[1947] EACA 76

#### APPELLATE CRIMINAL

### Before HORNE and BOURKE, JJ.

# REX, Respondent (Original Prosecutor)

## BAKHSHISH SINGH, Appellant (Original Accused) Criminal Appeal No. 481 of 1946

Perjury-Evidence in Civil Proceedings-Record of evidence-O. XVI, r. 6, not complied with—Record inadmissible—Evidence of witness based on record also inadmissible.

The appellant was charged with having committed perjury in the course of his evidence in a civil suit before the Supreme Court. The appellant, whose mother tongue is Gurumukhi, testified in Hindustani and his evidence was translated by a Gujerati interpreter into English and recorded in that language by the Court. The evidence of the appellant was not, however, recorded in accordance with the requirements of Order XVI, rule 6, of the Civil Procedure Rules.

At the trial the interpreter in the civil suit produced the whole of the original record and said that he had marked the passage alleged to be false appearing in the recorded testimony of the appellant and that he had truly interpreted the evidence of the appellant who appeared to understand Hindustani well into English.

The appellant was convicted and appealed.

*Held* $(13-3-47)$ .—(1) That as the appellant's evidence given in the course of the civil suit was not recorded in accordance with the provisions of Order XVI, Rule 6, the record of his evidence was not admissible to prove what he had said from the witness box.

(2) That since the interpreter did not state from his recollection the words uttered by the appellant from the witness box but in effect said that the record of the evidence was a correct record of what the appellant had said on oath, his evidence was no substitute for and could not make up for the deficiencies in the record and was useless as proof of what the appellant said.

Appeal allowed.

Cases referred to: R. v. Atkinson 10 E. A. C. A. 119; Nurmohamed Remtulla Bapoo v. Rex 3 L. R. Tanganyika 67.

### Modera (Gautama with him) for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was charged before the Court of the Resident Magistrate, Nairobi, in three counts with three offences of perjury arising out of the same judicial proceedings on the civil side of the Supreme Court. The learned Magistrate found that the appellant had testified falsely as to part of the matter set forth in each count; he held that the charges should not have been multiplied and entered a single conviction for an offence contrary to section 104 of the Penal Code. The appellant was sentenced to nine months' imprisonment with hard labour and to pay a fine of Sh. 1,00 $\bar{0}$ with the alternative of a further four months' imprisonment with hard labour in default of payment.

The appellant had given his testimony before the Supreme Court in Hindustani which was translated by the Court Interpreter, Mr. Desai, into English and recorded in that language by the Judge. The mother tongue of the appellant is Gurumukhi and that of the interpreter is Gujerati, but the latter testified that he spoke in Hindustani to the appellant, who replied in that language and "appeared" to understand it, and answered properly in it". No point turns upon the setting out in English in the charges of the matter alleged to be given knowingly as false testimony by the appellant; what is raised is that the record of the proceedings produced in proof of the testimony of the appellant complained of is not admissible

in evidence. The whole of the original record was put in through Mr. Desai, who was heard to say that he had marked the passages alleged to be false appearing in the recorded testimony of the appellant and that he had truly interpreted the evidence of the appellant into English. No objection was taken by reason of the fact that the whole file of the civil case was put in, which is contrary to what was laid down in R. v. Atkinson, 10 E. A. C. A. 119, but Mr. Modera did object to the admissibility of the recorded testimony of the appellant on the ground that it had not been recorded by the learned Judge in accordance with the requirements of Order XVI, rule 6, of the Civil Procedure Rules. The objection was overruled by the Court below and the question arising for determination upon this appeal is whether the learned Magistrate was correct in so ruling. Order XVI, rule 6, reads as follows: —

"6. Where the evidence is taken down in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall when completed be interpreted to him in the language in which it was given:

Provided that in any case the application of this rule may be waived by consent of both parties or their advocates, if any".

It is not in dispute, and is found as a fact, that the rule was not complied with and there is the evidence of the Court Clerk and Interpreter, Mr. Desai, to the effect that there was no agreement between the parties or their advocates that the application of the rule should be waived. We are unable to accept the view of the learned Magistrate that silence on the part of counsel can reasonably be interpreted as a waiver of the application of a mandatory provision of this kind. Our attention has been directed to the decision of the Court of Appeal for Eastern Africa in Nurmohamed Remtulla Bapoo v. Rex, 3 L. R., Tanganyika 67, which appears to be authority directly in point. In that case the appellant had been convicted of having committed perjury in the course of his evidence given in a civil case. The prosecution relied upon the record in the civil suit to prove the words uttered by the appellant and it was then objected that the record was inadmissible as evidence for the purpose by reason of the Judge's omission to comply with all the provisions set out in Order 18, rule 5, of the Civil Procedure Rules. The rule, inter alia, required that the evidence when recorded by the Judge should be read over in the presence of the witness and, if necessary, corrected by the Judge. This has not been done. It was held-"We are of opinion that the procedure applicable in Civil Case 1155/1930 was that prescribed by Order 18, rule 5. It follows that the appellant's evidence given in the course of that suit was not duly recorded and the record of the suit was not admissible as evidence of the words uttered by the appellant when he was in the witness-box. As no adequate secondary evidence was adduced at the trial of the appellant upon the charge of perjury it is not necessary for this Court to consider whether secondary evidence can be adduced to prove the evidence given by a witness when the law directs that such evidence shall be reduced to writing in a prescribed form". The appeal was allowed and the conviction set aside. Following that authority we hold that failure to comply with the provisions of Order 16, rule 6, rendered the record of the interpreted evidence of the appellant in the civil suit inadmissible at the criminal trial to prove what he said from the witness-box because his evidence was not duly recorded in accordance with law.

It seems clear on the authority of Atkinson's case (supra) that in Kenya, unlike the position under the law in England, the best evidence of the testimony constituting the alleged perjury is the Judge's record of such testimony duly taken in compliance with law so as to form "part of the record". It has been argued for the Crown that if the record is inadmissible the evidence of the interpreter is sufficient proof of the sworn matter alleged to be perjury. Mr. Desai testified— "I clearly remember the accused in his evidence in the civil case saying the three passages already read out and contained in the three counts". The witness did not

state from his recollection the words uttered by the appellant from the witnessbox (see Archbold, 31st Ed., p. 1221). He is simply stating in effect that the words he had already marked in the record and read out from the record as taken down by the Judge are a correct account of what the appellant said on oath in Hindustani as interpreted by the witness into English. This evidence was objected to at the time by Mr. Modera, but it was held admissible. We are of opinion that such evidence simply goes to throw us back upon the contents of the record, which is inadmissible because it happened that it was not interpreted **back** to the appellant at the trial of the civil case to enable correction, if any, to be made by the appellant. We hold that Mr. Desai's evidence is no substitute for and cannot make up for the deficiency in the record rendering it useless as proof against the appellant. The appeal is allowed and the conviction and sentence set aside; the appellant is acquitted; the fine, if paid, to be refunded.