Rex v Nathu (Criminal Appeal No. 236 of 1948) [1949] EACA 32 (1 January 1949)

### 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) $\mathbf{v}$

# . TRIKAMJI NATHU, Appellant (Original Accused) Criminal Appeal No. 236 of 1948

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

Criminal Practice and Procedure—Appeal to High Court from conviction by a Subordinate Court—Order for additional evidence on appeal—Whether order proper—Uganda Criminal Procedure Code, section 317 (1).

The appellant was convicted in the District Court at Mbarara of unlawfully dealing in gold contrary to section 99 of the Uganda Mining Ordinance.

In the course of the trial the prosecution produced as exhibit 1 a substance proved to be gold but owing to a gap in the chain of evidence failed to prove that exhibit 1 was found in the appellant's shop.

The learned Judge in appeal found that it was necessary to have additional evidence and acting under section 317 (1) of the Criminal Procedure Code directed the Subordinate Court to take additional evidence "strictly limited to the identification of exhibit 1 and receiving into custody and handing on the exhibit", and adjourned the appeal.

At a later date, with the additional evidence before the Court the appeal was dismissed.

The appellant then appealed to the Court of Appeal.

Held (20-4-49) (1) That in the circumstances the order directing the taking of additional evidence was not a proper exercise of the discretion given to the Court by section 317 (1) of the Criminal Procedure Code.

(2) That section 317 (1) of the Code may not be used to allow a prosecution to retrieve a position lost by its own default.

R. v. Sirasi Bachumira, 3 E. A. C. A. 40 cited and followed; R. v. Yakobo Isairi Busigo, 12 E. A. C. A. 60 distinguished.

Appeal allowed.

**Baerlein** for the Appellant.

#### Dreschfield, Acting Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—The facts surrounding the appeal are somewhat exceptional and had better be stated in full. The appellant was charged with his son Harilal Trikamji before a Magistrate's Court in Uganda with an offence against section 99 of the Uganda Mining Ordinance, namely for dealing in the mineral gold, not being the holders of a licence to deal in such mineral. Both were found guilty, the appellant was sentenced to four. months' imprisonment with hard labour and the son was bound over to come upfor sentence within a year.

The appellant appealed to the High Court of Uganda in its appellate jurisdiction and the point was taken that the prosecution had not proved that the substance found in the appellant's shop was in fact gold. A substance which the prosecution proved to be gold was produced before the Magistrate and marked exhibit 1, but in appeal the defence submitted that owing to a lacuna in the chain of evidence the prosecution did not prove that exhibit I was found in the appellant's shop.

It is abundantly clear to us from our perusal of the Magistrate's record as it must have been also to the learned Judge in the Court below that this was the case and that on the evidence before the Magistrate at the close of the case for the prosecution he should not have convicted. The learned Judge in appeal, how-<br>ever, called in aid the provisions of section 317 (1) of the Criminal Procedure Code and made an order directing the Subordinate Court to take additional evidence "strictly limited to the identification of exhibit 1 and receiving into custody and handing on that exhibit". Against that order, and before the taking of the additional evidence the present appellant appealed to this Court but his appeal was dismissed on the ground that no right of appeal lay against an order made by a Judge under section 317. (Criminal Appeal No. 153 of 1948.)

Subsequently the matter again reached the High Court of Uganda when the same learned Judge with the additional evidence before him, dismissed the appeal against conviction and enhanced the sentence imposed on the appellant by two months. The appellant now appeals against this judgment. Although it was not considered by the defence that the additional evidence did establish the appellant's guilt, we consider that on it the learned Judge quite properly dismissed the appeal against conviction.

The question that arises however is whether the order directing the taking of further evidence was a proper exercise of the discretion given to the Court by section 317 (1) of the Uganda Criminal Procedure Code,

The section is as follows: —

"In dealing with an appeal from a Subordinate Court, the High Court if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a Subordinate Court."

This section is a counterpart of section 428 (1) of the Indian Code of Criminal Procedure. It is a fair summary of the notes given by Sohoni (13th edition at p. 918) to say that the Indian Courts have consistently held that the section should not be applied where there is no evidence legally capable of sustaining the charge or where the entire evidence falls short of sustaining the charge. This seems to us to be stating such an elementary principle of justice that we do not consider it necessary to review the Indian decisions in detail.

In Rex v. Sirasi Bachumira, 3 E. A. C. A. 40 this Court refused to send back a case for retrial or for the taking of further evidence where the prosecution in a murder case had failed satisfactorily to establish that the deceased as named in the information was the same person of the same name who had died in hospital as the result of a stab wound. The reasons for this Court's refusal in that case are worth stating.

'Counsel also suggests that in the interests of justice we should send back the case for a retrial or for the taking of such evidence. We have of course power to do either, but what the Crown actually requires is the admission of evidence to prove the fact of death and nothing more, and in our opinion additional evidence should not be taken to fill a gap in the prosecution's case. The Crown when it frames its information ought to have its case complete, and it has no ground of complaint on appeal when it appears that it has failed or omitted to prove an essential fact, especially when it had the means to do so."

The learned Judge in the Court below referred to this case in his reasons for allowing additional evidence to be taken but sought to distinguish it on the ground that in the matter before him he was seeking for additional evidence merely to elucidate evidence already on the record. In support he relied on the case of Rex v. Yakobo Isairi Busigo, 12 E. A. C. A. 60 where this Court allowed additional evidence to be taken. In that case additional evidence was called for from persons who had already given evidence or whose depositions had been read at the trial, and we cannot agree with the learned Judge in the Court below

that the present case falls within its ambit. In the Busigo case this Court emphasized the care which must be taken before exercising the power of calling for additional evidence and it carefully distinguished the case before it from the facts in Rex v. Sirasi (supra). On the facts in the present case we have no hesitation in saying that they are plainly distinguishable from the circumstances which led this Court to allow additional evidence in the Busigo case and scarcely distinguishable from the facts on which this Court refused to allow the application in Rex v. Sirasi.

From the reasons given by the learned Judge for his order it is quite clear that he regarded the evidence of Sub-inspector Oneyma who had handled the substance found in the shop and had passed it on to a European police officer as necessary in order to sustain the conviction of the appellant. The learned Judge was quite right in so thinking but how he was able to regard this as not constituting a gap in the prosecution case we are quite unable to follow. Sub-inspector Oneyma should have been called and could have been called, and if section 317 (1) can be used to allow a prosecution to retrieve a position lost by its own default, the door would be opened wide to the gravest abuses. There is ample authority both in India and East Africa to support the view that the section must not be used and in our opinion the learned Judge erred in so using it in the present case. We accordingly allow the appeal and quash the conviction entered into against this appellant in the District Court of Ankole. It follows that the sentence of six months' imprisonment imposed by the learned Judge in the Court below is set aside. The appellant is discharged from his recognizances and set at liberty.