[1943] EACA 40

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR HENRY WEBB, C. J. (Tanganyika), SIR NORMAN WHITLEY, C. J. (Uganda) and MCROBERTS, J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

# DALIP SINGH s/o SIAN SINGH, Appellant (Original Accused No. 1) Criminal Appeal No. 182 of 1943

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

Criminal Procedure-Joinder of charges-Offences founded on the same facts-Joinder of accused—Different offences committed in the course of the same transaction—Criminal Procedure Code (Kenya), Sections 135 (1), 136 (d).

The appellant and S. were charged together with stealing articles the property of the Kenya and Uganda Railways; in a second charge the appellant was charged with giving a bribe to a police officer, contrary to section 93 (2) of the Penal Code (Kenya), in order to procure his release from arrest and prosecution for the theft. The bribe was offered a very short time after the arrest of the appellant and S., while they were being taken to the Police Station under arrest. The two charges were tried together; on the first the appellant and S. were convicted (by virtue of section 187 (c) of the Criminal Procedure Code) under section 316 of the Penal Code, on the second the appellant was convicted.

Held $(9-11-43)$ .—(1) That in the circumstances the two charges were "founded on the same facts" since the evidence showed that the bribe had been offered within a very short time of the arrest of the appellant and S, and while they were on their way to the police station.

(2) That the theft by the appellant and S, and the offering of the bribe by the appellant were "different offences committed in the course of the same transaction" Appeal dismissed.

Appellant absent, unrepresented.

## Smith, Acting Solicitor General (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).-The appellant and one Sikanda s/o Hitwasi were charged together with stealing some wood and a suffuria, the property of the Kenya and Uganda Railways, and in a second charge the appellant was charged with giving a bribe to the police in order to procure his release from arrest and prosecution for the theft. The two charges were tried together, on the first the appellant and Sikanda were convicted under section 316 of the Penal Code (by virtue of section 187 (c) of the Criminal Procedure Code. Kenya) of conveying property reasonably suspected of having been stolen, and the appellant was fined Sh. 200 or two months' imprisonment with hard labour; on the second charge the appellant was convicted and sentenced to four months imprisonment with hard labour. On appeal to the Supreme Court of Kenya the convictions were affirmed.

On this second appeal the appellant contends, firstly, that there was an improper joinder of charges, because the stealing and the bribery were not "offences of the same or similar character", nor were they "founded on the same facts"—see Criminal Procedure Code, section 135 (1). Undoubtedly the two offences were different in character, but in our opinion both were, in the circumstances of this case, founded on the same facts, for the evidence showed that the bribe was offered within a very short time after the appellant and Sikanda had been arrested with the wood and the suffuria in their possession, and while they were still on their way to the Police Station. It may be that if a person at a substantial interval of time after his arrest offers a bribe in order to secure his release, a charge under section 93 (2) of the Penal Code should properly be made the subject of a separate trial, but, as we have just said, that was not the case here. Even if there had been a technical irregularity the appellant could not have been in any way prejudiced by it, for even if he had been tried only on the charge of theft, evidence of the attempt to bribe could have been given in support of that charge under section 8 of the Indian Evidence Act as evidence of subsequent conduct tending to establish his guilt. And this disposes of another of the appellant's grounds of appeal, that the prosecution sought to prove the theft in order to prove the charge of official corruption and vice versa.

The second main ground of appeal is that there was a wrong joinder of accused. In our opinion this contention is equally without substance; the joinder falls within the express provisions of section 136 $(d)$ of the Criminal Procedure Code, for the theft by the appellant and Sikanda and the attempted bribery by the appellant alone were "different offences committed in the course of the same transaction".

Finally the appellant attempts to argue that his conviction under section 316 of the Penal Code was wrong because he was not called upon to give an account of how he came by the property, but as his defence was that he knew nothing about it and that it was not his, it is hard to see what useful purpose would have been served by asking him to account for his possession of it.

The appeal is dismissed.

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