Rex v Gordhan (Criminal Appeal No. 58 of 1948) [1948] EACA 25 (1 January 1948)

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and AINLEY, J. (Uganda)

# REX, Respondent (Original Prosecutor)

## KANJI GORDHAN, Appellant (Original Accused)

### Criminal Appeal No. 58 of 1948

### (Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Credibility—Manslaughter—Misdirection—Self-defence —Reasonable doubt.

Held (18-5-48).—That an accused person cannot be convicted merely because his evidence<br>is disbelieved either in whole or in part, if there arises from the evidence as a whole reasonable doubt as to whether the prosecution has proved that he committed an offence. Appeal allowed—conviction quashed, sentence set aside, appellant released.

Wilkinson for the Appellant.

#### Hunter, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—The appellant, who is an Indian trader in late middle age, was charged with the murder of another Indian in the High Court of Uganda. The learned trial Judge, because he disbelieved almost entirely the evidence given-by principal prosecution witness Kalvanji convicted the appellant, of manslaughter only and sentenced him to five years' imprisonment with hard labour. It has been submitted on behalf of the appellant that the learned Judge having rejected the evidence led by the prosecution as to the main features of the incident during which the stabbing occurred should have accepted the appellant's version that he was set on by the deceased and other Indians and that during his struggles to free himself the deceased was knifed probably by mischance by some one not the appellant.

We consider, however, that there was sufficient evidence both direct and circumstantial to justify the learned Judge's finding, with which the assessors agreed, that the appellant did in fact inflict the fatal stab wound, during the course of a chance meeting. Both the assessors, however, were also of the opinion that the action of the appellant in stabbing the deceased was an act of self-defence—on this point the learned Judge seems to have seriously misdirected himself when he stated in his judgment that the appellant in his evidence did not say that he was in fear of death or grievous harm—according to the record of the appellant's evidence which is before us he did at least say this: "Two other men came from behind the water tank and beat me with sticks I cried out 'They are killing me'" and again a little later in his evidence occurs this passage: "Girdhar then threw me forward, I tried to escape from him, I was afraid they would kill me".

It was in evidence which the Judge accepted that the appellant did receive a number of minor injuries. It is also not in dispute that during the struggle he was at least outnumbered by two to one and that his assailants were much younger men. The learned Judge's mind was no doubt influenced by the fact that neither he nor the assessors were able to accept that part of the appellant's story that the deceased received the stab wound at the hands of some one else. An accused person cannot, however, be convicted merely because his evidence is disbelieved either in whole or in part, if there arises from the evidence as a whole reasonable doubt as to whether the prosecution has proved that he committed an offence. The learned Judge came to the conclusion that it was safe to infer from such of the evidence as he accepted that the use of a knife must have been an unjustifiable act but he does not put forward very substantial reasons for this view. There was evidence that the other party had only sticks in their hands and the knife believed to have caused the wound was of a kind which a well-disposed person would not ordinarily carry about with him. There was, however, evidence that a feud existed between the deceased and his friends and the appellant's family and that on the very evening before there had been some kind of scuffle during which the appellant's brother had received a stab injury. It can hardly be suggested that the appellant armed himself with a knife on this occasion with a view to a retaliatory act on the deceased if occasion offered, for had this been so he would not have selected as a companion in the adventure, a man even older than himself who was half-blind and ran away as soon as the deceased's party appeared.

We have come to the view that once the learned Judge had rejected the main prosecution story he was left with insufficient material on which to base his finding, that the appellant's use of a knife must have been unjustifiable. If a doubt exists, as we think it does, the prosecution has not proved its case and the appellant is entitled to an acquittal.

We accordingly quash the conviction, set aside the sentence and order the appellant to be set at liberty forthwith.