Rex v Gidaguy and Others (Criminal Appeals Nos. 154, 155 and 156 of 1942) [1943] EACA 8 (1 January 1943)

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

**REX.** Respondent (Original Prosecutor)

(1) GIDAGUY s/o BULUGTKE, (2) HAIDAHAU s/o GISUMUDA.

(3) HOTAY s/o GISOLO, Appellants (Original Accused Nos. 1, 2 and 3)

Criminal Appeals Nos. 154, 155 and 156 of 1942

Appeals from decision of H. M. High Court of Tanganyika

Criminal Law—Evidence—Unretracted confession by one accused—Admissibility as against other accused—Indian Evidence Act. Section 30.

The three accused were convicted at the trial of the murder of an unknown Nyatury. The evidence showed that the three accused had formed the common intent to kill any Nyaturu whom they might meet in revenge for the alleged killing of the first accused's brother by a Nyaturu. The first accused in an extra judicial and unretracted confession implicated himself and the second and third accused in the murder.

Held (18-1-43).—An unretracted confession made by one accused may be taken into consideration as evidence against any of his co-accused (Section 30 Indian Evidence Act). R. v. Sinyoa and another, 6 E. A. C. A. L. R. 155 referred to.

Appellants absent, unrepresented.

Stacey Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—Three Barabaig were convicted of having murdered a Nyaturu. The motive for the murder was that the first accused's brother had been killed by a Nyaturu, or at least he said that this was the case. The first accused whose case presents no difficulty announced after he had set out with the other two accused and the witness Giru to look for his brother, that he would kill a Nyaturu if he met one. He was as good as his word for the party falling in with an unfortunate Nyaturu he killed him. In his memorandum of appeal the first accused remains consistent for he says "I killed this man in revenge for my brother". The first accused's appeal clearly must be dismissed.

As for the second accused Haidahau the evidence of Giru, who on the facts of the case was not an accomplice, implicates him in a common purpose with the first accused to such an extent that the second accused is responsible for the murder if, as was the case, Giru's evidence was believed. The case of the third accused in so far as his criminal responsibility is concerned is identical with that of the second accused. It may also be considered as against the second and third accused that the first accused in an extra judicial confession implicated himself and the second and third accused in the murder, and his confession, which is unretracted, can in law of course be taken into consideration against Nos. 2 and 3 (S. 30 Indian Evidence Act), and it is significant and relevant that both Nos. 2 and 3 in their extra judicial confessions give practically the same description of the part they played as that ascribed to them by No. 1. It also appears, in the case of the third accused, Hotay, that in his evidence before the Committing Magistrate he admitted his complicity in the murder in the manner described by the witness Giru. In our opinion there is sufficient evidence, particularly that of Giru, corroborating the confessions of both Nos. 1 and 2 and implicating them in the murder. All three appeals are dismissed.

In conclusion, lest the learned trial Judge should be under the impression that every case of a retracted confession requires corroboration for a conviction to be had, we would refer him to the decision of this Court in Rex v. Sinoya and another, 6 E. A. C. A. 155, the headnote to which, in so far as it is material, reads: "The danger of acting upon a retracted confesion in the absence of corroboration must depend to some extent upon the manner in which the retraction is made: where the accused gives an account as to why he made the confession and why he retracted it the danger must be greater than in a case in which the accused gives no reason for denying his previously admitted guilt nor refers to the confession".

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