[1945] EACA 17

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar) and MANNING, J. (Uganda)

## REX, Respondent (Original Prosecutor)

## SHIJA s/o MKINA. Appellant (Original Accused) Criminal Appeal No. 50 of 1945 (Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law-Manslaughter-Tanganyika Criminal Procedure Code, Section 164 -Absence of evidence supporting finding of fact-Indian Evidence Act, Section 157—No cross-examination of defence witnesses—Practice:

The appellant, who was charged with his brother, was alone convicted of the manslaughter of one Lwehagila s/o Gute. At the trial there was a conflict of evidence as to whether it was the appellant or his brother who struck the fatal blow. The record of the evidence was very scanty; the record of the proceedings did not state whether at the close of the trial Counsel for the prosecution addressed the Court and whether the learned Judge summed up the evidence to the assessors; the defence witnesses were never challenged in the witness box by the prosecution; the judgment did not comply with the provisions of Section 164, Criminal Procedure Code, and the learned Judge based his finding on an alleged fact which had no evidence to support it. The assessors were of opinion that it was appellant's brother who was responsible for the killing.

The appellant appealed.

*Held* $(19-4-45)$ .—(1) Having regard to all the matter stated above the conviction is unsatisfactory and cannot be allowed to stand.

(2) If, on a crucial point in the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be<br>challenged in the witness box or, at any rate, that it should be made plain, while the<br>witness is in the box, that his evidence is no

Appeal allowed, conviction and sentence set aside.

$Re_X$ v. Hart (1932) 23 Cr. App. R. 202 quoted with approval.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).-The appellant in this case was charged with his brother with the manslaughter of Lwehagila $s/o$ Gute. The evidence shows that the brother, the deceased, a man named Bihemila, and certain other persons were returning from a drinking party when a quarrel arose between the appellant's brother and Bihemila.

A fight followed and in the course of it the deceased received a fatal injury from a billhook. At the trial there was a conflict of evidence as to whether it was the appellant or his brother who struck the fatal blow. The assessors were of the opinion that it was the brother. The learned trial Judge's judgment is a very short one and reads as follows: —

"Judgment is that No. 1 (sic the appellant) did the killing and did his best to get No. 2 to confess to it before this Court started. Fortunately, this was stopped.

No. 2 started a fight when drunk: No. 2 discharged. No. 1 came there to help and killed a man; but you have behaved badly in trying to put it on him. $\sim$ $\sim$

Three years hard labour."

Our first observation is that this judgment does not comply with the provisions of Section 164 of the Criminal Procedure Code. Our second is that we are unable to find any evidence to show that the appellant ever did anything to induce his brother to confess to the offence or that he was stopped from doing so before the Court started.

The record of the evidence is very scanty. In so far as the prosecution evidence goes to incriminate the appellant it reads as follows: $\rightarrow$ .

Petro s/o Abeli—"... After the fight started between Bihemila and No. 2, No. 1 (sic). Deceased was not fighting; No. 1 ran in and struck him with a billhook. Bihemila struck No. 2 on the forehead and knocked him down. That ended the fight. Deceased died at 1 $p.m.$ the next day. You all had a little drunken. No. 2 was very drunk. No. 1 was not very drunk."

Bihemila s/o Makoti—"No. 2 started the wrestling. No. 2 started the second fight; he and I fought and stick versus billhook and I knocked him out and my stick is marked. Petro and Kisena were fighting. Deceased was not fighting; he was trying to stop the fight. No. 1 came and cut him with a billhook. As a result No. 1 (sic) died. I identified the body to the European doctor. (Cross-examined)-No. 2 never hit deceased. No. 2 and Kisena came to fight. No. 1 was later hiding himself. I struck No. 2 twice. Twice on the head and once on the back. The deceased was injured just as I was about to hit No. 2."

The appellant gave evidence upon oath at the preliminary inquiry and that statement was put in evidence at his trial. In that statement he said he came late upon the scene of the fight and that, when he arrived, he saw his brother being beaten and saw the deceased already lying prostrate on the ground. In cross-examination he said: "Igokoro (sic his brother) was drunk. He was not speaking. He did not tell me who killed deceased. Kisena said deceased was killed by Igokoro. I do not know if Igokoro heard this as he was in great pain". The appellant made no profession of knowing who had struck the fatal blow. In answer to the committing magistrate, who appears to have conducted the preliminary inquiry with considerable care, he said: "Whoever else cut the deceased I did not". It is difficult to see how this evidence can be construed as an attempt on the part of the appellant to save himself by inducing his brother to confess.

At the trial the appellant called two witnesses, who were called by the prosecution at the preliminary inquiry. Their evidence is as follows:-

Kisena s/o Mkina--"No. 2 killed the deceased during the fight. No. 1 came later. Kamba was with me when I fetched a blanket to carry the deceased. Billhooks and sticks were used. I was hit by the deceased. (Crossexamined—No questions.) (To Assessor No. 1.)—All were drunk. (To Assessor No. 2)-No. 1 came to help his brother. No. 1 was sober. (By Court) It is our custom to put it on the youngest if possible. I can't deny it."

Kamba d/o Masebu—"After the fighting Kisena accused my husband No. 2 of killing the man. The blanket fetched by No 2 was for No. 2 not for the deceased. No. 2 fetched a billhook at my house that afternoon. He said he was beaten by Watussi." (No questions by prosecution, assessors or Court.)

With respect to the evidence of this last mentioned witness it should be observed that what the witness Kisena told the witness is relevant under the provisions of Section 157 of the Indian Evidence Act. With respect to the evidence of both witnesses it is to be noted that neither of them was crossexamined by the Crown.

In this connexion we would refer to the following passage from the judgment of the Court of Criminal Appeal in Rex v. Hart (1932), 23 Cr. App. R. $202:$

"In our opinion, if, on a crucial point in the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box, or at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted."

The appellant's brother reserved his defence at the preliminary inquiry. At the trial he stated that he had nothing to say and called no witnesses. At the close of the trial, counsel for the prosecution does not appear from the record to have addressed the Court. To judge also from the record, there was no summing up of the evidence to the assessors.

It is to be noted that at the time when the deceased received his injury there was a general fight going on and that both the prosecution witnesses, who say the appellant struck the fatal blow, were engaged in fighting other persons engaged in the affray. In his very brief judgment, the trial Judge has not considered the possibility that those witnesses might, in the circumstances, have not been in a position to see who actually struck the fatal blow. The defence witnesses were never challenged in the witness box by the prosecution and the trial Judge has based his finding on an alleged fact which has no evidence to support it. Having regard to all these matters, we have come to the conclusion that this conviction is unsatisfactory and cannot be allowed to stand. This appeal is accordingly allowed and the conviction set aside.

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