Wakilii

Rex v Bitashubirwe (Criminal Appeal No. 16 of 1943)

East African Court of Appeal · [1943] EACA 24 · 1943 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder by Resident Magistrate sitting in Extended Jurisdiction at Bukoba, Tanganyika
Decision
Conviction for murder upheld; appellant remains convicted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that under section 146 of the Tanganyika Criminal Procedure Code, a magistrate need not record reasons in set form for permitting a child to give unsworn evidence; clear implication on the record suffices. Although the Indian Oaths Act 1873 and Oaths and Affirmations Rules 1925 require children capable of testifying to be sworn or affirmed, section 13 of the Oaths Act cures any omission to administer an oath or affirmation, rendering the evidence admissible. The child's evidence was properly admitted and was corroborated by the appellant's statement to Kashanja. Appeal dismissed.

Outcome

Conviction for murder upheld; appellant remains convicted

Facts

The appellant was convicted of murdering a girl by strangulation. The conviction depended almost entirely on the evidence of a seven year old boy, Leonard, and admissions made by the appellant to one Kashanja. Leonard testified at the preliminary inquiry that he saw the appellant assault the deceased, seize her by the throat, and drag her from a hut. Medical evidence confirmed death by strangulation and asphyxia. Leonard died between the preliminary inquiry and the trial, and his deposition was admitted under section 265 of the Criminal Procedure Code. The Magistrate recorded Leonard as "a young boy of seven years of age, warned to speak the truth" without administering an oath or affirmation. The appellant told Kashanja at about 2 a.m. that the girl at Petro's house had abused him, so he had beaten her and she fainted, and that if she was reported dead he would give himself up at Bukoba.

Issues

  1. Whether the evidence of a seven year old child witness was admissible when given without oath or affirmation at the preliminary inquiry.
  2. Whether the Magistrate was required to record in set form his reasons for permitting the child to give evidence without being sworn or affirmed.
  3. Whether the child ought to have been affirmed under the Indian Oaths Act 1873 and Oaths and Affirmations Rules 1925.
  4. Whether the statement made by the appellant to Kashanja amounted to corroboration of the child's evidence.
  5. Whether there was evidence to support a finding that the appellant was incapable of forming an intention within section 14(4) of the Penal Code.

Orders

  • Appeal dismissed.

Rules and key headnotes

Evidence — Child Witnesses — Recording of Reasons for Unsworn Evidence
Section 146 of the Tanganyika Criminal Procedure Code does not require a court to record its reasons in any set form for permitting a child to give evidence without being sworn or affirmed; it is sufficient if the reasons appear by clear implication on the face of the record.
Evidence — Child Witnesses — Capacity to Testify
A good test of a child's capacity to testify is often to be found in the way the evidence is given; if the child is capable of making intelligent answers, the court may properly conclude the child is capable of giving evidence.
Evidence — Child Witnesses — Oath or Affirmation Requirement
The effect of the Indian Oaths Act 1873 section 13 and the Oaths and Affirmations Rules 1925, read in conjunction with section 146 of the Tanganyika Criminal Procedure Code, is that the court should first satisfy itself that a child of tender years is capable of giving evidence and if so satisfied should have the child sworn or affirmed; however, if the court omits to administer an oath or affirmation and merely cautions the child to speak the truth, such omission is cured by section 13 of the Oaths Act, which provides that no omission to take any oath or to make any affirmation shall render inadmissible any evidence whatever.
Evidence — Child Witnesses — Exemption from Oath but Not Affirmation
By section 146 of the Tanganyika Criminal Procedure Code, a child of tender years need not be sworn, but the section does not exempt the child from the alternative of affirmation.
Evidence — Corroboration — Child Witness Evidence
Evidence of a child witness requires corroboration; corroboration is evidence which tends to implicate the accused and to connect him with the crime and also tends to show that the child's story is true and can safely be acted upon.

Legislation cited (5)

  • Tanganyika Criminal Procedure Code s.265
  • Tanganyika Criminal Procedure Code s.146
  • Indian Oaths Act 1873 s.13
  • Oaths and Affirmations Rules 1925
  • Penal Code s.14(4)

Cases cited (3)

  • Fatu Santal v King Emperor (A.I.R. (1921) Patna 109)
  • Emperor v Sahdeo Ram ((1936) I.L.R. 58 All. 23)
  • R v Baskerville (25 Cox 524)

Full judgment

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

Rex v Bitashubirwe (Criminal Appeal No. 16 of 1943) [1943] EACA 24 (1 January 1943)
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.