[1945] EACA 18

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir John Gray, C. J. (Zanzibar), Manning, J. (Uganda), and Pearson, J. $(Uganda)$

## REX. Respondent (Original Prosecutor)

# SAID s/o ABDULLA, alias SAIDI s/o MANGOMBE, Appellant (Original Accused)

#### Criminal Appeal No. 76 of 1945

## (Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law—Murder—Witnesses called at the Preliminary Inquiry not called at trial—Duty of Court to record evidence in full--Dying declaration—Corroboration.

The appellant was convicted of murder on the dying declaration of the deceased, coupled with strong circumstantial evidence that the deceased could not have been mistaken as to the identity of his assailant. Only six of the twenty-seven witnesses who gave evidence at the preliminary inquiry were called at the trial and

number of lacunæ in the prosecution case as presented at the trial.

The appellant appealed.

Held $(24-4-45)$ .—(1) Notwithstanding that the omission to call at the trial certain witnesses. who were called at the preliminary inquiry resulted in a number of lacuna in the case for the Crown, there was ample evidence to support the conviction.

the depositions of three others were read with the result that there were a

$(2)$ It is an elementary rule that a witness cannot be allowed to say, or to be recorded as saying, that in regard to a certain matter his evidence is identical with that of another person in another court. Even if two witnesses purport to give identical evidence it is the duty of the Court to record the evidence of each witness in full.

(3) It is unsafe to base a conviction solely on the dying declaration of a deceased<br>person owing to the possibility of mistake on his part in the identification of his<br>assailant but other evidence, including circumstantial

Appeal dismissed.

Rex v. Mwinyibegu s/o Mwinyimviale (1935) 2 E. A. C. A. 70, Rex v. Muyovya bin Msuma (1939) 6 E. A. C. A. 128, Rex v. Eligu (1943) 10 E. A. C. A. 90 referred to.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—In this case no less than twenty-seven witnesses were called by the prosecution at the preliminary inquiry, which appears to have been taken by the committing magistrate with considerable care. Only six of those witnesses were called at the trial and the depositions of three others were read. Whilst we are far from saying that all the witnesses called in the lower court ought to have been called at the trial, it is clear that the omission to call certain of those witnesses has resulted in a number of lacunæ in the case for the Crown as presented at the trial. It is, of course, impossible for us to supply those lacunæ by reference to the depositions in the committing court,

The first witness called at the trial was a Sub-inspector of Police. He deposed to a visit to the locus in quo and to seeing there the body of the deceased. According to the record, he then proceeded to say "the body had the injuries described by Stanley Theis in the court below". It would appear to us to be a somewhat elementary rule that a witness cannot be allowed to say, or to be recorded as saying, that in regard to a certain matter his evidence is the same as that of another person who gave evidence in another court. It is very rarely indeed that the evidence of two witnesses deposing to the same fact is ipsissimis verbis the same. Even if two witnesses were to give their evidence in identically the same words, this would not relieve the court of its duty to record the evidence of each witness in full. In the present case this is not the only objection to this mode of recording evidence. Dr. Theis was not called as a witness at the trial and his deposition was not put in evidence. Consequently, we have not got before us his deposition of those injuries and his opinion as to the manner of infliction of those injuries and as to the cause of death. It seems hardly necessary to point out that in a number of cases the lack of such evidence might prove fatal to a conviction.

The Sub-inspector also deposed to the fact that two persons found certain important exhibits somewhere in the vicinity of where the deceased's body was found. These persons gave evidence at the preliminary inquiry, but they were not called at the trial and their depositions were not read. Notwithstanding the lacunæ in the prosecution evidence in regard to certain matters we are none the less of the opinion that there remains ample evidence to support this conviction. Asha d/o Mohamed saw the deceased being pursued and assaulted by a man with a panga. The witness has bad eyesight and was unable to recognize the assailant, who ran away. The deceased staggered on towards Asha's house and fell down. She asked him who had done this and the deceased named the accused as his assailant. As this court has pointed out on several occasions, it is generally speaking unsafe to base a conviction solely on the dying declaration of a deceased person, owing to the possibility of a mistake on his part in the identification of his assailant (Rex v. Mwinyibegu (1935), 2 E. A. C. A. 70; Rex v. Muyovya (1939), 6 E. A. C. A. 128), but other evidence, including circumstantial evidence, may go to show that the deceased could not have been mistaken in such identification (Rex v. Eligu (1943), 10 E. A. C. A. 90).

Here, there is strong circumstantial evidence to show that the deceased could not have been mistaken as to the identity of his assailant. Earlier in the day the deceased had seen a bedsheet hanging up to dry at the house where the appellant lived. He claimed the sheet as his property and accused the appellant of having stolen it. The appellant asserted that he had bought it at a store at Amboni. After some disputing it was agreed that the two should go to Amboni to verify the appellant's statement. Several witnesses saw them set off together in the direction of the place where the deceased's body was later found. The appellant was carrying a bottle and a panga in addition to the bedsheet. He was also wearing a white cap. A little later the witness Asha came and told other witnesses what she had seen. A little later still the appellant came to where Wakili and several other witnesses were. He no longer had the cap, bottle or bedsheet. Wakili says "He was wet with sweat. His eyes were red". The appellant told Wakili "I am in a hurry. I am going to Amboni." After borrowing another bottle, he set off for Amboni. All this evidence, coupled with the deceased's dying statement to Asha, amply supports this conviction, if unrebutted by other evidence. The appellant's answer to it was an attempt to prove an alibi, but the one witness called by him at the trial failed to establish that alibi.

This appeal is accordingly dismissed,