind of a person of ordinarily firm mind, and the jury have been properly directed, it is for them to determine whether the conduct of the accused has brought them within the section, and whether in the particular case the 'menace' is established."

The best evidence of an intent to steal is of course evidence that the accused person committed the offence of stealing punishable under section 265 of the Penal Code, but the prosecution may give in evidence any other facts from which such an intent may be reasonably presumed. In some cases the actual words used will plainly show such intent. Section 258 (1) of the Penal Code defines stealing as the taking of anything capable of being stolen "fraudulently" and without claim of right". Section 258 (2) of the Code declares that a taking will be deemed to be fraudulent if done with "an intent permanently to deprive<br>the general or special owner of the thing of it". As said by Kelly C. B. in $R \cdot v$ . McGarth (1869) 1 C. C. R. 205 at p. 209, the taking without claim of right of money against the will of the owner by means of intimidation is clearly obtaining the property of another with the fraudulent intent to deprive him of such property. According to English Law such an offence would be larceny and equally clearly under the Penal Code it amounts to stealing.

Turning to the evidence in the present case, the evidence as to the menaces referred to in the first count is that of Tulsidas Dewakaran Shangwi who says "No. 1 (i.e. the first appellant) told me there were diamonds put in my house by the police. No. 2 was in the police but would sell out for Sh. 5,000". After some bargaining he persuaded the appellants to reduce this sum to Sh. 2,000, which he proceeded to try to raise. Next day he placed Sh. 850 on the table in front of the two appellants and later he brought another sum of Sh. 140, but there is no evidence on the record to show that the first appellant was present when he brought this second sum. The witness is recorded as saying "I tried to raise more money. I made up Sh. 990. No. 2 accused gave me Sh. 5 back as a tentative advance to buy food and give it to the dogs".

The prosecution evidence as to the second count of stealing has been dealt with in dealing with the first count. The evidence as to menaces on the third count is that of Nazarali Merali, who says "Fulabhai (i.e. first appellant) said diamonds were placed in my shop; if you want to escape give me Sh. 20,000 and we'll show you where you are and save you. Fulabhai introduced second accused as from the C. I. D. They agreed to take Sh. 10,000 as I said Sh. 20,000 was too much. I acked for two hours to collect until 7.30 p.m. . . . (Crossexamined by second appellant) No. 1 told me the police were coming and I must hurry".

Under section 3 of the Diamond Industry Protection Ordinance, 1928, the possession of diamonds without lawful excuse is a criminal offence punishable with ten years' imprisonment and a fine of Sh. 20,000.

As already said, each case of this description must be judged upon its own. facts, but there are a number of points of resemblance between the present case and that of $R$ , $\nu$ . Robinson (1864) 169 E. R. 1482. In that case a police constable told the prosecutor that he was about to arrest him on a charge of doing an act, which did not in law amount to a criminal offence, and added that if the prosecutor gave him five shillings, he "might go about his business". The prosecutor then paid over Sh. $4/6$ . On a case being stated, the Court for Crown Cases Reserved held that the evidence disclosed a demand for money with menaces and with intent to steal as well as the offence of stealing.

Here each of the two prosecutors was given to understand that, unless he paid over certain sums of money, he would be prosecuted on a charge of a very serious criminal offence, which was to be bolstered up by fabricated evidence. In each case there was clearly evidence not only of a "demand" but also of a "menace". Equally clearly, in each case that demand was made with intent to steal. The money, which was paid over by the prosecutor, was paid by him against his will and under the influence of the menace and it is equally clear that, if money had been extracted from the other prosecutor, it would similarly have been obtained against his will. That evidence clearly shows that the first appellant was guilty of the offences wherewith he was charged. It remains to be considered whether the evidence discloses that the second appellant is a person who by reason of the provisions of section 22 of the Penal Code must be deemed to have committed all or any of the abovementioned offences.

The second appellant has compiled a memorandum of appeal consisting of thirteen paragraphs. Paragraph 1 reads as follows: -

"Mr. Hallier admitted in his evidence that on 12-4-46 he did call me at the charge office, but he did not disclose why he called me. He called me and gave me some special information regarding some private matter which made me go to Kahama to assist the police at Mr. Hallier's request. I will prove this in the Appeal Court personally by producing an exhibit as a proof which was given to me by Mr. Hallier on 12-7-46 (? 12-4-46)."

In the first place, it is hardly necessary to say that the production of fresh evidence at the hearing of an appeal is not a matter of right. It is granted by the Appeal Court only in exceptional circumstances. When an applicant seeks to call additional evidence he must disclose not only the name of the intended witness but also the nature of his evidence. (R. v. Jefferson (1908) 1 Cr. App. R. 95 and other cases.) Here, the nature of the exhibit is not disclosed. Furthermore, as the Court of Criminal Appeal has repeatedly said, permission to call fresh evidence is not given unless some sufficient reason is given why it was not called at the trial (R. Martin (1908) 1 Cr. App. R. 33 and other cases).

Here, Mr. Hallier, who is a Chief Inspector of Police, was called at the trial and the exhibit, which it is now desired to produce, could and should have been shown to him so that he could offer any explanation he might have in regard thereto, Furthermore, Mr. Hallier's evidence was not to the effect set out in the memorandum of appeal. The second appellant cross-examined Mr. Hallier and the following is the record of that cross-examination: $-$

"I saw you once before.

Q. Where?—A. At the police station. You came to report on the 12th April.

Q. What did I report?—A. Your release from prison.

I had no reason to suspect either of you of dealing with real uncut diamonds."

In view of this evidence we are satisfied that this is not a case in which additional evidence should be allowed to be produced.

The twelfth ground of appeal may be suitably dealt with next. It states "that" there were twenty-three defence witnesses, but none of them was I allowed to call to give their evidence, nor was I allowed to cross-examine the prosecution witnesses and nor my evidence was taken fully in the High Court".

The actual facts were that ten witnesses were summoned at the request of the first appellant and thirteen at the request of the second appellant. According to the record, when the first appellant pleaded guilty, his ten witnesses were dismissed and the second accused reduced his witnesses to four. Thereafter he called two witnesses and, as we are informed by Counsel for the Crown, after their evidence had been taken, the second appellant then decided not to call the remaining two. With regard to the allegation that the appellant was not allowed to cross-examine the prosecution witnesses, the records shows that he cross-examined five out of the seven witnesses who were called by the prosecution at the trial.

With regard to the allegation that the appellant's evidence was not taken fully, the facts are that he elected to make an unsworn statement. The record of that statement occupies about eighteen lines of typescript. As recorded, it is not a very coherent statement, but the line of the appellant's defence is clear. He seeks to throw the whole responsibility on his co-accused, whom he alleges had secured the wrongful conviction of at least one person for unlawful possession of diamonds.

The remaining grounds of appeal may be taken together. Their general purport is summed up in the thirteenth ground of appeal, which says "that it will be seen from the various evidence of prosecution witnesses that it was accused No. 1 F. J. Patel who did all the talking, that he demanded money and that I had nothing to do in this. Accused No. 1 F. J. Patel took the advantage of my presence in Kahama as I was his guest and to suit his purpose he involved my name in his doings". The remaining paragraphs of the memorandum purport to summarize the evidence, which is alleged to support the allegation set out in the thirteenth ground of appeal.

In those other grounds of appeal the appellant refers to the evidence of certain of the twenty-six witnesses who gave evidence at the preliminary inquiry but who were not called by the prosecution at the trial. As said by this Court in R. v. Katambo (1938) 5 E. A. C. A. 141 it is the duty of the prosecution to ensure that all witnesses, who gave evidence at the preliminary inquiry, attend the trial court so that, if not called by the prosecution, they may be available if the defence wishes to call them. As explained in $R$ . v. Abyasali Kabula (1935) 3 E. A. C. A. 42, in cases which the accused person is not legally represented, all important witnesses for the prosecution should be called at the trial. An accused person, who is not legally represented, cannot be expected to understand

that it is for him to call and question such witnesses. Here, there is nothing on the record to show that it was explained to the appellant that he had the right to call and question the witnesses, to whom he has referred in his memorandum of appeal.

But in our view this apparent omission cannot possibly be regarded as having occasioned a failure of justice. What this appellant is seeking to do is to place the whole responsibility for all three offences upon his co-accused. If the appellant had been allowed to call and examine the prosecution witnesses, who were not called at the trial, and if the evidence of those witnesses had been substantially what this appellant alleges it would have been, it would undoubtedly have shown that the other appellant played a very conspicuous part in the material transactions, but it would in no way have rebutted the other evidence which showed that the second appellant himself was *particeps criminis* in respect of each offence. With respect to the two charges of demanding money with menaces, the evidence is that this appellant was present when his coaccused made the demands and that he was introduced to each prosecutor as a member of the C. I. D., a false statement which the appellant made no attempt to contradict. According to one prosecutor, Tulsidas, the second appellant was present when the sum of Sh. 850 was paid over and also later received personally the second sum of Sh. 140 and handed back Sh. 5 thereof to the prosecutor "to buy food and give it to the dogs". It was also this appellant who searched the house of Tulsidas at Busangi and produced stones which he alleged were diamonds. The evidence of the witnesses, who overheard the conversation between the second prosecutor, Nazarali Merali, and the two appellants amply corroborates Nazarali's evidence that the second appellant played a very prominent part in making the second demand for money with menaces. His appeal against conviction is accordingly dismissed.

With regard to sentence, as explained by this Court, in R. v. Sowedi Mukasa (Cr. App. 182/45), the practice in cases where a person has been charged with and convicted on two counts involving the same transaction is to direct that the sentences shall run concurrently.

We accordingly alter the sentences on the second appellant so as to run as follows: —

(1) the sentences in respect of the first and second counts will run concurrently, and

(2) the sentence on the third count will run consecutively to those on the first and second counts.

The sentences passed on the first appellant will stand.