[1951] EACA 233

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

### BYAMUNGU s/o RUSILIBA, Appellant (Original Accused)

### REX. Respondent (Original Prosecutor)

### Criminal Appeal No. 148 of 1951

(Appeal from the decision of H. M. High Court of Tanganyika—Mahon, J.)

Criminal Law-Murder-Evidence of child of tender years-Corroboration-Discrepancies between evidence of child and corroborating witnesses not dealt with by trial Judge—Discrepancies between depositions and evidence at trial not called to Judge's attention—Demeanour of witnesses—Section 32 (1) Indian Evidence, 1872—Inadmissibility of evidence of alleged statement by deceased.

The appellant was convicted of murder by the High Court of Tanganyika. The murder was alleged to have been committed by him and another man not in custody. The only eye-witness to the murder was a boy aged seven years. The trial Judge correctly directed himself as to the necessity for corroboration of the boy's evidence, but failed to observe that the evidence of the boy's two sisters, which he treated as corroboration contradicted the boy in a material particular. The medical evidence did not entirely support the boy's account of the killing, and the Judge's attention was not called to discrepancies between the boy's evidence before the committing Magistrate and his evidence at the trial. The elder sister gave evidence of a prior conspiracy to murder the deceased, but it was not called to the Judge's attention that she gave a reason for the conspiracy before the Magistrate which was entirely different from the reason which she alleged at the trial. Evidence was given by the headman of the appellant's village that the latter had disappeared on the day that the deceased's body was recovered, but this was entirely inconsistent with his evidence before the Magistrate. Evidence was given by a friend of the deceased that the latter had told him "that Kagoma (i.e. the man not in custody) had once chased him with a spear, and also that the accused (i.e. the appellant) and another person were arranging to kill him". The defence was an alibi, which the trial Judge rejected, but his finding that the appellant did not leave his village until nine days after the deceased had been killed did not appear to be supported by the facts recorded.

. Held (21-8-51).—That whilst it must be presumed that the trial Judge's acceptance of the evidence of the boy and his sisters was determined by their demeanour, an impression as to the demeanour of a witness ought not to be adopted without testing it against the whole of the evidence of the witness in question: that the Court will look at the depositions when it considers that the interests of an appellant and of justice are thereby served, and that had the contradiction between the boy and his sisters, and the discrepancies disclosed by such inspection, been presented to the minds of the Judge and assessors, they would not necessarily have accepted the evidence of the three children; that the evidence of the deceased's friend was not admissib suggested) covered by section 32 (1) of the Indian Evidence Act, 1872, and was gravely prejudicial to the appellant; and that the prosecution had not discharged the onus laid upon it.

Conviction and sentence of death quashed. Appellant directed to be set at liberty. Appeal against conviction.

Cases referred to: R. v. Okecha s/o Olilia (1940) 7 E. A. C. A. 74; Yuill v. Yuill (C. A.) (1945) 1 All. E. R. 183, p. 189 (as to demeanour of witnesses); Swami v. I all<br>Emperor (1939) 1 All. E. R. 396 (as to admissibility of statements under Indian Evidence<br>Act, 1872); R. v. Lyangia and Another (1938) 5 E. 13 E. A. C. A. 164.

#### Appellant absent. unrepresented.

J. C. Summerfield (Crown Counsel, Tanganyika) for the Crown.

There was corroboration of the small boy's evidence. The evidence of the deceased's friend was admissible under section 32 (1) of the Indian Evidence Act, 1872.

JUDGMENT (delivered by SIR NEWNHAM WORLEY, V. P.).—This is an appeal from a conviction of murder before the High Court of Tanganyika. The only grounds of appeal which call for consideration are:-

- (1) that the learned trial Judge erred in believing the evidence of the only principal prosecution witness, a young boy named Hitira aged about. seven years, without material corroboration; - (2) that the prosecution did not prove the case at all or beyond reasonable. doubt.

As to the first ground, the boy, Hitira, was not sworn or affirmed but was. $\epsilon_{\pm}$ admonished to speak the truth and the learned trial Judge correctly directed himself that it would be unsafe to accept his evidence unless it was corroborated.

The boy's evidence was that he was present in his mother's house with the woman Kakoga (who was his eldest sister), deceased, appellant and another man named Kagoma who has evaded arrest; that the three men drank together; that the appellant and Kagoma then killed the deceased, appellant striking him on the back of the head with a panga and Kagoma spearing him in the chest twice.

The medical evidence was that the deceased's body showed three wounds namely: (1) a stab-wound skin deep, above the left collar bone; (2) a deep stabwound between the 7th and 8th ribs on the right side involving the lung cavity, the diaphragm and the liver; and (3) a fracture of the left temporal bone of the skull. This last injury was the one which caused death and, in the doctor's opinion, it must have been caused by a blunt instrument. The doctor found no evidence of a cut such as he could have expected to find had a panga been used. This opinion is *prima facie* inconsistent with Hitira's story but the trial Judge thought it possible. that the deceased was hit with the flat of the panga and not with the edge. Although this is a possible explanation, it seems to us highly improbable that an assailant. deliberately intending to kill (and that was the allegation here) would not have used the edge of the weapon.

Hitira further testified that after killing the deceased, the appellant and Kagoma then buried the body in a pit near the house and that the appellant threatened to kill him if he told what he had seen. He alleged, however, that that same evening he told his sister, Ninablanketi, what had occurred.

The crime is alleged to have been committed on a Monday early in September,. 1950 (which must have been either the 4th or the 11th) but the first information did not reach the Police until Thursday, the 14th. Police Officers came to the village on the 15th (Friday) but neither Hitira nor Ninablanketi disclosed their knowledge on that day. The Police Officers came again on Sunday, 17th. September, and stayed till the 19th on which day either Hitira or Ninablanketi or perhaps both of them led the police to the pit where the body of the deceased. was disinterred.

Apart from such corroboration of the general truth of Hitira's story as was afforded by the medical evidence and the discovery of the body in the pit, the learned trial Judge found corroboration directly implicating the appellant in the evidence of Ninablanketi and another sister named Mukakimuno. Both these sisters gave evidence on affirmation: Mukakimuno's age is given as about twelve years. Ninablanketi's age does not appear on the record but we are informed by counsel for the Crown that she was about seventeen or eighteen years of age. Ninablanketi and Mukakimuno both testified that when they left the house on the Monday in question at about 8 a.m. Hitira and Kakoga were alone in the house; when they returned about 4 p.m. the appellant and Kagoma were also there and the appellant was washing a panga while Kagoma was washing a spear. The two girls were sent away by Kagoma to fetch some more water but when they returned to the house, the appellant and Kagoma had gone. Both the girls noticed that the floor of the house had been swept clean of the grass which usually covered it and both deposed that Hitira showed them the pit in which the body was subsequently discovered and that they saw it had been filled with fresh earth.

The learned trial Judge accepted this evidence but he does not appear to have notice that Hitira had stated in evidence that Kagoma and the appellant had already left the house before his two sisters returned. Nor was the Judge's attention drawn to this witness's deposition before the committing Magistrate in which he had said that the appellant stayed that night in their house.

Ninablanketi further gave evidence of a prior conspiracy by appellant and Kagoma to kill the deceased. Although this was evidence of something antecedent to the crime it might, if believed, afford good corroboration in law: $Rex$ v. Okecha $s/o Ollila$ (1940), 7 E. A. C. A. 74. The appellant and Kagoma are uncle and nephew and shared a house in the village. The deceased lived in the same village with the woman Kakoga as his concubine: she had however left him and returned to her mother's house about a week before his death and there was evidence that on the day of his death the deceased had gone to that house to fetch Kakoga back. Ninablanketi's evidence at the trial was that she had overheard a conversation between Kagoma, her sister Kakoga and the appellant in which Kagoma said he wanted to kill the deceased because deceased had killed his (Kagoma's) child, and the appellant "agreed that Katembeki should be killed because he had bewitched and killed Kagoma's child". She was very vague as to when this conversation took place, her evidence on this point, as recorded; being "A week or so before this incident (i.e. the killing) I heard Kagoma talking to the accused (appellant). Accused said that he would kill Katembeki—I heard this about three months before he actually died".

It was, again unfortunate that the trial Judge's attention was not drawn to the witness's deposition on this point for in the Magistrate's Court she gave an entirely different reason for the conspiracy. In that Court her sister, Kakoga, was a co-accused with the appellant, and Ninablanketi's evidence on this point was: -

"About a week before the killing of Katembeki, the first accused and Kagoma were sitting together outside the house. I heard first accused say to Kagoma, 'We must kill Katembeki. Kagoma said, 'Yes, he broke my leg. We will kill him and prevent him coming back to your sister'. I think he had intentions of marrying her. Kagoma then called second accused. I was in the house. I was able to hear everything. They did not try to drop their voices. I also went out when my sister went out. We both went up to the two men. They chased me away. I went back into the house and listened to what was said. Kagoma to my sister 'We are going to kill Katambeki and prevent him from marrying you. He is a dog', My sister said nothing. She then returned into the house. She then told me that they were going to kill her husband. I said, 'It is up to you. But if he is killed, you may also be killed.' She was sad. I think she did not want him to be killed."

It is true that in answer to the Magistrate, she subsequently said "Kagoma had a child which died. There was a belief that Katembeki had bewitched it. There is also a belief in the village that Katambeki had killed my father"; but she did not suggest that this was the real reason for the killing of Katembeki.

The case for the prosecution rested almost entirely on the evidence of these three children and the question of their credibility was of the utmost importance. The trial Judge and the assessors (who were both of the opinion that the appellant was guilty) had the advantage of hearing and seeing the witnesses and, although the learned Judge does not specifically refer to the point in his judgment, it may be presumed that his acceptance of their evidence was determined to a great extent by their demeanour. But, as was pointed out by Lord Greene, M. R., in Yuill v. Yuill (C. A.) (1945) 1 A. E. R. 183 at page 189 an impression as to the demeanour of a witness ought not to be adopted without testing it against the whole of the evidence of the witness in question.

The appellant was represented by counsel at the trial and we entirely fail to understand why these discrepancies and contradictions were not put to the witnesses or brought to the attention of the Judge and assessors. This Court has frequently said that it will look at the depositions when it considers that the interests of an appellant and of justice are thereby served and, having done so in this case, we are far from satisfied that, had these points been presented to the mind of the trial Judge or the assessors, they would necessarily still have accepted the evidence of these three children.

There are a number of other points in the case for the Crown which have caused us uneasiness. The boy Hitira said at the trial that before the assault on the deceased, the appellant said "they were going to kill the deceased and accused then hit him". In the Magistrate's Court he deposed that nothing was said before or after the killing. He also contradicted himself about the time of the killing. Another point is that if the flat of the panga was used, as the learned Judge supposes, and there was no cut on the deceased's head, as the medical witness opined, it seems improbable that there would be much, if any, blood on the blade and the story as to the appellant washing the panga with water some hours after the killing seems rather far-fetched.

The headman of the village giving evidence at the trial said: "I tried to arrest the accused and did so six days after Katembeki's body was recovered. On the day it was dug up accused disappeared and was away for six days. When he came back he gave himself up. I told him that I was arresting him for killing Katembeki: he said nothing". The headman denied that appellant's employer had asked his permission to send appellant to Ruwanda. It is remarkable that this witness was not cross-examined on his deposition in which he is recorded as having said "Six days" before I arrested him I had sent him with a letter to Ruwanda". If that were true, it disposes entirely of the suggestion that the accused "disappeared" because of the disinterment of the body.

The witness Kariayango, a friend of the deceased who first reported his disappearance to the police, said in examination-in-chief, "Katembeki told me that Kagoma had once chased him with a spear and also that the accused (appellant) and another person were arranging to kill him". In our opinion this evidence was wrongly admitted and was gravely prejudicial to the appellant. Counsel for the Crown has suggested that it was admissible by virtue of seciton 32 (1) of the Indian Evidence Act as a "statement made by a person as to the cause of his

$\mathbf{1}$

death, or as to any of the circumstances of the transaction which resulted in his death¹⁷. We do not agree that it can be brought within either limb of this provision; there is no evidence as to when the statement was made but it was certainly not a "dying declaration" made after the attack on the deceased, nor, as Crown Counsel admitted, is there anything to connect it with the transaction which resulted in Katembeki's death.

We are fortified in this view by the opinion of the Judicial Committee of the Privy Council in Swami v. King Emperor (1939), 1 A. E. R. 396 in which Their Lordships in considering section 32 (1) of the Indian Evidence Act said: "The statement may be before the cause of death has arisen, or before the deceased has any reason to expect to be killed. The circumstances must be circumstances of the transaction. General expressions indicating fear or suspicion, whether of a particular individual or otherwise, and not directly related to the occasion of the death, will not be admissible". The line of demarcation may not always be easy to draw but in the instant case the statement in question approximates more to the one held inadmissible in Rex y. Lyangia and Another (1938) 5 E. A. C. A. 122 than to the admissible one in Rex v. Kabateleine (1946) 13 E. A. C. A. 164.

The defence put forward at the trial was an alibi based upon the appellant's journey to Ruwanda, which the learned Judge rejected as not covering the date of the killing. It may be that this was rightly rejected though we would observe that there is no precise evidence as to the date of death and we have been quite unable to ascertain from the record how the learned Judge arrived at his conculsion that the appellant did not leave his village until nine days after Katembeki had been killed.

But, however that may be, the essential question is not the truth or untruth of the defence, but whether the case for the prosecution was proved beyond reasonable doubt, and after a very careful consideration of the record, we are not satisfied that it was. As we have said, the case rested almost entirely upon the credibility of the three witnesses, Hitira, Ninablanketi and Mukakimuno, and in our opinion the quality of their evidence was such that the trial Judge and the assessors should have hesitated to accept it. We think indeed that had the attention of the learned Judge been directed to the discrepancies and contradictions to which we have referred above, besides other less important ones which appear on the record, he would have concluded, as we do, that the prosecution had not discharged the onus laid upon it and would have acquitted the appellant.

For these reasons we allow the appeal, quash the conviction and sentence of death and direct that the appellant be forthwith set at liberty.