Rex v Mumo (Confirmation Case No. 781 of 1939) [1938] EACA 158 (1 January 1938)

## CRIMINAL CONFIRMATION

## Before SIR JOSEPH SHERIDAN, C. J. and THACKER, J.

## REX, Prosecutor v.

## MUNYAMBO s/o MUMO. Accused Confirmation Case No. 781 of 1939

Criminal Law-Corroboration of tainted evidence-Official corruption-Penal Code, section 88 (1).

Accused was convicted on three counts of corruption contra section $88$ (1) of the Penal Code.

Accused, a Government hut-counter, had made entries in his register purporting to show that three women were dead, whereas in fact they were alive, and he was alleged to have received a bribe in respect of each of the false entries. His defence was that he entered the register in accordance with information given him by a headman. The evidence against the accused, apart from proof of the false entries in the register, consisted of that of persons who said they had given the accused bribes in consideration of his making the false entries and of others who were privy to the frauds.

Held (15-12-39).—That the fact that the accused had made false entries in his register was equally consistent with his defence as with the prosecution case and that consequently it could not be relied upon as corroboration of the rest of the prosecution evidence which was tainted.

(Convictions and sentences set aside.)

Accused in person.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—There were three counts, in this case, of corruption. The question which arises is whether the conviction on each charge can stand having regard to the nature of the evidence adduced by the prosecution.

On the first count the first prosecution witness Mumo is quite an accomplice. The second prosecution witness Kindo, clearly although perhaps not strictly an accomplice, gives evidence which is tainted in that he assisted the accused. That is the evidence on the first count.

On the second count Malala the third prosecution witness is again an accomplice. The fourth prosecution witness like the second gives evidence which is tainted in that he assisted in the affair. On the third count the fifth prosecution witness is an accomplice.

Up to this point the evidence against the accused is either the evidence of accomplices or is tainted. The question remains whether the evidence given by Mr. Drake with regard to each count is material corroboration. He testifies that the entries in the register are in the accused's handwriting. In our judgment this evidence is not corroboration on a material point.

The accused's defence is in short that he received the information upon which he entered up the register from the Asili, in accordance with the District Commissioner's instructions, and if it was incorrect, it was not his fault.

Were the evidence supported by the entry in the register showing that a woman who was alive was entered as dead and the entry was in the accused's handwriting then, in the absence of an explanation that might reasonably be true, that would be corroboration of the accomplices' evidence. But where, as in this case, the register is or may be consistent with the defence that the entry was made on representations of the headman Kitati that the woman was dead, then the position is different, for the register in such a case does not corroborate the commission of the offence charged in any way. At the lowest there must be a doubt on the point of which the accused must have the benefit. We agree with the statement of law on this point in Sachinder Rai v. King Emperor, I. L. R. Patna, October, 1939. Part X, 698, at 704:-

"The present was a case where there was no real corroboration of the girl's statement. The only suggested corroboration is, first, a statement of p.w. 3 that he had noticed the appellant Hafiz with others seeing the girl off at the railway station. He was not able to explain how he was sure that the appellant had gone to the station for that purpose-worse still he had not made this statement at all before the police or in the lower. court. It was a statement which deserved no credence whatever. Even, however, could it have been accepted, it did not amount to corroboration, because it was equally consistent both with the version of the prosecution and with that of the defence." The conviction, therefore, on each each count is quashed.