Rex v Singh and Another (Criminal Appeals Nos. 239 and 240 of 1945) [1945] EACA 35 (1 January 1945)

COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir G. GRAHAM PAUL, C. J. (Tanganyika) and SIR NORMAN WHITLEY, C. J. (Uganda)

REX, Respondent (Original Respondent/Prosecutor)

$\mathbf{v}$

NAND SINGH AND HARISH CHANDRA, Appellants (Original Appellants) Accused Nos. 1 and $2$ )

Criminal Appeals Nos. 239 and 240 of 1945

(Appeals from decision of H. M. Supreme Court of Kenya)

Criminal Law-Bribery-Questions disallowed-Section 124, Indian Evidence Act-Confession to Police Officer-Wrongful admission of evidence-Suffi-The cient independent evidence remaining—Section 167, Indian Evidence Act.

Both appellants appealed against their convictions for bribery of a police officer on the ground of both wrongful exclusion and wrongful admission of evidence. At the trial the learned magistrate disallowed certain questions concerning which privilege was claimed and admitted in evidence a confession made by one of the appellants to a police officer in the presence of his co-appellant.

- Held (13-11-45).—(1) That the questions were properly disallowed on a claim of privilege<br>made under section 124 Indian Evidence Act and that even had they been allowed would not have affected the result. - (2) That although the confession to a police officer was wrongly admitted there was other sufficient evidence after excluding the confession to support the convictions and section 167 of the Indian Evidence Act applied.

Russell for the Appellants.

Kingsley, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This is a second appeal by two accused, who were convicted and sentenced for bribing a police officer, and only lies on a question of law. Questions of law have been raised in that the trial magistrate wrongly admitted certain evidence and wrongly disallowed certain questions. As to the latter, we cannot find any substance in the point, for the questions referred to were disallowed on a claim of privilege (section 124, Indian Evidence Act) which would appear to have been properly made and also had they been allowed we cannot see that they would have affected the result. The question of wrongful admission of evidence refers to the evidence of a confession purporting to have been made to a police officer in the hearing of another police officer who was hidden nearby on the 8th February, 1945. The first appellate Court held that this evidence was wrongly admitted and after excluding it from consideration came to the conclusion that there was other sufficient evidence to support the convictions. We have considered the provisions of section 167 of the Indian Evidence Act and we have come to the conclusion that the rejected evidence would not have affected the decision of the case. The trial magistrate, who was impressed by the manner in which the police officer concerned gave his evidence that he had been bribed, believed him. His course of conduct in notifying his superior officer of the progress of events and the circumstances of his having in his possession Sh. 500 after his interview with the two accused at the police station all go to show that there was sufficient evidence remaining

after excluding the evidence of the confession to support the convictions and satisfy us that the magistrate's decision should not be reversed. For the second accused it was submitted that the evidence does not support his conviction. With that submission we do not agree, although he does not appear to have taken as active part in the transaction as the first accused. Mr. Russell quoted many English cases in support of his argument, but we need only say that quite apart from these cases being for the most part concerned with the wrongful admission of evidence in Jury trials, the evidence objected to was exactly of the nature that was calculated to prejudice a jury against a prisoner, evidence tending to show that the prisoner had committed other offences or had a disposition to commit offences of the nature under trial or was a person of bad character (no evidence having been given by or on behalf of the prisoner to establish his good character). The cases, when read, do not appear to be authorities that can be invoked in the present case and are clearly distinguishable.

The appeals are dismissed.