Mbuitu v Regina (Criminal Appeal No. 627 of 1951) [1952] EACA 312 (1 January 1952)

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## APPELLATE CRIMINAL

# Before DE LESTANG, J. and WINDHAM, J.

MUCHOKI s/o MBUITU, Appellant (Original Accused)

v.

#### REGINA, Respondent (Original Prosecutrix)

#### Criminal Appeal No. 627 of 1951

# (Appeal from decision of Resident Magistrate's Court at Nyeri, D. C. Kennedy, Esq.)

Corroborative evidence—Statements to Police—When admissible.

During the course of a criminal trial statements made to the police by the complainant and another witness were admitted in evidence before the witnesses: had been examined.

Held (26-2-52).—The previous statement of a witness may in certain cases be admissible in evidence to corroborate the evidence of the witness. It is only admissible in corroboration and can only be put in evidence after the evidence of the witness has been taken, not before.

Appeal allowed.

## Appellant absent, unrepresented.

Pearson, Crown Counsel, for respondent.

JUDGMENT.—The appellant was charged with shop-breaking contrary to section 301 (1) of the Penal Code (old section) and section 270 of the Penal Code, in that on the night of 11th/12th August, 1951, in Karatina Township, Nyeri District, in the Central Province, he did break and enter the shop of Mohamed Hassan with intent to commit a felony therein and did steal therefrom blankets, cigarettes and cash Sh. 500, all of a total value of Sh. 1,129, the property of the said Mohamed Hassan.

The learned Magistrate found that there was no evidence to connect the appellant with the breaking. He came to the conclusion, however, that the evidence clearly established that the appellant had in his possession about mid-September $5\frac{1}{2}$ cartons of King Stork cigarettes (approximately 2,750 cigarettes) which had been stolen from the complainant's shop by means of the breaking in during the night of 11th/12th August, 1951. Accordingly, he acquitted the appellant of shop-breaking, but convicted him of the theft of $5\frac{1}{2}$ cartons of cigarettes. As the theft could only have been committed by means of breaking, it is difficult to understand how the learned Magistrate could acquit the appellant of the breaking and still convict him of the theft. That could only be possible if a burglar, acting independently of the appellant, had broken in and the appellant had then appeared on the scene, and, seeing the door wide open, had entered and stolen the cigarettes—a most unlikely occurrence completely unsupported by any evidence. In view of the Magistrate's finding on the question of breaking, we do not see how the conviction for theft can stand.

On the facts found proved by the learned Magistrate, it would have been possible for this Court to find the appellant guilty of receiving stolen property knowing the same to have been stolen, contrary to section 317 of the Penal Code. Unfortunately, the findings of fact of the learned Magistrate are both founded on uncorroborated accomplice evidence and influenced by inadmissible evidence in the course of the trial. The witness Gakuu, upon whose testimony the case against the appellant largely rests, is, if not strictly in law an accomplice, in no better position than one, since he must have known, or at the very least suspected, that the appellant's possession of the cigarettes could not possibly be lawful. His evidence, therefore, should have been treated in all respects as that of an accomplice and required corroboration. The learned Magistrate held that he was not an accomplice, and in the event of his being one, found corroboration in the evidence of the second and third accused. The third accused, having been convicted of receiving some of the stolen cigarettes from the appellant, was clearly an accomplice himself whose evidence could not amount to corroboration of that of Gakuu. As for the second accused, although he was acquitted, he was clearly considered by the prosecution to be an accomplice, since he was charged with the offence and his evidence is no better than that of an accomplice.

In our view, therefore, the learned Magistrate misdirected himself in holding that Gakuu was not an accomplice, and further misdirected himself in finding corroboration of his evidence in that of the second and third accused. These misdirections alone would have been amply sufficient to justify the setting aside of the conviction. There is more, however, firstly, we note that the statements of the complainant and of Gakuu to the police were admitted in evidence before these witnesses had been examined. We can see no authority for this strange practice, which in our view is clearly wrong. The previous statement of a witness may in certain circumstances be admissible in evidence to corroborate the evidence of the witness (section 154, Indian Evidence Act). The statement is, however, only admissible in corroboration and can only be put in evidence after the evidence of the witness has been taken and not before. When it is sought to allow a witness to refresh his memory from a statement previously made in accordance with section 159 Indian Evidence Act, then the statement should not be tendered in evidence. Secondly, it would appear from the record that the appellant was not given an opportunity to cross-examine the other accused who gave evidence against him. This failure may well have amounted to a miscarriage of justice in the present case, and in any case renders the evidence of the second and third accused inadmissible against the appellant.

For these reasons, although we have strong suspicions that this appellant may be guilty of an offence, we have reluctantly come to the conclusion that he has not been proved guilty, and that the trial has not, for the reasons which we have given, been satisfactory.

The appeal is allowed, the conviction quashed, and the sentence set aside. The appellant will be released forthwith.