[1941] EACA 97

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and Sir HENRY WEBB, C. J. (Tanganyika)

## REX, Respondent $\mathbf{v}$

WADINGOMBE BIN MKWANDA alias ANTON, SMOPO BIN MWIN-CHUMA and SAIDI BIN MAILANGA alias MAKUMBI, Appellants

Criminal Appeals Nos. 192, 193 and 194 of 1940

Appeals from the decision of H. M. High Court of Tanganyika.

Evidence-Indian Evidence Act, section 30-Relevance of confession of coaccused—Corroboration.

The facts appear adequately from the judgment. The Court considered and explained section 30 of the Indian Evidence Act, which provides: "When more persons than one are being tried jointly and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation. "Offence, as used in this section, includes the abetment of, or attempt to commit, the offence."

Held (5-2-41).—(i) That the only way in which such a confession can be taken into consideration is as evidence.

(ii) That it would be difficult to conceive a case in which it would be proper to convict on the unsupported evidence afforded by the confession of a co-accused.

(iii) It is not necessary that corroborative evidence should by itself be sufficient to support a conviction.

Appellants absent unrepresented.

Stacey, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The three appellants were convicted of murder. A fourth man Zuberi was convicted as an accessory after the fact and has not appealed, so that we are not concerned with his case.

The cases of the first two appellants, Wadingombe and Smopo, present no difficulty. They frankly admitted having killed the deceased at the instigation of the third appellant, Saidi. Their only ground of appeal is that they were tempted to do it for the sake of money. Their appeals are dismissed.

The case of the third appellant, Saidi, is different. He made a statement extrajudicially to which he adhered at his trial. In this he stated that John (the deceased) killed his (Saidi's) father by witchcraft and that a few days later, whilst he was still feeling very bitter about this, he met Wadingombe, who was a witch doctor, and asked him to work for him. He agreed and Saidi paid him Sh. 15, whereupon Wadingombe laid medicine outside John's house with no result. Saidi complained to Wadingombe "that his medicine was no good as John was not even sick". He went with Wadingombe and Smopo to the house of one Kogwire, who imagined that his child had also been killed by the witchcraft of John. They hid there, and next night Wadingombe and Smopo went to John's house. They came back and told Saidi, "The work is done and John is dead". Saidi and the others then went and hid the body.

This is a highly incriminatory statement, but in itself cannot be regarded as going so far as confessing instigation to murder, and the Crown case against Saidi, whilst relying upon this statement as corroboration, rested mainly upon the allegations against him contained in the confession of his co-accused Wadingombe. This confession was accepted by the learned trial Judge and by the assessors as a full and frank account of the actual killing and of the circumstances which led up to it. Wadingombe categorically states that Saidi approached him saying that. he wanted medicine "to kill John, the man who had killed his father"; that Saidi paid him Sh. 15 and showed him the house of John (the deceased); that, after the medicine had failed to make John sick, Saidi complained; that they then visited the house of Kogwire, who, in the presence of Saidi, said that he was delighted to hear that they were going to kill John; that Saidi stayed the night there whilst Wadingombe and Smopo went off to kill John and strangled him; and that when they returned and reported to Saidi that "the work was done", Saidi went and helped to dispose of the body.

This confession, made by Wadingombe in his statutory statement before the committing magistrate, amounts to an unqualified plea of guilty to murder on hispart and an allegation that he was instigated thereto by Saidi. It remains to beconsidered to what extent it can be accepted as evidence against Saidi. Under section 30 of the Evidence Act it can clearly be taken into consideration against Saidi for the reason that in it Wadingombe admits completely the offence charged against him and, far from seeking to exculpate himself, tars himself with the same brush. We emphasize this point in view of misconceptions which, from certain judgments which have recently come to our notice, appear to exist in somequarters. A simple example may be useful. If A and B are jointly charged with murder and A makes a statement to the effect that it is true that he murdered the deceased, but that B assisted by holding the victim whilst A stabbed him, the statement could be taken into consideration as against B, but if, on A and B being charged with the murder of C, A said that he and B arranged to pick C's pocket and that whilst he, A, was doing so he, to his complete surprise, saw B stab C, that statement of A's could not be taken into consideration as against B. The distinction between the two cases is to be found in the fact that by making a real unqualified confession the person who makes it has exposed himself to the pains. and penalties prescribed for the offence and we have this guarantee, quantum *valeat*, for the truth of the statement. This is especially so where the confession is made, as in the present case, under the protection of the Court. It may be a weak guarantee, but it is some guarantee.

It is thus clear that what Wadingombe says in his confession implicating: Saidi may be taken into consideration in weighing the case against Saidi. The meaning of the words "take into consideration" in section 30 was discussed in the Indian case Emperor v. Kehri and others, 29 Allahabad 434, and we agree with Knox, J. in his conclusion that the only way in which it can be taken into consideration is as evidence. That case resembled the present one in that one of threeco-accused, Kehri, made a long and detailed confession before a magistrate in which he stated that he and the two others committed the actual murder. There, however, Kehri later retracted his confession. It was held that since both the character of the confession and the circumstances under which it was made indicated that it was a voluntary confession and that Kehri was telling the truth, the Court was bound to act on it and find Kehri guilty even if there was no corroboration. We would observe, in passing, though it is not necessary for our decision in the present case, since here there was no retraction, that this Court has taken a similar, view with regard to retracted confessions in the recent cases of $R$ . $v$ . Robert Sinoya and another reported in 6, E. A. C. A. at p. 155, and R. v. Keisheimeiza $w/o$ Tindikawa reported in 7, E. A. C. A. at p. 67. As regards the other accused it was held that the confession of Kehri could be used as

evidence against those tried jointly with him for the same offence and that although, since he was in the position of an accomplice, corroborative evidence might be necessary, it was not necessary that such corroborative evidence should by itself be sufficient to support a conviction. We agree with that view, but would add that it seems to us difficult to conceive a case in which it would be proper to convict on the unsupported evidence afforded by the confession of a co-accused.

It is accordingly necessary to consider whether there is any independent testimony implicating Saidi in some material particular and tending to show that what Wadingombe said as to the complicity of Saidi was most probably true. We are satisfied that ample corroboration showing that Saidi instigated Wadingombe to cause the death of John is to be found in the evidence of Kogwire and his wife and in the statement of Saidi himself.

In order to make Saidi as an instigator equally liable with those whom he instigated to do the killing it is not necessary to show that he knew of or approved of the precise method by which the killing was eventually carried out. As Sir John Beaumont, C. J. observed in *Emperor v. Shankaraya Gurushiddayya*, 1940 Bombay at p. 700, "It is plain that an agreement to commit murder, being an agreement to commit an offence, falls within section 120_B, and none the less so. in my opinion, because the means by which the murder is to be perpetrated are not agreed upon, or the means which are agreed upon are such as are not likely to prove, and do not in fact prove, effective. If once there is a conspiracy to commit murder, the case falls within section 120B, the offence under that section being the conspiracy, and not the acts by which the subject matter of the conspiracy is to be carried into effect. But if the conspiracy is merely to do an act which is not illegal, though in the hope and belief that that act may result in the death of or injury to some person, in my opinion that does not amount to a conspiracy to do an illegal act."

On the evidence we are satisfied that Saidi paid Wadingombe to cause the death of John by witchcraft if possible or if not in that way, then by any other means; that he knew Wadingombe set out to kill and approved his design, and that when he found that John had been strangled he was content that the result which he had desired had been achieved and assisted to dispose of the body Accordingly we dismiss his appeal.