Wakilii

Abdi and Others v Reginam (Criminal Appeal No. 128 of 1956)

East African Court of Appeal · [1950] EACA 573 · 1950 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder in the High Court of Somaliland
Decision
First and third appellants' convictions and sentences set aside; second appellant's conviction and sentence of death upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that while the gang shared a common intention to rob, a separate common intention to murder was formed by only two members immediately before the killing. The first appellant's conviction was quashed because there was insufficient evidence that he shared or adhered to any intention to murder, and the murder was not committed in furtherance of the common intention to rob in which he did participate. The third appellant's conviction was quashed because his confession was improperly admitted without calling the interpreter and because an oath was administered without his request or concurrence. The second appellant's conviction was upheld as he personally shot the deceased.

Outcome

First and third appellants' convictions and sentences set aside; second appellant's conviction and sentence of death upheld

Facts

Five armed men including the three appellants held up a convoy of trucks on a public road and robbed the passengers. The first and second appellants were identified by passengers at close quarters in daylight. During the robbery, the deceased stated that he recognized the second appellant. One of the gang on the other side of the trucks said 'Shoot the man who says he can recognize you', whereupon the second appellant shot and killed the deceased. The third appellant was alleged to have been among the gang guarding the other side but was not identified by any witness. The prosecution case against the third appellant rested entirely on a confession which was recorded through an unnamed interpreter who was not called to testify, and during which an oath was administered to the appellant without evidence of his request or consent.

Issues

  1. Whether the first appellant shared a common intention to murder or whether the murder was committed in furtherance of a common intention to rob.
  2. Whether a confession improperly admitted against the third appellant could sustain his conviction for murder.
  3. Whether the administration of an oath when recording a confession rendered it involuntary and inadmissible.

Orders

  • Appeal of first appellant allowed.
  • Conviction and sentence of death passed on first appellant set aside.
  • Appeal of third appellant allowed.
  • Conviction and sentence of third appellant quashed.
  • Appeal of second appellant dismissed.

Rules and key headnotes

Criminal Law & Procedure — Common Intention — Section 34 Indian Penal Code — Murder During Robbery — Change of Common Intention
For joint criminal responsibility under section 34 of the Indian Penal Code, the act must be done in furtherance of the common intention of all. Where a gang's original common intention was to commit robbery with firearms for intimidation, and immediately before a murder a separate common intention to murder was formed by only some members, other members cannot be held liable for murder unless there is evidence they shared or adhered to the intention to murder.
Evidence — Confessions — Interpreter Not Called — Admissibility
A confession recorded through an interpreter from the vernacular to English should not be received in evidence if the interpreter is not called as a witness and his absence is not explained by production of a deposition.
Evidence — Confessions — Administration of Oath — Voluntary Character
No oath or affirmation should be administered when an accused person is about to make an extra-judicial statement. Administration of an oath without showing it was done at the accused's request or with his concurrence may render the confession inadmissible by taking away its voluntary character.
Criminal Law & Procedure — Common Intention — Distinction from Constructive Liability — Preconceived Intent Required
It is not sufficient for joint responsibility under section 34 that the offence actually committed was likely to occur as a result of several persons acting together. The common intention must be proved and the common act must have been done in furtherance of that common intention. The mere fact that a person may think a thing likely to happen is different from intending that it should happen; only when a court can hold with judicial certitude that an accused preconceived or premeditated the result can section 34 be applied.
Criminal Law & Procedure — Unlawful Assembly — Section 149 Indian Penal Code — Application Limited to Charged Offences
Section 149 of the Indian Penal Code, unlike section 34, does not apply generally. It applies only where the existence of an unlawful assembly is charged and proved. Section 149 cannot be relied upon where unlawful assembly was not charged.

Legislation cited (7)

  • Indian Penal Code s.34
  • Indian Penal Code s.149
  • Indian Penal Code s.379
  • Indian Penal Code s.381
  • Indian Penal Code s.396
  • Criminal Procedure Code s.379
  • Criminal Procedure Code s.381

Cases cited (5)

  • Petro v R (3 EACA 110)
  • Kashandago v R (20 EACA 174)
  • Yozefu Masabo v R (19 EACA 266)
  • Ndei Gachuru (Criminal Appeal No. 325 of 1953)
  • Kapemba d/o Andrea v R (21 EACA 394)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Abdi and Others v Reginam (Criminal Appeal No. 128 of 1956) [1950] EACA 573 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.