[1950] EACA 396

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and Sir Enoch Jenkins, Justice of Appeal

# AHMED MOHAMED SAEED, Appellant (Original Accused)

## REGINAM, Respondent

## Criminal Appeal No. 46 of 1953

(Appeal from the decision of H. M. Supreme Court of Aden, Campbell, J.)

## Attempted murder—Intention—Distinction between Indian and East African Penal Codes—Indian Penal Code, sections 300-307.

The accused had been convicted of attempted murder contrary to section 307 of the Indian Penal Code. One of the grounds of appeal was that an intention to kill had not been proved against him.

*Held* (7-3-53).—While there might have been some substance in the submission that the accused<br>had not been proved to have intended to kill his nephew had he been tried under<br>English law or under the Penal Codes of the Eas provisions of section 307 read with section 300 of the Indian Penal Code, it was for the jury to determine whether, on the facts found by them, they could reasonably infer either<br>that the appellant intended to kill the child or that he at least knew that what he was doing was so eminently dangerous that he must in all probability cause death or such bodily injury as was likely to cause death and on the evidence before them it was impossible to say that the conclusion arrived at by the jury was not an eminently reasonable one.

Appeal dismissed.

No cases.

### Appellant absent, unrepresented.

Davies for respondent.

JUDGMENT.-The appellant was convicted of attempted murder by the Supreme Court of Aden. He was charged with this offence under section 307 of the Indian Penal Code, an enactment which applies in the Colony of Aden.

The case against the appellant alleged by the prosecution was that he had thrown his brother's son, a small boy of six years old, into one of the ancient tanks of Aden known as the Parsee or outside tank. This tank is approximately 52 feet in depth with a hard stoney base. There was no water in the tank. The main witness for the Crown was the boy himself who described how he had been thrown into the tank by this appellant with the assistance of another man. This man was the appellant's co-accused at the trial who was, however, acquitted by the jury, presumably because, in his case, there was no corroboration of the boy's story. As regards this appellant there was such corroboration because witnesses deposed to the fact that the boy had been seen in company with the appellant in the neighbourhood of the tank not long before the incident must have occurred, and there was also the extra-judicial statement made by the appellant to a Magistrate which he adopted in full at his trial. In his statement he admitted taking the boy to the tanks where he said he was plucked out of his hands by some inner thing.

The appellant has submitted a Memorandum of Appeal which is largely nonsense but does contain three points which merit consideration. We have already dealt with one of these points, namely the factor of corroboration. On this issue the learned trial Judge fully directed the jury on the necessity of caution and there is nothing more that need be said. The second point deals with the question of intention. The appellant submits that it has not been proved against him that he intended to kill his young nephew and that accordingly he has been wrongly convicted of attempted murder. There might be some merit in this submission had the appellant been tried with this offence under English law or under the Penal Codes of the East African territories. We are satisfied, however, that the learned trial Judge correctly directed the jury on this question in the light of the provisions of section 307 read with section 300 of the Indian Penal Code. It was for the jury to determine whether on the facts found by them they could reasonably infer either that the appellant intended to kill the child or that he at least knew that what he was doing was so eminently dangerous that he must in all probability cause death or such bodily injury as was likely to cause death. On the evidence before them it is impossible for us to say that the conclusion reached by the jury was not an eminently reasonable one. The appellant's third point is that the jury, without themselves viewing the tank, were not in a position to draw inferences as to his intention or knowledge. We are quite satisfied that there is nothing in this submission. In fact the question of a visit to the locus was raised at the trial but the members of the jury told the Judge that they all knew the place very well.

There is one other point not directly raised by the Memorandum on which we think perhaps something should be said. It occurs to us that when the appellant made his obscure reference in his extra-judicial statement to the effect that the child was "picked from his hands by some inner thing" he may have been trying to put forward a defence based upon accident. The learned trial Judge did not in specific terms put this possibility to the jury but even had he done so, or should have done so, we are satisfied that the jury must have rejected it, for the evidence shows that after the boy had fallen into the tank and was lying there unconscious, the appellant made off and made no attempt whatsoever to call for assistance. It is true that on the following day he went to the police and made a report. This action of his might quite properly be taken into account when assessing sentence but it does not alter the fact that his conduct on the day previous was altogether inconsistent with any theory of accident.

As regards sentence, the appellant has not applied for leave to this Court to appeal against the sentence imposed which in any case we consider was a most proper one. The appeal is dismissed.