Rex v Abdi and Another (Cr. App. 122 &_123/1933.) [1937] EACA 67 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and Horne, J. (Kenya)

## REX (Respondent) $23$

## MUSA ABDI (Appellant) (First Accused) HALAKI BORU (Appellant) (Second Accused). Cr. App. 122 & 123/1933.

Indian Evidence Act, section 32-Admissibility of dying declarations.

Held (2-1-34).—That the Court of Appeal is not justified in taking into consideration the court of Appear is not justified in taking<br>into consideration the evidence of the dying statement of the<br>deceased, which, though actually admissible in evidence, was<br>rejected by the trial magistrate,

Accused absent, not represented.

The accused were charged with having murdered one Jama Adin on 17th April, 1933, in the Northern Frontier Province, and were tried by a Magistrate vested with powers under section 15 of the Criminal Procedure Code. No. 1 denied the charge and No. 2 admitted the offence. A plea of "not guilty" was entered in respect of the first accused, and a formal plea of "guilty" in the case of the second accused, but the Magistrate decided to record evidence against both accused. There was tendered at the trial evidence of statements made to witnesses by the deceased inculpating both accused, but the Magistrate rejected such evidence on the ground that he entertained a doubt in his mind as to its admissibility.

*Branigan*.—Each accused implicated the other. Submitted that the evidence was sufficient to support the conviction apart from the evidence rejected by the Magistrate of witnesses to whom the deceased had made statements in expectation of death.

The following is an extract from the judgment:—

"In this case we are of the opinion that we should not be justified in employing in aid of our finding the dying statement of the victim which, though actually admissible in evidence, the trial Magistrate said he rejected as he regarded it of doubtful admissibility."

$\hat{h}_{\pm 1}$

The appeals were dismissed.