Rex v Tabulayenka and Others (Consolidated Criminal Appeals Nos. 162, 163, 164 and 165 of 1942) [1943] EACA 14 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika).

#### REX, Respondent (Original Prosecutor)

## (1) TABULAYENKA s/o KIRYA, (2) GARANDI s/o KASAJA, (3) RAJABU bin SOWEDI, (4) NALYONGO s/o MACHALI, Appellants (Original $Accused$

Consolidated Criminal Appeals Nos. 162, 163, 164 and 165 of 1942

#### Appeals from decision of H. M. High Court of Uganda

Criminal Law—Murder—Sections 22 and 220 (e) Penal Code—Common intention—Cause of death.

The facts of the case are sufficiently set out in the judgment *infra*.

$-Held$ (29-1-43).—(1) To constitute a common intention to prosecute an unlawful purpose within the meaning of Section 22 Penal Code, e.g. to beat a so-called theif, there being no suggestion that the violence used was necessary to effect the thief's arrest, it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so-called thief. Their common intention may be inferred from their presence, their actions, and the omission of any of them to dissociate himself from the assault.

(2) For the purpose of Section 200 (e) Penal Code, it is not necessary that each of the accused knew that his act or acts would probably cause grievous harm. It is sufficient if the cumulative effect of the beating carried out by the different accused was such as would probably result in death or grievous harm and if all the accused had associated themselves with the assault, as the evidence shows they did, each accused is responsible for all the acts of the others done in furtherance of their common purpose.

R. v. Mikaeri and others, 8 E. A. C. A. 84; R. v. Okute and another, 8 E. A. C. A. 78 referred to.

The appeals were dismissed.

Appellants absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J).—The four accused in this appeal were found guilty of murder and sentenced to death. The facts of the case are not unusual in East Africa. A suspected thief, one Mikairi, was discovered sitting near the door of a hut at night, the alarm was sounded and several persons came rushing to the spot and at once proceeded to belabour the unfortunate Mikairi with fists, feet and such weapons they could lay their hands on. The result was death from multiple injuries.

There is evidence which the learned trial Judge accepted that all four accused took part in beating the deceased in one form or another and in presence of each other. The learned Judge held that Section 22 of the Penal Code had no application to the facts of the case and that the case was governed by Section 200 (e). Section 22 provides: $-$

"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."

Section 200 (e) provides: $-$

"A person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases: $-$ ... (e) if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons."

The passage of the judgment relevant to the question under consideration reads: —

"I do not agree with the prosecution that Section 22 of the Penal Code applies to the facts of this case. The words 'When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another' must be strictly construed. To bring this case within the section there should be evidence from which it could be inferred that at some time during that night these four accused had formed the intention to assault Mikairi in conjunction with one another. The evidence here is all the other way. The four of them each answered the alarm and went to the scene independently, each one taking up the assault on Mikairi as he arrived."

Section 200 (e) of the Penal Code is in my opinion the proper provision applicable to this case. Leaving out words which do not apply in the instant case. it reads: "A person is deemed to have caused the death of another although his act is not the sole cause of death if his act would not have caused death unless it had been accompanied by the act of other persons". That is, if a number of persons assault another, and the general result of the assault is death, it is not necessary to inquire into the effect of each particular injury caused by each of the assailants. That is the case here. Mikairi died as the result of kicks and blows with a rungu and a hammer. It is naturally impossible to say what injuries were caused by the kicks and what by the other instruments and whether the injuries inflicted by any one of the four accused were sufficient in themselves to cause death apart from the injuries inflicted by the others. But the legal result of Section 200 (e) is that each one of these four accused is guilty of having caused the death of Mikairi. I have no doubt that each of these accused knew that his acts would probably cause grievous harm to Mikairi. There are no circumstances of justification or excuse. I find Tabulayenka, Garandi, Rajabu and Nalyongo guilty of murder of Mikairi, contrary to Section 194 of the Penal Code.'

With respect we do not agree that Section 22 does not apply to the facts of this case. In our opinion it, rather than Section 200 (e), is applicable here. The fact that the four accused answered the alarm and went to the scene independently, each one taking up the assault as he arrived, does not rule out a common intention. Each as he arrived showed by his actions that his intention was at least to beat the thief, and when they were all assembled the beating in some form or other continued until Mikairi died. In these circumstances they were all so identified with the fatal assault on Mikairi that they may be said to have formed a common intention to prosecute an unlawful purpose in conjunction with one another, the unlawful purpose being to beat the so called thief, there being no suggestion that the violence used was necessary to effect his arrest. To constitute such a common intention it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so called thief. Their common intention may be inferred from their presence, their actions and the omission of any of them to dissociate himself from the attack on Mikairi.

The question then arises whether the common intention was merely to beat the deceased or whether it was something more, namely to cause his death or to do him grievous harm, or did each one of them beat or associate themselves with the assault with the knowledge that the beating would probably cause death or grievous harm. The learned Judge said he had no doubt that each of the accused knew that his acts would probably cause grievous harm. This would appear to be so, but it is not necessary in our opinion to go as far as that. If the cumulative effect of the beating carried out by the different accused was such as would probably result in death or grievous harm and all the accused had associated themselves with the assault, as the evidence shows they did, each accused is responsible for all the acts of the others done in furtherance of their common purpose.

The present case we consider to be a typical example of persons acting in pursuance of a common intention and the evidence of more than one witness confirms this. Take for instance the evidence of Kayendeke where she says: "Rajabu had a hammer. I know it. This is it (Ex. 1). Garandi came with a rungu, this is it (Ex. 2). It is Garandi's. Garandi beat the deceased twice with the rungu. The others were kicking him with their feet, those who had no sticks, they were kicking all over his body. Rajabu beat him with the hammer on the sides. They beat him to death". And the evidence of Yayiro is of a similar nature; he said: "Rajabu and Garandi came. Rajabu had a hammer, Garandi a rungu. These are they (Exs 1, 2). They began beating Mikairi, the others were also beating with hands, fisting and slapping". One can readily picture the unmerciful manner in which the deceased was set upon and done to death and one is not surprised that the medical witness found injuries which he described as follows: "I did a P. M. I found bruising at back of neck, and very extensive deep bruising on front and back of chest. There was a fracture of three ribs on left and five on right, all front ribs. I found five on right and four on left broken at back. The breast bone was also fractured in the middle. The fractured ribs on right had made tears in liver and lung".

The facts of this case bear a remarkable resemblance to the facts in $R_{ex}$ v. Mikaeri and others 8 E. A. C. A. 84, the headnote of which reads: -

"Appellants and others set upon the deceased, whom they believed to be a thief or a person addicted to thieving, with the common intention of giving him an unmerciful beating and beat him with sticks so that he died soon afterwards. The trial Judge found that those concerned in the beating were actuated by a common intent to cause grievous harm.

*Held*: That the appellants were each guilty of murder."

The following passage is taken from the judgment: -

"The evidence supports the view that a person was caught who was regarded whether rightly or wrongly as a thief and that a number of persons set upon him with the common intention of giving him an unmerciful beating, which they did, with the result that the victim died soon after. The medical evidence was that the body bore testimony to the beating having been such that the doctor had never seen a worse beating. It seems to us and the learned Judge and assessors so found, that any person identified as having taken part in the beating must be regarded as linked by a common intention within the meaning of the section quoted making him responsible for the death and so responsible for the crime of murder. All five accused are shown to have played some part in the terrible beating with its terrible consequences. It is but reasonable to hold that those who took part in the beating must be taken to have had the knowledge that grievous harm at least was a probable consequence. We cannot say in these circumstances that the findings of fact or law of the learned Judge were wrong. As to whether there should be any discrimination made between the accused as to the respective degrees of responsibility or as to whether the capital sentences should be commuted, that is a matter for consideration in another quarter. The appeals are dismissed".

And the following passage from the judgment of this Court in Rex v. Okute and another, 8 E. A. C. A. 78 at p. 80, is particularly apt on the question of common intention: "Where several persons together beat another, then, though each may have a different reason, and though some may join in the beating later than others, it is plain that all have what the law calls a 'common intention', which does not necessarily connote any previous concerted agreement between them".

The appeals are dismissed.

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor).

# TOMU s/o NGULOMBE, Appellant (Original Accused)

## Criminal Appeal No. 171 of 1942

#### Appeal from decision of H. M. High Court of Tanganyika

Criminal Law—Murder—Extra Judicial confession to Magistrate—Retraction of confession—Necessity for corroboration—Inadmissibility of evidence regarded as corroboration—Section 27 Indian Evidence Act.

The accused was charged with the murder of a woman. Two days after the killing of the deceased, he made an extra judicial confession to a Magistrate, in which he explained where and in what manner he had killed the deceased. There was evidence that the accused had pointed out to an Assistant Inspector of Police certain places, which the latter had marked on a plan, where the accused and the deceased had stood when he, the accused, fired arrows at the deceased.

Before the trial Judge the accused retracted the confession, alleging fear, and said that he was induced by a policeman to make it. The trial Judge held that the confession was voluntary, but that it had been retracted and that it required corroboration. The trial Judge accepted as admissible corroboration the following evidence given before him by an Assistant Inspector of Police:—

"Certain points which I have marked on the plan I put there as a result of information given me by the accused.

Point 'A' was pointed out to me as that at which deceased was standing when the first arrow was fired at her.

Point 'B' where she was when shot with the second arrow.

Point 'C' where accused was standing when he fired both arrows."

On the ground that "Section 27 of the Indian Evidence Act is not confined to the discovery of articles by the police as a result of what a prisoner says but would equally cover the indication of places where things took place, by an accused person", the trial Judge cited in support the commentary in Sarkar's Law of Evidence, 6th Edition, at page 249. The trial Judge held and the Court of Appeal agreed that there was other corroboration to be found in the evidence for the prosecution.

The appellant appealed against the conviction of murder.

Held (29-1-43).—There was no discovery made in consequence of the information given by the accused and set out in the above evidence within the meaning of Section 27 of the Evidence Act and the evidence set out *supra* was therefore not admissible as corroboration of the retracted confession. The reason of the rule in Section 27 of the Evidence Act for the admissibility of a confessional statement which is otherwise inadmissible is its confirmation by subsequent facts.

Commentaries in Sarkar's Law of Evidence 6th Edition, p. 245 et seq. refered to and approved.

The appeal was dismissed.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This appeal fails. The learned Judge appears to have found that the extra judicial confession made by the accused and subsequently retracted was made voluntarily (see the second paragraph on the second page of the typed judgment). We agree that there was corroborative evidence of the confession, but in our opinion the following evidence given by Assistant Inspector Shivelton (pages 3 and 4 of the typed record) was not admissible: -

"Certain points which I have marked on the plan I put there as a result of information given me by the accused. Point 'A' was pointed out to me as that at which deceased was standing when the first arrow was fired at her. Point 'B' where she was when shot with the second arrow. Point 'C' where accused was standing when he fired both arrows."

The only persons present when the woman was shot on the case for the prosecution were the accused and the deceased. The information which we have quoted amounts to a confession made to a police officer when the accused was in custody, and in our view there was no discovery made in consequence of that information within the meaning of Section 27 of the Evidence Act. Section 27 provides:

"Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

In the commentary to the Section in Sarkar's Laws of Evidence, 6th Edition 245, the following passage indicates clearly what is admissible and what is inadmissible under the section: —

"The words 'so much of such information' are very important and the whole force of the section is concentrated on them. As West, J., illustrates in R. v. Jora Hasji, II B. H. C. R. 242: 'For instance a man says "you will find a stick at such and such a place. I killed Rama with it".' A policeman in such a case may be allowed to say he went to the place indicated and found the stick, but any statement as to the confession of murder would be inadmissible."

And on page 250 the following passage appears: —

"The word 'discovered' is used in a peculiar sense. Thus when a man. confesses to the Police that he murdered another person, the fact that he murdered is not discovered by the statement. The test is that the fact discovered must be discovered in the sense, that the proof of the existence of that fact no longer rests on the credibility of the accused's statements but rests on the credibility of the witnesses who depose to the existence of that fact." The reason of the rule in Section 27 for the admissibility of a confessional

statement which is otherwise inadmissible is its confirmation by subsequent facts (p. 248 of the same commentary).

In this case the evidence to which we take exception may be summarized as a statement by the accused in the following terms: "Deceased was standing at point A when I shot the first arrow and at point B when I shot her with the second arrow". The fact that the police officer obtained knowledge that the arrows were fired while deceased was standing at A and B is not a fact discovered within the meaning of the section. What is required under the section to let in as evidence any part of the accused's statement is the discovery of a fact which confirms the truth of the accused's statement that he fired the arrows at a particular place. For example, the finding of an arrow at or near the place where the accused said he fired it. Were any other meaning to be given to Section 27 the result would be to render sections 25 and 26 practically a dead letter.

The appeal is dismissed.