Rex v Bharaj and Another (Criminal Appeals Nos. 17 and 18 of 1945 (COnsolidated)) [1945] EACA 51 (1 January 1945)

## APPELLATE CRIMINAL

# Before SIR JOSEPH SHERIDAN, C. J., and BARTLEY, J.

#### REX. Respondent

$\mathbf{v}$

# (1) KARTAR SINGH BHARAJ, (2) NAZIR AHMED,

# Appellants (Original Accused Nos. 1 and 2)

## Criminal Appeals Nos. 17 and 18 of 1945 (Consolidated)

Criminal law-Practice-Previous statement made by a witness to the police-Right of defendant to have statement for cross-examination of 'witness-Indian Evidence Act, section 145—Admission of statement as evidence— Correct procedure.

The facts of the case appear fully from the judgment.

*Held* (11-5-45).—(1) A defendant is entitled to have a previous statement made by a witness to the police for the purpose of cross-examining him on it.

(2) When it is proposed to contradict a witness by reference to something recorded as having been said by him in a previous statement, his attention must be called to that part of his statement so as to give him an opportunity of explaining his meaning or denying that he made any such statement.

(3) It is only then that the previous statement may be admitted in evidence to contradict the witness's evidence.

Cases referred to: Rex v. Ziyaya 3 E. A. C. A. 31; Rex v. Chemulon Wero Olango 4 E. A. C. A. 46.

Shapley for the Appellants.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—The appellants were convicted by the Acting Resident Magistrate. Nairobi, Mr. Roberts, of an offence *contra* section 383 of the Penal Code particulars of which are as follows: -

"2. That you Kartar Singh and Nazir Ahmed on or about 14.11.44 at Nairobi in the Central Province corruptly gave Sh. 1,000 to Corporal T. E. Cunningham, a person serving under the Crown, viz. in the Royal Air Force, as a reward for showing favour to one Nand Singh in relation to the affairs of the Royal Air Force."

They were each dealt with leniently, being ordered to pay a fine of Sh. 2,000 and Sh. 500 the cost of the prosecution. The appeals have been consolidated. Subject to certain questions of law which we shall refer to in the course of the judgment the decision of the case mainly depends on questions of fact. There are undoubtedly unsatisfactory features in the case both as regards the investigation and the evidence which were appreciated by the Magistrate. The question is whether it has been shown that they are of such a nature as to render it unsafe to allow the convictions to stand.

According to the evidence of the prosecution, after the Air Force Corporal, Corporal Cunningham, had been approached by the second accused Nazir Ahmed on behalf of the first accused Kartar Singh, a trap, which was of such an imperfect nature as to be useless, was set. A search of Cunningham was made by

his Squadron Leader before he set out on his motor cycle to the house of Nazir Ahmed (as he said) and from which place he returned with notes to the value of Sh. 1,000 which he said he had obtained from the accused as the promised consideration for his securing that the proceedings against Nand Singh, the nephew of the first accused, should be dropped. The main difficulty confronting the defence is that however imperfect and useless the trap may have been, the fact cannot be disputed that Cunningham did hand over Sh. 1,000 to S. Ldr. Gurney. It is incredible that he should have sacrificed Sh. 1,000 of his own money for the purpose of getting the accused or anybody else into trouble. There is nothing to suggest that he had any grievance against either of the accused from whom, as Mr. Phillips submitted, he had received lavish hospitality. In his evidence Cunningham said (p. 15 of typescript) "My pay as a corporal in R. A. F. Police is about Sh. 7 a day. I have no private means. I've no reason to give up to £50 of my own money to support a false charge against accused." There can exist no reason to doubt this easily credible statement. But the defence contended that the money was supplied by enemies of the accused in order to get them into trouble. As to this the evidence does not support the submission, nor does it appear why Cunningham should lend himself to doing such a thing. Cunningham on whose evidence the case mainly rested was not a satisfactory witness, but this was fully appreciated by the Magistrate who referred to him in his judgment in the following terms: $-$

"Cunningham has not been as open as he might have been in several instances. For instance, it is impossible to believe him when he says he did not realize he was searching Nand Singh's house (p. 17, line 11-13) and also about the bolt, hinge and key obtained by Ratan Singh (p. 17); and I do not think much of him as a member of the S. I. B. if he cannot remember if these exhibits seized were among the items for which invoices were produced. I would not expect him to recall all the items of perhaps many invoices, but I surely do expect him to remember if the only three articles he found were accounted for by those invoices or not. Also his statement on p. 16, line 13-14, 'He did not ask Ratan Singh if he had any authority for the search.' Of course, he didn't ask him-why should he do so. He knew perfectly well that not only did Ratan Singh have no authority but he could have no authority."

We emphasize that despite the unsatisfactory features in the case the important fact, the production of the Sh. 1,000 by Cunningham to S. Ldr. Gurney remains unchallenged. And further, no reasonable explanation other than that given by Cunningham in respect of the matter, has been forthcoming. The Magistrate correctly appreciated that the incident of the Sh. 1,000 afforded substantial corroboration of Cunningham's evidence. He added that to a minor degree Cunningham was supported by the witness Cpl. Mowe, Despite the strictures passed on Mowe as a drunken person, the Magistrate was quite entitled to believe his evidence that the approaches were made by the accused to Cunningham and not conversely. His corroborative evidence as to this seems to us to be in accordance with the probabilities. Then there is the important evidence of Corporal Silver as to the telephone conversation which was believed by the Magistrate who said, "I accept Corporal Silver's version of the telephone con-<br>versation and not that of first accused which is without meaning." We need only say that the undisputed fact of this telephone message is further corroboration of Cunningham's evidence, unless it be that Silver was a party to a fabricated case against the accused, and of this there is not a tittle of evidence. When the evidence of Silver and Swayne with regard to the telephone message is accepted as true it affords corroboration of Cunningham's evidence that the message was a prearranged signal denoting that the object for which the bribe was to be given had been attained.

The defence endeavoured to destroy Cunningham's evidence as to the cheque for Sh. 750 the proceeds of which according to Cunningham were obtained from Nazir Ahmed's landlord and formed part of the Sh. 1,000. The defence case here was that the cheque was made out to Fernandez by Kartar Singh to oblige Nazir Ahmed and discharge his debt to Fernandez. It was sought by the Defence to establish that this was the true story and that Cunningham being aware of the transaction had adopted it. This explanation of the origin of the cheque was rejected by the Magistrate and we can perceive no reason for our differing from him. It does not appear that Cunningham would have had an opportunity of grasping the "Fernandez transaction" and we cannot see any possible reason for his making use of it to build up a false case. Much emphasis was laid by Mr. Shapley on the Magistrate's refusal to allow Cunningham's statement to the police to be put in. The Magistrate ruled "Refused unless and until English authorities in support can be quoted." Earlier in the trial when Asst. Supt. Poppy gave evidence that he had taken a statement from Cunningham and Mr. Shapley asked for its production the Magistrate ruled "Refused. He is coming as a witness." The position with regard to this application would not appear to have been understood by Counsel for the Defence. When he made the application in the first instance he was not entitled to have Cunningham's statement to the police admitted in evidence. Equally so he was not entitled to have it admitted on the second application. The Magistrate was distinctly handicapped in not being referred to any authority. The position with regard to this statement is as follows. It is provided by section 145, Indian Evidence Act that, "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." When counsel came to cross-examine Cunningham he was entitled to have his statement to the police for the purpose of cross-examining him on it. The practice to be followed is just the same as if the previous statement had been in the form of a deposition. In Rex v. Chemulon wero Olango, 4 E. A. C. A. 46 it was held, "That, when it is proposed to contradict a witness by reference to something recorded as having been said by him in his deposition, his attention must be called to that part of his deposition so as to give him an opportunity of explaining his meaning or denying that he made any such statement."

Having cross-examined Cunningham on his previous statement it was then for Counsel for the Defence to ask to have it admitted on the record for the purpose of establishing that Cunningham was not a reliable witness (Rex v. Ziyaya 3 E. A. C. A. 31). The incorrect procedure having been followed and so as to eliminate any prejudice to the accused we decided at the hearing of the appeal to admit the statement with a view to ascertaining whether any prejudice had accrued to the accused. Thereafter Counsel for the Crown and Defence were permitted to address arguments in the matter. Having heard arguments and considered the previous statement of Cunningham and compared it with his evidence our view is that had Counsel for the Defence had the statement when Cunningham was being cross-examined the result of the trial could not reasonably have been different. In substance the statement and Cunningham's evidence agree. The principal difference stressed by Mr. Shaply was that whereas Cunningham in his evidence denied having gone into Nazir Ahmed's house (p. 26, "I did not go into the house") in his previous statement he is recorded as having said, "We then went inside the house and I was given a glass of beer." Giving full value to this discrepancy we cannot think that it could possibly have affected the result. The Magistrate appreciated that Cunningham was not reliable in everything he said and at the time he denied in his evidence having entered the house he could

not have been aware of the defence of the "Fernandez transaction" being a main plank in the defence case. The very fact of Cunningham having stated previously that he did go into the house warrants an inference that he did not wish to conceal the fact. In short we are not prepared to reverse the Magistrate's decision on the ground that Mr. Shapley did not have the opportunity of cross-examining Cunningham on his previous statement.

We have found it difficult and at times impossible to understand the evidence particularly as to times and the sequence of events, but notwithstanding these difficulties the clear evidence as to essentials is of such a nature as must result in the appeals being dismissed.