[1955] EACA 262

#### APPELLATE CRIMINAL

### Before CONNELL, J.

## AMRIK SINGH s/o DASONDA SINGH AND DALJIT SINGH s/o DASONDA SINGH, Appellants

### ν. **THE QUEEN, Respondent**

# Criminal Appeals Nos. 58 and 59 of 1955

Criminal Law—Procedure—Evidence—Penal Code, sections 299 (1) and 270— Housebreaking and theft in one count-Whether contravention of section 135 (2), Criminal Procedure Code—Prejudice—Effect of false statement by accused—"Grave suspicion" becoming certainty—Submission of no case— Whether misdirection.

The facts appear sufficiently from the judgment.

Held $(26-4-55)$ .—(1) A joinder in one count of "housebreaking with intent" and "theft" is permissible but, even if not permissible, neither appellant had been prejudiced and the defect, if it existed, was curable under section 381 of the Criminal Procedure Code.

(2) The appellants had made statements which had been disproved and disbelieved by the magistrate and the effect was not merely that these false statements had been neutralized but had become of a substantive inculpatory effect. Guilt, however, could not be safely inferred from the false statements alone, unless the Crown had established, independently of the false statements, a prima facie case.

(3) Although a perusal of the record could be said only to convey a sense of very<br>deep suspicion against the appellants the actual hearing of the case and the seeing of the witnesses might easily have transformed such deep suspicion into such a certainty of guilt as would warrant the conviction. The magistrate's finding was therefore neither unreasonable nor against the weight of the evidence.

(4) The magistrate had not expressly found common purpose or design on part<br>of the appellants but such design was apparent from the record. This taken with the finding of a joint breaking and entering and a joint theft by both appellants enabled the Appellate Court to hold that the magistrate was entitled to convict.

Cases cited: R. v. Walker and Morrod, (1854) 6 Cox C. C. 310: R. v. Mzee wa Kabokia, (1932) 14 K. L. R. 156; R. v. Lovett and Hipperson, (1908) 1 Cr. App. R. 94.

Authority cited: Will's Circumstantial Evidence, 7th edn., p. 112.

O'Brien-Kelly for appellants.

Havers, Crown Counsel, for the Crown.

JUDGMENT.-The two accused; Amrik Singh and Daljit Singh, brothers, were convicted by the second class magistrate, at Nakuru, for housebreaking and theft on or about 15th August, 1954, contra sections, 299 (1) and 270, Penal Code and sentenced to three months' imprisonment with hard labour, on each count, to run concurrently and to pay compensation.

Ground 1 of the memorandum of appeal takes the point that the charge was in contravention of section 135 (2), Criminal Procedure Code, and such contravention prejudiced the appellants; I will deal with this ground after I have dealt with the facts and judgment.

Mr. Kelly, for the purposes of argument, conceded or, did not seriously contest, that it was open to the magistrate on the evidence to find (1) that between 13th and 17th August (or thereabouts) the complainant's (P. W. 1 Bhagat Singh) room was broken into, the padlock hasp being unscrewed but the mortice lock probably not in use (see P. W. 2's evidence); there is Bhagat Singh's evidence that he took the keys with him on 13th August, when he went to Mombasa, returning on 30th; (2) that the articles the subject of the charge, clothing and bed sheets, to the value of Sh. 535, were stolen between 13th and 30th August; (3) that on a certain date about the middle or 17th August the accused and two other Indians were in complainant's room without the complainant's consent or knowledge; (4) that the appel ants attempted to fabricate and in fact fabricated evidence of a false alibi in connexion with $(3)$ .

To elaborate the above, the geography of the premises is clarified by the sketch, exhibit 4; suspicions on the day in question were aroused on the part of Esar s/o Thomas' $(P. W. 2)$ , who was in the kitchen separated by a passage from P. W. I's room, he heard persons talking inside P. W. I's room and then saw them near a door beside a car in the front of the building; there were four some in the car, some outside; two of those persons were the accused; he saw no articles in their possession; he came out to see who they were when the car was starting and at the same time he went round the house to the front of the building and reported to Fonseca (P. W. 3) who was sick, at about 3 p.m. Fonseca promptly went on the verandah, saw the car being driven off and took its number, KBC 707. According to Fonseca, Esar s/o Thomas merely told him "some people" were in P. W. 1's room.

Esar s/o Thomas had not looked at the door of Bhagat Singh's room in the intervening days between the 13th to 17th but he did notice the room was padlocked on 13th August and he did notice that after he had seen the four persons on the afternoon in question the screws of the staple had been taken out and the padlock was hanging from the door. No report was made to the police until Bhagat Singh returned on 30th August and he himself reported.

Another Bhagat Singh (P. W. 7), testified that on 17th August (which according to the Crown must be the date of the offence) both accused approached him and borrowed his car KBC 707 at Nairobi stating "we intend to go to Nakuru". The car being returned to him at 7 p.m. This witness was entirely unshaken, though it should be observed that whereas Bhagat Singh stated that neither accused wore uniform, Esar s/o Thomas was definite that second accused was in K. P. R. uniform.

The first accused testified that he borrowed Bhagat Singh's car on 21st or 22nd August to take his brother's goods from one Natha Singh's house at Nakuru and he denies going to P. W. 1's house; he denies visiting P. W. 1 early in August and he denies that P. W. 1 told him he was going on leave. He particularizes that early in July he was with P. W. 1 and was handed over his brother's things from P. W. 1's house and took them to Natha Singh's. This is partially admitted by P. W. 1 though P. W. 1 states he fetched the things two days before 13th August.

Both accused say that they were at Rattan Singh's (D. W. 4) house on 17th August; Rattan Singh says they had breakfast with him on 17th August-that fact would not be inconsistent with Bhagat Singh's (P. W. 7) evidence. Nor, as the magistrate held, if it be believed that the first accused went to Nakuru on 22nd August, is that inconsistent with both having gone there on the 17th.

D. W. 2 admits staying with P. W. 1 five or six days before he went on leave but denies that P. W. 1 told him he was going on leave. He testifies that he told his brother (Accused 1) to take his things to Nairobi on 21st or 22nd; he had previously asked his brother to take his things from P. W. I's house, apparently about the beginning of August; in his statement to the police, moreover, second accused denies leaving any of his things in complainant's house:

As the magistrate also remarked, the first accused testified he came only once in August to Nakuru though he told the police he had been there twice.

I have thought fit to elaborate on the facts as it is obvious that the magistrate had very good grounds for concluding that the two accused prevaricated on a number of points and was fully justified in rejecting their alibi and in accepting Esar $s/o$ Thomas' evidence so far as it went.

The issue is have the Crown made out their case against the accused?

The effect of false statements by accused is summarized in Will's Circumstantial Evidence, 7th edn. page 112, "All such false, incredible or contradictory statements, if disproved, or disbelieved, are not simply neutralized, but become of a substantive inculpatory effect. Even in such circumstances however the guilt cannot be safely inferred unless such a substratum of evidence, direct or circumstantial, has been laid as creates an independent prima facie case against the prisoner".

It will be useful I think to refer to three decisions illustrating the respective aspects of "no foundation" for a case on the one hand and "a grave suspicion" ripening into a moral certainty of guilt on the other hand.

On the first aspect I cite R. v. Walker and Morrod, (1854) 6 Cox C. C. 310. In that case Walker, who had worked six years for his employer, left his employment on 9th November, having had undoubted access to a brass foundry; Morrod had worked for the same employer in September and also had access to the foundry but had never been seen therein; on 9th November, Morrod (who was prother to Walker's wife), offered 6 lb. of brass for sale in Beverley; Morrod stated that Walker's wife had given it to him to sell and that Walker had left his wife and gone to the West Riding. Morrod was acquitted of receiving, but Walker convicted of theft. It was held by Jervis, C. J., "We are clearly of opinion that there was no evidence at all against Walker and that the case as against him ought not to have been submitted to the jury".

On the other aspect I refer to R. v. Mzee wa Kabokia, (1932) 14 K. L. R. 156, where occurs the following passages: -

"The case put forward by the Crown is purely circumstantial and we are unable to agree that exclusive opportunity has been proved in respect of the accused."

"A careful perusal of the record may be said only to convey a sense of very deep suspicion against the accused, but it is not difficult to realize that the actual hearing of the case and the seeing of the witnesses may easily have transformed such deep suspicion into such a certainty of guilt as would warrant the conviction."

"In view of the decision in R. v. Lovett and Hipperson, (1908) Cr. App. R. 94, and another we are of opinion that there was sufficient evidence before the learned magistrate to testify him in leaving the case to himself as jury to decide, and we cannot say that his finding as a jury is unreasonable of against the weight of the evidence." $\mathcal{L} = \mathcal{L} \mathcal{L} = \mathcal{L}$

Ξ.

Finally R. v. Lovett and Hipperson (supra). $\cdot$

The facts bear at any rate some slight similarity to the facts in the case now under appeal: certain piping was found missing from a closet at the corner of a yard at 4 p.m.; the two accused with two other persons were in the yard from about 2 to 4 p.m.; the pipe was in the closet at 1 p.m. but was found missing at 4 p.m.: the argument was put up that the piping could have been missing between 1 and 2 p.m. but that argument did not find favour. Both Darling, J., and Phillimore, J., asked why the accused did not call the other two men and that failure militated against the two accused. None of the four men were seen carrying away the piping. Both accused were convicted of theft.

The Lord Chief Justice stated, "There were many cases in the Criminal Courts where the person who was alleged to have stolen property was not seen to take it away, and there were necessarily cases where persons were convicted on circumstantial evidence". "There were two other men in the yard whose names the appellants had not given. The Court could not understand the reason given for the reluctance of the appellants who were called at the trial, to give the names of those men". "It was impossible for the Court to retry this case." "It was plain that the evidence given by the appellants was regarded by the jury as unsatisfactory, and that they thought they were in this yard for no proper purpose."

"There was no substantial misdirection."

In the instant appeal we have also the fact that if the two accused were in Bhagat Singh's house on the day in question for a lawful purpose they could have said so; furthermore they could have called the two other Indians in their company.

In the instant appeal there was plainly, in my view, a case made out by the Crown to go to the jury and I am not impressed with the argument of various alternative hypotheses and possibilities put forward by the learned advocate for the appellant; nor am I impressed with Mr. Miller's argument that there was no evidence of common purpose and common design; the magistrate did not, it is true, expressly find "common purpose or common design" but the evidence of such design is there on the record and the magistrate in fact found a joint breaking and entry and a joint theft by both accused. In my view and having regard to the facts and evidence and having had some assistance from the authorities the magistrate was entitled to arrive at the conclusion which he did; nor can I find that the magistrate misdirected himself.

Finally, with regard to ground 1 of the memorandum of appeal I am of opinion that applying the well-known maxim of "stare decisis", a joinder in one count of "housebreaking with intent" and "theft", is permissible; and that even if it is not permissible neither of the appellants has been prejudiced and the defect if it exists is curable under section 381 of the Criminal Procedure Code.

For the reasons I have stated I see no sufficient ground for interfering with the conviction by the magistrate; the appeals against convictions and sentences are dismissed.