Rex v Chepsiror (Criminal Appeal No. 111 of 1940) [1940] EACA 22 (1 January 1940)

## COURT OF APPEAL FOR EASTERN AFRICA

Before WHITLEY, C. J. (Uganda), WEBB, C. J., and WILSON, J. (Tanganyika)

REX, Respondent, Original Prosecutor

CHEPSIROR ARAP TANUI, Appellant, Original Accused Criminal Appeal No. 111 of 1940

## (Appeal from decision of H. M. Supreme Court of Kenya)

Criminal procedure—Evidence—Trial for murder—Statement by dying person recorded in writing extra-judicially by a magistrate—Admissible if proved by the magistrate who recorded it being called as a witness—Indian Evidence Act. section 32.

The accused was charged with murder contrary to section 186 of the Penal Code. One of the witnesses for the prosecution was District Officer and a Second Class Magistrate at Eldoret. This witness gave evidence to the effect that he had visited the deceased in the hospital at Eldoret and had there recorded a statement by the deceased. Before taking the statement he had told the deceased that he was in the presence of a magistrate, and warned him to speak the truth. After making a record of the statement he read it over to the deceased, but the deceased did not sign it.

Held (8-8-40).—The written record of the statement, when proved by calling as a witness the magistrate who recorded it, was properly admitted in evidence at the trial. Appellant absent, unrepresented.

Smith for Crown.

JUDGMENT (delivered by WHITLEY, C. J.).—This is a clear case and the evidence amply supports the conviction.

Crown Counsel raised the question as to whether a statement by the dying man recorded extra judicially by the magistrate Mr. Leslie was properly admitted in evidence. We have no doubt that it was admissible under section 32 of the Evidence Ordinance. Reference to the English cases, particularly R. v. Tranter and Reason (1 Strang 499), R. v. Gay (7 C. & P. 230) and R. v. Trowter (1 East P. C. 356) makes it clear that if the statement is reduced to writing by the magistrate at the time it is made, the written document is the best evidence even though not signed by the dying person. The law applicable here and in India is we think correctly stated in Woodroffe and Ameer Ali, 9th Edition, on page 334, as follows:-

"If the statement be not taken down in the presence of the accused and as a formal deposition it will none the less be relevant under section 32 but before it can be admitted in evidence it must be proved to have been made by the deceased: it is not rendered admissible without such proof because it was taken down by a magistrate. The writing made by the magistrate cannot be admitted to prove the statement of the deceased without making it evidence in the ordinary way by calling the magistrate who took it down and heard it made. If the magistrate be called to prove it he may either speak to the words used by the deceased, refreshing his memory with the writing made by himself at the time the statement was made; or he may speak to the writing itself as being an accurate reproduction of what the deceased had said in his presence."

Section 228 of the Criminal Procedure Code has no bearing on the point. That only deals with a deposition duly recorded in the presence of the accused which under section 80 of the Evidence Act would prove itself without the magistrate being called just as any deposition in a Preliminary Inquiry proves itself. The appeal is dismissed.

$\mathbf{t}^*$