Rex v Hirji and Others (Criminal Appeals Nos. 32, 33 and 34 of 1946) [1946] EACA 32 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

## (1) RAMJI HIRJI, (2) GIRJASHANKER KALYANJI, (3) MOHANLAL ARJAN, Appellants (Original Accused Nos. 1, 2 and 3)

## Criminal Appeals Nos. 32, 33 and 34 of 1946

(Appeals from decision of H. B. M. High Court of Zanzibar)

Criminal Law-Murder-Common design-Penal Decree, Section 21 (Zanzibar) -Unsworn statement by co-accused—Admissibility against co-accused— Weight.

At about 8 p.m. on 12th July, 1945, suspicious noises were heard coming from the house of the deceased. The house was entered and inside a room dimly lit lay the body of the deceased. It had several superficial abrasions and one superficial cut. The disturbed condition of the room suggested that a struggle. had taken place and the deceased was found to have died of strangulation. In an inner room of the same house the appellants and a native were found. All four bore either bodily injuries or traces of blood. There was no one else in the house and no one was seen entering or leaving the premises. There was nothing to show who of the four persons in the house was the actual killer. The three appellants were convicted of the murder of the deceased.

Held (5-3-46)—(1) That the evidence established beyond doubt that the deceased had met his death by strangulation at the hands of one of the four persons found in the inner room either acting alone or with the assistance of one or more of the others.

(2) That the evidence established a presumption of a common purpose to assault the deceased but not a common purpose to strangle or kill or cause grievous harm.

(3) An unsworn statement by an accused inculpating a co-accused but not amounting to a confession cannot be taken into consideration against that co-accused.

(4) When such a statement amounts to a confession it may under section 30 of the Evidence Decree (Zanzibar) be taken into consideration against a co-accused although it has not the force of sworn evidence but it has to be classed as accomplice evidence requiring corroboration.

Appeals allowed.

Conviction of Appellant 2 quashed.

Convictions for assault causing actual bodily harm substituted for convictions of murder against Appellants 1 and 3.

Cases referred to: Kingori wa Cakuha and Kagiri wa Thumbi, Cr. Appeals Nos. 294 & 297 of 1945; Pakal Narayana Swami v. Emperor (1939) A. I. R. 47; R. v. Nirmal 22 All. 445 and Giddigudu v. R. 33 N. 46 (Woodroffe's Law of Evidence 9th Ed. p. 313).

Kaplan for appellants 1 and 3.

Burke (Trivedi with him) for appellant No. 2.

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by Sir NORMAN WHITLEY, C. J.).—The material facts in this case are shortly as follows. The deceased lived at Ibji Walji's shop in Miembeni on the Island of Pemba. He died of strangulation in a room at that shop about 8 p.m. on the 12th July, 1945. A witness Ghabesh was passing down the street when he heard a noise which he located as coming from Ibji's shop.

He described what he heard as follows: "It sounded as if a person had been caught and was making a gurgling sound ... I heard a noise... some people inside as if fighting. It was the voice of a man dying (illustrates by loud throat noises) and lasted three minutes. All that time I thought it sounded like a man being throttled. The last sound after about three minutes sounded like a dying sound". He said that the door was shut and he knocked. He does not say whether the door was locked or whether he tried to open it. Another witness Kassamali Shivji whose house was next door to Ibji's shop separated by a lane deposed to having heard a noise as if a man was being throttled and killed—a snoring sound. He heard it three or four times. He went into the street and saw Ghabesh there. People gathered and a whistle was blown. A neighbour Ratilal and a Police Sergeant Abdul Latif were able to force the door open with their hands. It had apparently been fastened with the usual wooden bolt from the inside. From the point of view of the defence it is important to appreciate that the evidence seems to leave it an open question whether or not the bolting of the door may have taken place between the time of the arrival of Ghabesh and the opening of the door by the police sergeant. The sergeant passed from the verandah into a room dimly lit by a hurricane lamp with the wick turned low. Inside on the ground he saw the body of the deceased. There was no one else in the room. There was blood and vomit on the floor by the body. A weighing scale was lying on its side. There was a broken bottle and a disturbed shelf and what Assistant Inspector Abdoo Gajian described as "general signs of a struggle". The door of an inner room was broken open and four men were arrested there, the three appellants who are Indians and a native named Abdulla. bin Hassan who was acquitted at the trial.

The medical evidence is important. The post mortem on the deceased revealed the following:-

"I found the deceased to be well-nourished, about thirty years old. I found bloodstained mucus at the nostrils. Superficial abrasion $\frac{1}{2}$ in. long over the lower sternum, and another $\frac{1}{4}$ inch long on the left side of the lower abdomen. Excoriation (or stripping of the skin) $\frac{3}{4}$ inch in diameter behind right shoulder. This might have been caused by force against a rough surface. He also had an abrasion $\frac{1}{4}$ inch long on right index finger. Superficial cut on inner side of the left palm. Three superficial abrasions on front of the neck, one on either side of the trachea, and the third over the trachea under the chin. These three abrasions were probably caused by finger nails. The injuries to the sternum and abdomen may have been caused by contact with hard surface, and that to the finger by rubbing against such surface. The cut in the palm must have been made by contact with something fairly sharp."

The cause of death was asphyxiation due to throttling. It would seem that the deceased had been subjected to other violence in addition to the actual strangulation.

There were no injuries on the first appellant but there were four stains of blood on his loin cloth.

The second appellant had a fresh scratch on his forehead and a superficial cut on his right index finger. The cut was consistent with biting by teeth. There was fresh blood on the palms of his hands and some blood on his clothing.

The third appellant had fresh scratching on the right thumb, left forearm, right ear and chest and some small blood stains on his clothing.

The fourth accused, the native who was acquitted, had no injuries but had some blood stains on his clothing.

The blood stains on all the clothing were not tested for human blood but it has not been suggested by the defence that they have any other origin. It is common ground that no one entered or left the house from the time when Ghabesh knocked on the door after hearing the curious sounds from inside the shop so that the conclusion that one or more of the four men found shut in the inner room was responsible for the killing would seem to be irresistible.

The evidence suggesting motive seems inconclusive. Deceased had a key on a string round his neck. In the safe which it opened were a large number of gold ornaments. Another key was found under a cushion which opened another safe containing some cash. More was found in a cupboard under this safe. The total cash was some Sh. 17,000 and the value of the gold ornaments about Sh. 89,000. The deceased was accordingly worth robbing but there was nothing to suggest that there had been any attempt to break open any safe or to steal anything, and 8 o'clock in the evening with neighbours wide awake and so near at hand that they could hear the sound of throttling would seem a most unlikely time to stage a robbery with violence.

There was evidence that the first appellant owed considerable sums of money. The second appellant owed some Sh. 800 for rent and goods, but there is nothing to suggest that the third appellant or the native, Abdulla bin Hassan, who was acquitted were in any need of money or had any ill-feeling against the deceased.

There was evidence that each of the three appellants had been in the habit of visiting the deceased at his house and that the first appellant was intimate with him. There was no evidence of any previous ill-feeling between the deceased and either of the appellants or the fourth accused.

At the close of the case for the prosecution it was established beyond doubt that the deceased had met his death by strangulation at the hands of one of the four persons found in the inner room either acting alone or with the assistance of one or more of the others. There was nothing to show which was the actual. killer. In asking for a conviction against all four accused the prosecution had to rely upon a common purpose. The law as to joint criminal responsibility is stated in section 21 of the Penal Decree as follows: -

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

The case as alleged against the four men found in the room was that in that house a man was found who from his injuries and the blood on the ground had clearly been the victim of an assault in the course of which he was strangled to death; that no one else was present in the house; that each of the four men bore either bodily injuries or traces of blood which showed that he must have taken part in the assault; that their shutting themselves up in that inner room was indicative of guilty knowledge; and that the irresistible inference to be drawn from this circumstantial evidence is that they must have formed a common intention to kill or at least to cause grievous harm to the deceased. Each of the four accused persons made a full statement at the trial, not on oath, seeking to explain his presence in the room and his conduct. The substance of these statements was shortly as follows.

The first appellant said that he was sitting with the deceased discussing the clove business when the third appellant came in drunk. Deceased tried to turn him out and they abused one another and exchanged blows. The first appellant tried to separate them but was himself knocked down and became dizzy. As he fell he heard footsteps as of some other person coming into the house. After about five minutes he recovered. He saw the deceased on the ground; called his name and got no reply. Someone dragged him into the inner room where he saw the other three accused. The second appellant who lived next door to the deceased said that he was leaving his house to go to the cinema when he heard a noise from deceased's house. He went in and saw people quarrelling and the second appellant raised the head of the deceased who was lying on the ground bleeding. Then he tried to get out but was pulled into another room by the first appellant. The third appellant stated that he was passing the house when he heard a noise as if something heavy had fallen in the house. He saw fighting inside and went in. There he saw the first appellant on the ground with deceased on top of him. He separated them but the first appellant got on top of the deceased who then kicked the third appellant. The second appellant then came in and asked what was happening. The first appellant shut the door leading into the street and then took him into the inner room where they waited. The fourth accused told a long and rather remarkable story about being asked by the third appellant to go with him to the house to carry loads. He did not implicate himself so that what he said did not amount to a confession and could not be taken into consideration as against his co-accused under section 30 of the Evidence Decree. Since he himself was acquitted it would serve no useful purpose to consider his statement in detail.

No witnesses were called for the defence. The assessors were of the opinion that all four accused were guilty of murder. The learned trial Judge convicted the three appellants but gave the native, fourth accused, the benefit of the doubt and acquitted him.

It is evident from the record that the case was tried with the greatest possible care. Every aspect of the case was fully dealt with in the learned Judge's summing up and we have derived the greatest assistance from his full and closely reasoned judgment. The appeal raises most difficult questions of joint responsibility. There are only two passages in either the summing up or the judgment to which counsel were able to take serious exception. The first occurs in his judgment when he has concluded his review of the prosecution evidence and $\overline{\text{}}$ observes : —

"In my opinion the circumstances in this case raise a very definite presumption on the prosecution evidence that the accused (which must mean all the accused) were responsible for the killing. It remains to be seen whether the accused are able to show whether their behaviour was compatible with their innocence."

With respect this seems to go too far. At that stage the accused had not made their statements so that there could be no question as to how far each tended to implicate himself or the others. The learned Judge seems to have overlooked the fact that the actual strangling which caused the death was the work of one person. Each of the accused was of course entitled to have the case against him considered on its own merits and since it cannot be shown which of the four strangled the deceased, all four could only be held equally and jointly responsible for the physical act of one if there was an unlawful common<br>purpose which could be irresistibly inferred from the evidence and if the killing by strangulation could be reasonably regarded as an offence of such a nature that its commission was a probable consequence of the prosecution of that purpose. There is certainly no evidence of a preconcerted conspiracy to attack or to rob the deceased so that any finding of a common purpose must be based upon the evidence as to the conduct of the accused on that evening and as to the incriminating marks and blood stains found upon them. It seems to us that

the circumstances brought out by this evidence do go so far as to establish a presumption of a common purpose to assault the deceased but not a common purpose to strangle or kill or cause grievous harm. The whole of the evidence seems perfectly consistent with a quarrel ending in a fight with hands in which three of the participants intended nothing more than simple hurt and never intended, connived at, or assisted in the act of strangulation committed by the fourth member of the party. It is important in this connexion to bear in mind that none of the party were armed and no weapon of any description was used. It would have been different if each had been armed with a revolver or a panga the carrying of which might well be enough to fix each with joint responsibility for the use of such weapon by one of the others. A somewhat similar point was considered by this Court earlier in the present session in the case of King<sup>Ori</sup> wa Cakuha and Kagiri wa Thumbi Criminal Appeals No. 294 and 297 of 1945. In that case the evidence as to a common purpose to assault was stronger than in the present case, being direct as well as circumstantial, but the same difficulty arose as to responsibility for strangulation. We extract the following passage from the judgment: —

"The medical evidence establishes that the beating with sticks did not cause such injuries as would have resulted in death. All who took part in the beating must of course be guilty of assault causing bodily harm, but if one of them of his own initiative and without any prearrangement killed the common victim by strangulation the others could only be held to be jointly responsible with him for the killing if they aided or abetted the killer in the strangulation within the meaning of section 22 $(c)$ of the Kenya Penal Code or, if they were acting in prosecution of a common purpose, within section 23. In this respect our Code would seem to be completely in accord with the dictates of sound common sense. If two persons, A. and B., agree together to inflict a sound beating upon C. who has offended them and, in the course of their joint assault, A. seeing a knife handy picks it up and cuts the throat of C., it would clearly be grossly unfair to hold B., who had never contemplated anything more serious than a beating, equally responsible with A. for the killing unless there is clear evidence that B. actively associated himself with the use of the knife, for example, by counselling A. to use it. or by holding the victim whilst A. cut his throat. Section 22 $(c)$ reads:-

'When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say— $\frac{1}{2}$

(c) every person who aids or abets another person in committing the offence.'

The offence under consideration in the present case is the killing by strangulation by an unidentified member of the assaulting party. That the two appellants were present is established by the evidence but mere presence without participation is not sufficient. They certainly assented to and enthusiastically took part in the beating with sticks, but we can find no evidence whatsoever that either of them had any prior knowledge of or in any way connived at or assisted in the act of strangulation. Accordingly we hold that the case against them does not fall within section 22 $(c)$ .

Section 23 reads as follows: —

'When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.'

Applying this section to the facts of the present case there is no doubt that the two appellants, with others, did form a common intention to prosecute an unlawful purpose in conjunction with one another, namely to beat up the Nandis, and that in the prosecution of such purpose the offence of murder by strangulation was committed by one member of the party. but we cannot agree that killing by strangulation was an offence of such a nature that its commission was a probable consequence of the prosecution of the purpose to beat up with sticks so as to make all members of the party equally guilty of the offence of murder within the meaning of this section.

It follows that in our opinion the convictions for murder cannot stand. The appeals are accordingly allowed and we quash the convictions for murder and substitute therefor convictions under section 245 for assault occasioning actual bodily harm."

Applying the same principles here we find that giving the fullest value to the evidence as to injuries and blood on one or other of the four accused and as to their being found shut in the inner room it is not sufficient to raise a presumption of such a common purpose as to make all equally responsible for the killing irrespectively of which one actually committed the act of strangulation.

The second passage in the judgment which was attacked by Counsel occurred when the learned Judge was discussing the case of the first appellant and $said: -$

"I have not attached weight to the statements of the other accused in so far as they tried to inculpate him (presumably No. 1) or each other except in so far as they are corroborated by the prosecution evidence."

The learned Judge had earlier in his summing up referred to the necessity of corroboration in the case of accomplice evidence and since there is no suggestion that any of the prosecution witnesses were accomplices it would seem that the accomplices whom he had in mind were the accused and reading the two passages together the only reasonable meaning which emerges is that the learned Judge was under the impression that if one of several co-accused makes a statement tending to implicate the others that statement may be taken into consideration against the other accused in so far as it is corroborated by independent evidence. That of course is not the law. An unsworn statement is not evidence and accordingly can only be used against a co-accused if it falls within some special provision of the law of evidence. The relevant section of the Evidence Decree is section 30 which provides that a "confession" may be taken into consideration against a co-accused. This section creates an exception to the ordinary rules of evidence and must be construed strictly. A statement by one co-accused exculpating himself and inculpating others is not a confession. In Pakala Narayana Swami v. Emperor (1939) A. I. R. 47 the Privy Council defined confession thus: $-$

"The word 'confession' as used in Evidence Act cannot be construed as meaning a statement by an accused 'suggesting the inference that he committed' the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed,"

If a statement does amount to a confession as above defined it may under section 30 be taken into consideration against a co-accused although it has not the force of sworn evidence and does not do away with the necessity of other evidence (see R. v. Nirmal 22 All. 445 and Giddigudu v. R. 33N. 46 and Woodroffe's Law of Evidence 9th Ed. p. 313). It is then, when being a full confession, it is considered as against a co-accused, that it has to be classed as accomplice evidence requiring corroboration.

The statements of the four accused in the present case were all most definitely self-exculpatory and as such could not possibly be regarded as confessions, and no part of them, whether corroborated or not, could be used under section 30 or at all against any co-accused.

Accordingly there was either a misdirection or misreception of evidence and in whichever light one regards it the question arises whether such misdirection or misreception is necessarily fatal to the convictions. The test laid down by section 366 of the Criminal Procedure Code as to the effect of misdirection is whether such misdirection has in fact occasioned a failure of justice whilst section 167 of the Evidence Decree provides that improper admission of evidence shall not be ground of itself for a new trial or reversal of any decision if it shall appear that independently of the evidence improperly admitted there was sufficient evidence to justify the decision.

An analysis of the judgment reveals that the only part of the statement of the fourth accused which the learned Judge took into consideration as against his co-accused was his assertion that he was summoned by the third appellant, which assertion he took into consideration as against the third appellant, since it was corroborated by the prosecution witness Jabu. Inasmuch as the learned Judge found Jabu to be a truthful witness this assertion by the fourth accused adds nothing to the case establishing a common purpose against the third appellant and consequently he cannot be held to have been prejudiced by reason of that assertion having been improperly treated as admissible evidence against him. We are of opinion that the misdirection or misreception of evidence cannot have affected the result of the trial and that it did not occasion any failure of justice.

So far we have considered only the question of common purpose. To summarize our conclusions on this vital aspect of the case we are of the opinion, for the reasons already given, that the prosecution evidence established a prima facie case of a common purpose to assault the deceased but that no preconcerted conspiracy was proved and that there was not sufficient evidence to justify a presumption that all four accused were jointly responsible for the killing by strangulation. It remains to be considered whether any one of the appellants by his statement at the trial raised such a reasonable doubt as to his association with the common purpose to assault as would entitle him to an acquittal. We agree with the learned trial Judge that the defences put forward by the first and third appellants are completely unconvincing. They both admit being present during the attack upon the deceased and each attempts to fasten the blame upon the other. It is impossible to say on the evidence which of the two committed the act of strangulation but that both of them were jointly and criminally concerned in assaulting the deceased is the irresistible conclusion to which one is driven by the circumstantial evidence considered together with the attempted explanation which each put forward in his unsworn statement.

The position as regards the second appellant seems to us clearly distinguishable. There is nothing inherently improbable about his story of hearing sounds from this adjoining house and going in to find the deceased in extremis lying on the ground. The blood on the palms of his hands is consistent with his holding the deceased's head. He explaines his scratch as being caused by deceased and it is important to note that he does not say the deceased was already unconscious when he arrived. Being the closest neighbour he may have arrived on the scene first and just before Ghabesh and the other prosecution witnesses. The third appellant in his statement says that he (the second appellant) only arrived on the scene after the deceased had been assaulted and the second appellant is entitled to derive whatever benefit he can from whatever is said in his favour by his co-accused. We are of opinion that the second appellant's defence was such that he, like the fourth accused, should have been given the benefit of the doubt. We quash his conviction and order that he be set at liberty.

As regards the first and third appellants the convictions for murder are set aside and we substitute in the case of each of them a conviction for assault causing actual bodily harm contrary to section 238 of the Penal Decree and sentence each of them to two years' imprisonment with hard labour, the sentences to run from date of conviction: