[1943] EACA 20

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

## HAZARA SINGH, Appellant (Original Accused)

Criminal Appeal No. 176 of 1942

## Appeal from decision of H. M. Supreme Court of Kenya

Supreme Court—Acting trial judge—Validity of appointment—Appointment made by Governor-East Africa Order in Council, 1906, Article XII-Kenya Colony Order in Council, 1921, Proviso (1), Letters Patent, 11th September, 1920, Article XVII.

This was an appeal from a conviction of Manslaughter and sentence of twelve years' imprisonment with hard labour passed upon the accused by Horne, Acting Judge of the Supreme Court of the Colony and Protectorate of Kenya. The case is reported only upon a question which arose during the appeal as to the validity of the appointment of the trial Judge. He had been appointed by the Governor to act as a Judge of the Supreme Court and not by the King. The question arose because normally appointments of qualified persons to be Judges of the Supreme Court of the Colony and Protectorate of Kenya are made by the King.

Held (18-2-43).—That the appointment was validly made by virtue of the powers contained in Article XII of the East Africa Order in Council, 1906, which powers are kept in force by<br>virtue of Proviso (1) of Article II of the Kenya Colony Order in Council, 1921. This power is also contained in Article XVII of the Letters Patent dated the 11th September, 1920.

Burke for the Appellant.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The learned trial Judge found that the accused shot the deceased. The three assessors, members of the accused's community, expressed their opinions to the same effect. To support this finding there was ample evidence, that of eye witnesses who were members of the community to which both the deceased and accused belonged. Their evidence that the accused shot the deceased in the latter's house, where a drinking party to celebrate the news of marriage in India was taking place, must either be true or else the result of a wicked conspiracy. As to why it should be the latter no reason was forthcoming.

The case for the defence was built on the familiar foundations of discrepancies in the evidence of the witnesses and particular stress was laid on two features of the case. The first was that the position of the wound in the body was inconsistent with the position of the deceased at the time the fatal shot was fired taken in conjunction with the evidence of the eye witnesses as to the level or height from which the shot was fired; the second was that the evidence of relevant times was contradictory.

In this Court an argument for the defence was based on Doctor Vint's evidence as to the position of the wound and his opinion of the probable positions of the deceased and the accused and the level at which the shot must have been fired to cause such a wound. The doctor's evidence was contrasted with the evidence of the eye witnesses with a view to establishing that the shot could not have been fired as they testified and that they were lying when they said the

accused shot the deceased. But where a shot is suddenly and unexpectedly fired in a room with a number of people in it, it cannot be expected that those present will give an absolutely uniform or exact account of the relative position of the victim and his assailant, of the level at which the weapon was held, or such like. One can picture what those present observe in such a case: a revolver concealed on the person of the assailant is suddenly whipped out, a shot is fired, a person is wounded, and the assailant is seen to have a revolver in his hand. Confusion if not panic ensues. Cross-examination is bound to reveal discrepancies as to what the different witnesses saw, and those discrepancies are most frequently a hallmark of truth and what ordinary every day experience teaches one to expect. Several persons, for instance, see an accident, yet individually will give quite varying accounts of what took place. This of course is due to such causes as capacity for observation differing with individuals and one person seeing one part of the occurrence and another a different part. But what cannot be questioned in this case, is that a person was mortally wounded by a shot fired by somebody in the room. And what reason is there for holding that the crime has been wickedly fastened on the wrong man? None that we can see.

As for the second feature, the contradictory evidence of relevant times, it is humanly to be expected and cannot possibly be a ground for upsetting the conviction on the facts of this case.

Then in support of the Crown case there is evidence of motive in the rebuke as to his manner of life the accused received from the deceased shortly (estimated at half an hour) before the shooting. Here again the Crown witnesses are alleged to have lied in saying that any such incident happened. Well, the short answer is that the learned trial Judge and the assessors believed that they were speaking the truth, and again we say we see no reason why they should lie.

The appeal is on facts and has no merits. The accused in our opinion was very fortunate in not having been convicted of murder, for with respect, the fact that he was affected by drink and may have been more easily deprived of his self-control in consequence is not a mitigating circumstance in law.

Before dismissing the appeal we should like to refer shortly to the question of the validity of the trial Judge's appointment which at the request of the Court was argued by the learned Attorney General. We agree that the appointment was validly made by virtue of the powers contained in Article XII of the East Africa Order in Council, 1906, which powers are kept in force by virtue of Proviso (1) of Article II of the Kenya Colony Order in Council, 1921. This power is also contained in Article XVII of the Letters Patent dated the 11th September, 1920. On this question we also heard Mr. Burke, who appeared for the accused, and he stated that he was unable to resist the submission that the appointment was validly made.

The sentence of twelve (12) years hard labour in all the circumstances was not excessive.

The appeal is dismissed.