[1955] EACA 354

### **ACOURT OF APPEAL FOR EASTERN AFRICA**

HBefore: SIRr. BARCLAY NIHILL (President), SIR. NEWNHAM VWORLEY! (Vice-President) and MACDUFF, J. (Kenya)

# ASHA DERIA, H. T. MUSA ABOKERIRER YUNIS, Appellant (Original Accused)

$\cdot$ $\mathbf{v}$

## REGINAM, Respondent

### : Criminal Appeal No. 175 of 1955

(Appeal from the decision of H. M. High Court of Somaliland, Robertshaw, Ag. J.) 'Evidence-Indian: Penal Code, section 300, exception 4-Depositions admitted by *itrial* Judge at trial-*Post-mortem* examination report as part of depositions.

The trial Judge based his decision that appellant had murdered the deceased on the evidence of two witnesses that the left ear of the deceased had been completely severed. There was other evidence establishing that the appellant inflicted two deep stab wounds on the deceased and that the appellant had suffered no injury. As to the ear, however, a post-mortem examination report noted only that the top part of the ear was cut. This report was put in at the preliminary investigation. At the trial the deposition of the medical witness given at the preliminary investigation was admitted in evidence as he was not available, but the trial Judge did not, himself look at the report.

By exception 4 to section 300 of the Indian Penal Code, which applies to Somaliland: "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner".

Held (22-7-55).-As, at the preliminary investigation, the medical witness had adopted his post-mortem examination report, it should have been regarded as a part of his deposition, and as the deposition had been admitted at the trial by the trial Judge, he should have read the post-mortem report as well, but, having regard to the other evidence it could not be said that trial Judge would have come to any other decision had he fully directed himself.

Appeal dismissed.

Todd for Appellant.

#### Brookes for Respondent.

JUDGMENT (delivered by Nihill (President)).—The appellant in this case, who is a woman, was convicted by the High Court of Somaliland of the murder of another woman who was her sister-in-law. The only point in this appeal which has caused us any difficulty is whether the learned Judge, when he came to consider whether, on the evidence as a whole, there was a possibility that the appellant's action in killing the deceased was within exception 4 of section 300 of the Indian Penal Code, which is an enactment which applies in Somaliland, had based his decision against the appellant relying on the fact that he accepted it as proved that the left ear of the deceased had been completely severed. There was evidence to this effect given by two of the witnesses who had seen the body shortly after the incident, but according to the post-mortem report which was put in at the preliminary investigation but not at the trial, and which we have looked at, it would appear that the statement of these witnesses amounted to an exaggeration. We say this because the medical officer in his report had noted only

a cut on the upper portion of the left ear. We feel sure that had the ear been completely cut off he would have put that down in his report. We do not know why the learned Judge did not himself look at the post-mortem report, because, having been adopted by the medical witness at the preliminary investigation, it should have been regarded as a part of his deposition, and as the deposition was admitted by the Judge at the trial, he should have read the post-mortem report: as well. To this extent, therefore, it can be said that the learned Judge did not direct his mind to the whole of the medical evidence available. Nevertheless, because of the other evidence which established beyond any doubt that this appellant inflicted two deep stab wounds on the deceased, one in the region of the heart and the other through the spleen, coupled with the fact that she herself suffered no injury whatsoever, we are not prepared to say that the learned Judge would have come to any other conclusion than the one he did, and he fully directed himself.

In spite of the fact that one of the assessors thought the appellant guilty only of culpable homicide not amounting to murder, we cannot say that in law the learned Judge came to a wrong conclusion, because save for the one instance noted above, we consider his judgment is unexceptionable.

The appeal is dismissed.