[1939] EACA 97

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya); Whitley, C. J. (Uganda); and Sir Llewellyn Dalton, C. J. (Tanganyika)

> REX, Respondent (Original Prosecutor)

## MOHAMED SHAH s/o LAL SHAH, Appellant (Original Accused) Cr. App. No. 210/1938

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law-Murder-Evidence-Proof of innocent explanation-Discrepancies in evidence—Evidence of Asiatics and Natives— Assessors' opinions—Desirability of sketch plan—Indian Evidence Act, section 114.

In convicting the appellant of the murder of his uncle, who died from multiple injuries inflicted in a brutal assault upon him with a sword the trial Judge said that he accepted the evidence of C., B., K. and A. who were witnesses for the Crown.

C. was an eye-witness who deposed to the actual killing of the deceased by the appellant. B., K. and A. deposed to having seen the appellant standing over the deceased sword in hand immediately after the assault. Appellant's defence was that he arrived at the scene after the deceased had been assaulted and the assailant had disappeared and that he then went up to the deceased and picked up the sword. The Defence sought to discredit the evidence of C. because if C.'s estimate of distances and if his statement as to his own actions and those of the appellant were strictly accurate then the evidence of B., K. and A. could not be true and vice versa. The details of the dis-. crepancies appear from the judgment reported.

The three assessors expressed the opinion that the appellant should be acquitted and one of them referred in detail to the said discrepancies.

Held (9-2-39).—That generally speaking in the case of African and Asiatic witnesses it is not fair or desirable to tie them down too closely to estimates of time and distance, and that on a careful review of the whole of the evidence the discrepancies relied upon by the defence were apparent rather than real.

The appellant's defence being that he took no part in the killing and only came on the scene after his uncle had been attacked and was lying wounded it would be reasonable to expect that he would take the earliest opportunity of reporting the matter, and the fact that, on his own admission, he made no report when he went to the police station afforded good ground for doubting the truth of his story.

Section 114 (Illustration G) of the Indian Evidence Act).

The judgment also contains observations as to the desirability, in cases in which places, roads, times and distances may be of importance, of at once preparing a sketch plan to record immediately and as accurately as possible what the investigating officer observes on the spot and is shown by witnesses and to enable the Court more easily to form a mental picture of the scene and of the material points.

Appeal dismissed.

## Figgis, K. C., and Burke for the appellant.

## Dennison, Crown Counsel, for the Crown.

JUDGMENT (delivered by Whitley, C. J.).—This is a case of considerable difficulty and we feel ourselves fortunate in that the appeal has been argued with such care and ability by Mr. Figgis that we have had forcibly brought home to us every point which could reasonably be urged on behalf of the appellant.

The facts are fully set out in the judgment of the learned trial Judge and we do not propose to recapitulate them. It will suffice if we summarize them very shortly. The deceased was a "Mistry" in the employ of the Railway Department at Nairobi. The accused, considerably his junior, was formerly also an employee. He was apparently introduced into that employment by the deceased. Recently he was dismissed and the evidence of Pir Bux suggests that he regarded the deceased as being responsible for his dismissal. On the 11th August, 1938, at about 6 p.m. the deceased left work as usual on his bicycle. The route to his home was along Government Road, Whitehouse Road and Race Course Road. This would take him past the Railway Godowns in Whitehouse Road. The principal eye-witness for the Crown was an African dresser at the hospital named Charles. He stated that he was coming from Race Course Road into Whitehouse Road wheeling his bicycle when he saw two persons walking towards him along Whitehouse Road from the direction of Government Road. Deceased was the one in front and accused was following. Accused had a sword in his hand and Charles saw him attack the deceased with this sword. Accused left the deceased lying on the ground and Charles saw him go to the junction of Victoria Street where he stopped and boarded a brown motor car. A European witness, Mr. Jones, confirmed that accused boarded his car at that point, carrying a sword, and asked to be taken to the Police Station. On the way to the station the accused muttered something incoherent about "a quarrel" and "400 shillings". We shall discuss later what happened at the Police Station. Reverting to the scene of the attack, Charles described how he found the deceased bleeding from terrible cuts. He attended to him and later took him to hospital where he died. We will deal with certain details of this witness' evidence when we come to consider the criticisms made by Mr. Figgis. Three other important witnesses were Balbirdass, Kamotho and Abdullah. Balbirdass was returning from work on his bicycle when he met Abdullah walking. They proceeded together until, in Government Road, they met a man called Siti Ram who gave them certain information in consequence of which Balbirdass hastened on his bicycle down Whitehouse Road to the spot where he saw deceased on the ground with the accused standing by him with a sword held up in his hand. Abdullah followed on foot running and saw the accused walking towards Government Road with a sword in his hand. Kamotho, another Railway workman, also deposed to having seen the accused standing by the wounded man with a sword in his hand.

The accused gave evidence to the effect that he found the deceased lying wounded with the sword by his side and that he told him that "somebody had hit him for 400/-". He said that he then went to the Police Station to report the matter and went there in Mr. Jones'

$\overline{a}$

$\overline{a}$

$\mathbf{1}^{\mathbf{1}}$

car. He did not say in his evidence that he did in fact report what he had seen and none of the Police Officers were questioned by his counsel on this point. We shall consider this aspect of the case fully at a later stage.

After a lengthy and most careful summing up each of the three Assessors gave an opinion that the accused was not guilty. The learned trial Judge disagreed with them and convicted the accused.

Mr. Figgis on behalf of the appellant attacked this judgment on a number of grounds. He emphasized the fact that the three Assessors were unanimous in finding that it would be unsafe to convict and that the second Assessor gave cogent reasons for his opinion. It was urged that a judge should be very reluctant to disregard such opinions and that, if he feels constrained to do so, he should at least cleary state why he differs from the reasons given by the Assessors.

We agree that the opinions of the Assessors must be treated with respect but they are not binding on the judge and many cases have occurred in which judges have properly come to the conclusion that they could not accept them. It might perhaps have been more satisfactory if the learned Judge had dealt specifically with the difficulty with regard to times and distances which influenced the second Assessor but he has in other respects given such a full and carefully reasoned judgment that we do not consider that this circumstance should be allowed to affect our decision.

We have ourselves fully taken into account the views of this Assessor and shall in due course state what appears to us to be the answer to the difficulty which he felt. Mr. Figgis next dealt with the finding of the learned Judge that he implicitly believed the evidence of Charles and of the three witnesses who came to the spot. Mr. Figgis analysed with great skill the evidence given by these witnesses as to times and distances and, adopting and developing the opinion of the second Assessor, he contended that, if one accepts what Charles says, the other three witnesses cannot possibly be speaking the truth and similarly that, if they are believed, it follows that Charles' account of what he saw must be a fabrication. The inconsistencies which Mr. Figgis relies upon are shortly as follows. According to Charles when he first saw the accused strike the deceased they were about sixty feet distant from him; he then walked towards them; when he was about forty feet distant from the scene of the attack the accused began to walk away and when Charles reached the deceased the accused had already proceeded some forty feet in the direction of the place where he boarded the car. Mr. Figgis very cogently pointed out that it is quite impossible to reconcile this description of Charles' movements and his estimates of distance with the undoubted fact that Balbirdass after receiving the information-presumably of the attack-whilst still in Government Road was able to reach the spot on his bicycle before accused had left and before Charles had reached the deceased. We visited the scene with counsel and were able to appreciate that Balbirdass had to come a considerable distance, a few hundred yards, and of course his informant must have had to traverse the same distance or at least a substantial part of it if he was some way from the spot when he saw the incident. Mr. Figgis argues that in view of these serious discrepancies Charles and Balbirdass cannot both be speaking the truth and he asks us to come to the conclusion that inasmuch as Balbirdass is strongly supported in most matetrial particulars by Abdullah and Kamotho we should accept his evidence and discard that of Charles as being so unsatisfactory that it would be unsafe to rely upon it. It must however be borne in mind that Charles is an African, apparently totally disinterested, who had never seen any of these Indians before. It is established beyond doubt that he tended the wounded man and took him to hospital and that he is correct when he says that the accused boarded a brown car. No reason has been suggested why he should deliberately invent the early part of his story in order to implicate a complete stranger. That being so it is necessary to consider whether there appears to be any reasonable explanation of these apparent discrepancies in the evidence. We are of opinion that there is. The visibility in that part of Whitehouse Road is extremely good and<br>there is very little traffic. It would have been easy to see an attack such as this from a considerable distance and it would be easy to underestimate distances. In our experience Africans are very poor judges of distances when it comes to expressing them in terms of yards and feet and we feel that it is not fair to discredit an otherwise seemingly reliable witness merely because his estimates on such points are quite impossible to reconcile with the accepted evidence of other witnesses. Furthermore it seems to us most improbable that he advanced towards the scene of the assault whilst the assailant was still cutting his victim with the sword. This sword is a most murderous looking weapon and it would have required great courage for an unarmed passer-by, seeing what must have looked like a maniac slashing another with such a weapon, to intervene and subject himself to the obvious danger of becoming a second victim. Human nature being what it is there is often a tendency on the part of persons in Charles' position to exaggerate the alacrity with which they have gone to the assistance of people in trouble. If one makes allowances such as these, which we think not unreasonable, the conflict between Charles and the other witnesses disappears. Taking the evidence as a whole it seems to us that what happened was substantially as follows. Siti Ram saw the attack commence and rushed off and told Balbirdass. Balbirdas rushed to the scene on his bicycle which would only take a minute or two. He did not go right up to the deceased but from some distance saw accused sword in hand standing over him, the attack being over before Balbirdass arrived. Kamotho also came upon the scene about the same time. From their evidence it is clear that the accused did not leave the scene immediately after the attack. He stood there some time and was seen to smear blood on the sword. Meanwhile Charles had been watching from some distance since the beginning of the attack. It is quite natural that the other witnesses would not notice him as he was unknown to them and their attention would be focussed on the man with the sword. Then when the accused moved away, and not before, Charles went to attend to the wounded man. This seems to us the probable and reasonable explanation of the evidence. The fact that Charles did not notice any bicycle at the time also seems easily capable of explanation. The deceased was admittedly riding his bicycle when he left his work. He was walking without a bicycle when Charles first observed the accused following him. When Kamotho came on the scene he found the deceased's bicycle lying on the road some thirty feet away from the deceased. From what the accused said to Mr. Jones in the car it is reasonable to infer that there was some wordy quarrel before the actual attack with the sword was made and it may well be that the accused stopped the deceased as he approached on his bicycle and pulled him off; that the deceased, leaving the bicycle lying there, then retreated on foot and that it was then for the first time that the attention of Charles was attracted to what was happening. His attention would naturally be concentrated upon the man with the sword and he may well have failed to notice the bicycle lying in the road some little distance behind. We have thought it proper to deal in detail with these apparent inconsistencies in the evidence because, as Mr. Figgis pointed out in his very careful and able analysis before us, they do present real difficulties and they were apparently not emphasized or fully probed at the trial. It follows from what we have said that upon a careful consideration of the evidence as a whole we are of opinion that the learned trial Judge who had the great advantage of seeing and hearing these four important witnesses was fully justified in coming to the conclusion that substantially they were telling the truth. We would add that Charles' description of the attack does not read like a concocted story. Even if there had been no eye-witness of the actual killing there would have been a very strong circumstantial case for the accused to meet. He was seen standing over the wounded man sword in hand with blood on his hands and clothing. He was seen to smear blood on the sword and to walk away carrying the sword and without succouring the injured man in any way. When he got to Mr. Jones' car he did not suggest taking the wounded man to hospital but, having left him lying there unattended, he proceeded to the Police Station. What is his explanation? It was given for the first time when he gave evidence at the trial. He admitted that he had not previously given it to either the Police or the doctors and at the preliminary inquiry he reserved his defence as, of course, he was fully entitled to do. What he now says, in effect, is that he found his friend and mentor lying wounded and was so bewildered at the sight that his subsequent behaviour may not have been rational. It is true, as Mr. Figgis pointed out, that Mr. Jones, the Police and the doctors agree that he did not seem normal but that would be equally consistent with his being a murderer rushing to give himself up. Even though not normal his memory for detail is remarkably good. He remembers that he did not ask the wounded man who attacked him; that he did lift up the sword; that he did not ask the by-standers to attend to the deceased and that he did not at the Police Station relate the story which he subsequently gave in his evidence at the trial. This failure to report what he had seen as soon as he arrived at the Station strikes us as significant and inexplicable. If his story were true the obvious thing for him to do would be to tell it to the Police at once however distraught he might be. If he had done, he could have given evidence to that effect and the Police witnesses could have been cross-examined to support him. As it is put in the Indian case of *Isar Singh v. Emperor*, 24 I. C. 585, referred to in Wills on Circumstantial Evidence, 7th Edition, page 109, "When no *prima facie* case has been made against

the accused, it is open to the accused to rely safely on the presumption of innocence or on the infirmity of the evidence for the prosecution. But when a prima facie case is made out and the presumption of innocence is displaced, then the force of circumstantial evidence is augmented whenever the party attempts no explanation of facts which he may reasonably be presumed to be able and interested to explain." That is to some extent an application of Illustration $(G)$ to section 114 of the Indian Evidence Act which provides that the court may presume that evidence which could be, and is not, produced would, if produced, be unfavourable to the person who withholds it. This presumption cannot of course be used by the prosecution in a criminal case to fill up gaps in their evidence but it is reasonable to draw an inference against the accused when, as here, a strong case has been made out against him and he omits to adduce evidence of his having done the one thing which one would have expected him to do if his story as to finding his wounded friend and rushing to report is true, such evidence being evidence which, if in fact he did so report, it was easily within his power to produce. In view of these omissions and admissions by the accused we are of the opinion that the learned Judge had ample grounds for rejecting the defence put forward.

It is a matter for regret, as Mr. Figgis quite properly suggested, that no plan was prepared. The explanation of this omission put forward by Crown Counsel is that it was not necessary from the prosecution point of view and that if the defence intended to rely upon discrepancies as to times and distances they could have applied to have a plan made and it would have been supplied free of charge. Whilst appreciating that that would of course have been done if requested we still consider that in a case of this description it is highly desirable that a plan should be made at once whilst the recollection of the witnesses is fresh. In our experience it is most helpful for the investigating police officer to make a rough plan on the scene at the earliest possible moment, marking all important spots as pointed out by witnesses. This rough plan need not be to scale but distances can be paced and it can be followed up later by a surveyor's plan. As and when any new witness is traced his evidence can be checked up with the plan. In the present case it would have been of the utmost assistance to us when we visited the scene to have been able to see for ourselves where the pool of blood was, where Charles was when his attention was first drawn to what was happening, where the other witnesses came from, where they were when they saw the accused and where the bicycle was found. Such a plan would of course have been equally helpful to the learned trial Judge and to the Assessors, and it may be that if these points had been more clearly before them the Assessors would not have been left with the doubts which troubled them when they gave their opinions. Having viewed the scene we are satisfied that this omission, though to be regretted, has not in any way prejudiced the accused. If any thing, it probably operated in his favour. He has had a most fair and careful trial and we see no reason to interfere with the finding of the learned Judge.

The appeal is dismissed.

*Note.*—An application to the Privy Council for special leave to appeal from this decision was refused.