Rex v Sitonik (Confirmation Case No. 908/39) [1938] EACA 159 (1 January 1938)

## CRIMINAL CONFIRMATION

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

## REX. Prosecutor

v.

## SANGUTET ARAP SITONIK, Accused Confirmation Case No. 908/39

Criminal Law-Evidence-Confession to Chief-Indian Evidence Act.

Accused was charged of cattle theft. The most important evidence against him was a confession made to a Chief while he was in custody of tribal retainers. At his trial accused admitted that he had made the confession but said that he was drunk at the time.

Held $(15-11-39)$ .-(1) That the confession even if it had been made voluntarily was inadmissible.

(2) The confession being inadmissible no statement by the accused that he made it could make it admissible.

(Conviction and sentence set aside.)

Accused absent unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—Mr. Phillips has sought to support the conviction in this case on the ground that the confession on which it rests was a voluntary confession, the accused's witness having, he argued, given evidence in support of his submission. Did the decision of the case turn on this question we can see that there might be something to be said in favour of the submission. But the vulnerability of the decision lies in the fact that the confession was made at a time when the accused must be held to have been in police custody. True he was not in the custody of members of the regular police force, but it has been held by the Supreme Court frequently that the custody need not be that of the regular police force and the common sense of such a decision must be apparent. For instance in Crown v. Kaboo Mulei, 11 K. L. R. 93 a tribal retainer was held to be a police officer within the meaning of the Indian Evidence Act. And the dicta of Sir Alison Russell C. J. Tanganyika with reference to the same Act in Rex v. Masola bin Msembe, 1 T. T. L. R. 7 and Rex v. Asmani Mwakewamba, 1 T. T. L. R. 9, support the view that the rule as to the inadmissibility of confessions while in custody is not limited to the custody of members of the regular police force. The following passage in the magistrate's judgment reveals the importance he attached to the confession we have referred to:-

"The defence is a simple denial and an attempt to prove that accused was so drunk that his admission to Arap Katam was valueless.

Evidence on this point is contradictory. At all events accused was able to accompany Arap Kose and Arap Melil to Arap Katam, and to have remembered what he said. He may well have been under the influence of liquor but I do not believe he was so drunk as he says. Prosecution witnesses considered him perfectly sober."

Earlier in his judgment he said: $-$

"It is also clear that accused admitted guilt when questioned by Arap Katam before arrest."

This statement is not supported when the evidence of Arap Katam is looked at fairly. He said: "I am Chief of Location 14, Kericho District ... Next morning I sent my askaris Arap Kose and Arap Melil to bring accused to me. I questioned him and he admitted finding the heifer and taking it. I therefore arrested him and told him he would go before D. C." The magistrate no doubt is relying on these last words for his statement that the accused's admission of guilt was made prior to his arrest. But having regard to the fact that the accused was sent for and brought before the Chief by his two askaris it cannot be contended that he was not under arrest at the time he made the admission. It is interesting to note that Arap Melil, one of the Chief's askaris who arrested the accused and who was called as a witness by him, confirmed the view that the admission was made subsequent to the arrest.

The accused in his defence said: $-$

"It is true that I admitted stealing the heifer, but I was drunk at the time."

This statement has to be considered in the light of the inadmissibility of the admission referred to because of the circumstances in which it was made. If the admission was inadmissible originally, then no statement by the accused that he made it can make it admissible. The case might have been otherwise were we considering merely the voluntariness or otherwise of the admission. The appeal is allowed, the conviction, sentence and orders set aside, any money paid thereunder being ordered to be refunded and the accused is directed to be set at liberty.