Rex v Kasanga (Cr. App. No. 77 of 1938.) [1938] EACA 120 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir JOSEPH SHERIDAN, C. J. (Kenya); KNIGHT-BRUCE, Ag. C. J. (Tanganyika); and HAYDEN, J. (Kenya)

REX. Respondent (Original Prosecutor)

**ABEDI BIN KASANGA, Appellant (Original Accused)** Cr. App. No. 77 of 1938.

Appeal from conviction by H. M. High Court of Tanganyika

Criminal law-Evidence-Hearsay-Statement by deceased person-

Indian Evidence Act, sec. 32 (1).

Appellant appealed from a conviction of murder of one S. Evidence had been admitted of statements of one B. made before his death that he, at the instigation of the appellant to shoot A, had shot S. mistaking him for A.

Held (10-8-38).—That a dying declaration is only admissible in evidence in cases. in which the cause of the declarant's death comes into question. (Appeal. allowed.)

Ross for the appellant.

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

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—A point was taken by Mr. Ross for the appellant which if decided in his favour must result in the appeal being allowed. Evidence of certain statements alleged to have been made by one Bushiri prior to his death was admitted at the trial and relied on by the learned Judge in support of the conviction. The evidence is to the effect that Bushiri, at the instigation of his brother the appellant to shoot one Ali bin Pondamali, shot the deceased Swedi bin Jarafu mistaking him for Ali bin Pondamali. The evidence in question may be said to be the nexus connecting the appellant with the murder and Crown Counsel fairly admitted, and we agree with his admission, that the evidence is all important to the Crown case. We shall therefore confine ourselves to the question as to whether this evidence was rightly admitted. It was argued by Crown Counsel that the evidence was admissible under section 32 (1) of the Indian Evidence Act. That section in so far as it is material provides that evidence of this kind is admissible. "When the statement is made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question." Such a provision is an exception to the rule excluding hearsay evidence. The question for us to decide is whether Bushiri is a person the cause of whose death comes into question in the present case. It appears clear that the statement alleged to have been made by Bushiri would not be admissible under English Law vide Archbold (29th Ed. p. 379) where it is stated that "dying declarations are only admissible where the death of the deceased is the subject of the charge and the cause of the death the subject of the dying

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declaration." To our view this is but another way of saying that a dying declaration is only admissible in cases in which the cause of the declarant's death comes into question. Counsel has been unable to bring to our notice any decision according to which the statement alleged to have been made by Bushiri is admissible in evidence; nor does our experience tell us of any such case. In the case before us the person the cause of whose death is in question is Swedi bin Jarafu and his death is the subject of the charge. We accordingly rule that the evidence of Moshi and Mwanakali reciting that Bushiri made certain statements to them prior to his death is not admissible. On this ruling the appeal must be allowed, the appellant acquitted and his release directed.