[1943] EACA 37

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and Sir Henry Webb, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

ν.

LEONARD alias RWAKWEBA BIN NGIMBWA, Appellant (Original Accused) Criminal Appeal No. 119 of 1943

Appeal from decision of H. M. High Court of Tanganyika

Evidence—Child—Evidence given not upon oath but upon affirmation— Corroboration-Value of previous statements as corroboration-Criminal

Procedure Code (Tanganyika), Section 146—Indian Evidence Act, Section 157.

A witness, a child of eleven years of age, having stated that she "was a Christian and knew that liars would be punished by God, but did not know about the taking of an oath", the Judge decided not to have her sworn, and she accordingly gave evidence upon affirmation. Evidence was also given of statements made by her shortly after the commission of the crime to the same effect as what she said in her evidence.

Held (21-9-43); affirming the decision of the trial Judge.—(1) That while the evidence of a Child given, not upon oath, but upon affirmation, as required by Section 146 of the<br>Criminal Procedure Code (see $R$ . $\nu$ . *Bitashubirwe*, 10 E. A. C. A. 78, does not, strictly<br>speaking, require to be corroborated, yet a Co upon such evidence.

(2) That previous contemporaneous statements by the witness may afford corroboration of his evidence at the trial (*Muthukuraswami v. R.*, 1912 35 M. 397, followed).

(3) Semble: that in the circumstances the witness might have been sworn. Appeal dismissed.

The facts appear sufficiently from the judgment.

Atkinson for the Appellant.

Spurling, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).—It is plain that the most important evidence against the appellant is that of the girl, Felisita, who claimed to have been an actual eye-witness of the murder. The learned trial Judge described her as being about 11 years old and an intelligent little girl, and he recorded that she stood her long examination, cross-examination and reexamination well, and gave her answers confidently and without hesitation, even when she was admitting having told lies to the police. Before she gave her evidence he questioned her, and upon her saying that she was a Christian and knew that liars would be punished by God, but did not know about the taking of an oath, he decided not to have her sworn and she accordingly gave her evidence upon affirmation. In the circumstances we think that the learned Judge was perhaps over-scrupulous and it would, we think, have been proper to have had her sworn. The learned Judge rightly appreciated that even though she was affirmed the Court must be very careful before acting on her evidence and should weigh and scrutinize it closely in the light of all the surrounding circumstances. Felisita said that immediately after seeing the murder committed she ran to the house of one Yohana, and told him what she had seen; this, though denied by Yohana, was confirmed by Silveri and Kishankara, who were there, though the latter said he had not actually heard what Felisita said. With regard to this the learned Judge said: "The evidence of these two witnesses, if believed, is

corroboration of the girl's evidence within the scope of Section 157, Indian Evidence Act, and would provide good reason for believing that Felisita did in fact see what she says she saw, for at that time, before any alarm had been raised, she could hardly have known of the attack on Paskasia unless she had seen it". The value of contemporaneous statements, rendered admissible by Section 157, as corroboration of the testimony of the witness must necessarily vary considerably according to the circumstances of the case and the connexion of the witness with it; they may amount to no more than evidence of consistency, but they may afford corroboration even of the evidence of an accomplice, which, of course, Felisita was not. In the case of Muthukuraswami v. R. (1912, 35 M. 397) Benson, J., said, at p. 427: "The former statement of an accomplice is. therefore, legally admissible to corroborate his testimony at the trial, and the weight to be attached to it, or, in other words, how far it does really corroborate the evidence given at the trial must vary with the facts of each case... In the great majority of cases it would, no doubt, be found to be merely a repetition of tainted evidence affording no ground for believing it to be true, and, therefore, adding nothing whatever to its value. On the other hand, if there was evidence, or even a suggestion, put forward by the defence that the evidence given by the witness was the result of recent influences brought to bear upon him, it would be most important to be able to prove that the witness had made statements to the same effect as his evidence at the trial long before the influences relied on by the defence had been brought to bear upon him". (See also the judgments of Wallis, J., at p. 441, Miller, J., at p. 453, and Abdur Rahim; J., at p. 486.) In the circumstances of the present case, in which there was undoubtedly a suggestion of influence having been brought to bear upon the witness, the evidence of Silveri and Kishankara threw a most valuable light upon the vital question whether the girl in her evidence described what she had seen or was telling a story which she had been taught. Asumani bin Mkono, an inhabitant of the village where the murder was committed, who had been directed by the sub-chief to investigate the crime, and Police Constable Leosio, to whom the Police investigation seems to have been largely committed, both admitted that they had brought considerable pressure-separation from her family and repeated and persistent questioning-to bear on the little girl in order to induce her to tell what she knew. The learned Judge has commented strongly upon the impropriety of the methods employed by these two witnesses, and we desire to associate ourselves with his observations. Mr. Atkinson has argued that the statements made by Felisita to the Police are unreliable both because of the manner in which they were obtained and because they are not consistent with each other or with her evidence at the trial. It is in this connexion that the evidence of Silveri and Kishankara and of Felisita's mother, who also deposed to a contemporaneous statement made to her, became so important. If it is believed it disposes, at all events, of the possible suggestion that Felisita's account of what she saw is something that the Police put into her mouth, for what she ultimately said to the Police and at the trial was to the same effect as what she had said! immediately after the crime was committed.

It is true that there are variances between her different statements and her evidence. In her first statement to the Police, made on the 5th December (six days after the murder), she said that she had not gone to Paskasia's house at all; it was only on the 7th that she told Sub-Inspector Kisuru how she had gone to draw water at Paskasia's and had there seen the appellant striking Paskasia. Naturally Felisita was cross-examined about this and she gave what appears to us, as it appeared to the learned Judge, the probable and reasonable explanation that she was at first afraid to tell what she had seen because Yohana had threatened her that if she told misfortune would fail upon her family. Here, again; the evidence of Silveri bore her out.

With regard to the discrepancies as to details in her different statements to the Police and in her evidence they are only such as are to be expected in the case of a person who is unlikely to be meticulously accurate in the observation. of details or in describing her own movements. Once it is believed that she was not inventing when she said that she had seen the appellant actually striking Paskasia with some weapon, and thereupon ran away, as she would be likely to do, it becomes of little importance whether she really observed accurately the precise weapon that he used, or how Paskasia was dressed, or remembered, and meant to convey, that she had actually accompanied her mother to the scene when the drum was beaten.

The obvious danger to be guarded against in acting upon the evidence of young children without some corroboration is that they may have been taught to tell a story, but once it is accepted, as the learned Judge did accept, that Felisita had told the story before she could have been taught, the risk of the appellant having been wrongly blamed by her becomes almost negligible, especially when, as was the position her, she knew him well and the killing took place in broad. daylight.

Another point that has naturally been pressed on behalf of the appellant is the undoubted fact that when the alarm was given and the villagers assembled. neither Felisita's mother nor Silveri said a word about what Felisita had told them. When asked about this Silveri gave the not unreasonable explanation that he was afraid Felisita might deny the story and he would be discredited, while her mother said that she was reluctant to tell such a bad thing. It is well known how unwilling are people, even people far more advanced than the inhabitants of an African village, to mix themselves up in an unpleasant affair which does not directly concern them, and here, as the learned Judge pointed out, there was the additional reason that the person whom they would be accusing was a member of the Chief's family.

Felisita's story received further corroboration from the evidence of the witnesses who saw the appellant, immediately before the alarm was given, coming from the direction of Paskasi's house carrying a bill-hook in his hand, which the appellant denied, and from his own subsequent conduct. We are accordingly of opinion that the learned Judge was fully justified in accepting and acting upon the evidence of Felisita. He weighted and tested her evidence most carefully and came to the conclusion that she was intelligent and that her story as given in Court and subjected to searching cross-examination was true. She gave that evidence on affirmation and it was proved to the satisfaction of the Judge that she had given substantially the same account of how she saw the appellant killing. the deceased immediately after the killing and before the body was found or any alarm raised. There were pieces of extrinsic evidence which supported her evidence and tended to show that when implicating the appellant she was telling. the truth.

The appeal is dismissed.

\* Case reported by Sir Henry Webb, C. J.