Wakilii

Rex v Hirji and Others (Criminal Appeals Nos. 32, 33 and 34 of 1946)

East African Court of Appeal · [1946] EACA 32 · 1946 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions for murder in the High Court of Zanzibar
Decision
Second appellant acquitted and discharged. First and third appellants convicted of assault causing actual bodily harm and sentenced to two years' imprisonment with hard labour.

Observed later treatment

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Holding

The Court held that while the evidence established a common purpose to assault the deceased, it did not establish a common purpose to strangle or kill. An unsworn statement by an accused inculpating a co-accused cannot be used against that co-accused unless it amounts to a confession under section 30 of the Evidence Decree. The Court allowed the appeals, quashed the conviction of the second appellant, and substituted convictions for assault causing actual bodily harm for the first and third appellants.

Outcome

Second appellant acquitted and discharged. First and third appellants convicted of assault causing actual bodily harm and sentenced to two years' imprisonment with hard labour.

Facts

On 12 July 1945 at about 8 p.m., suspicious noises were heard from the deceased's house in Miembeni, Pemba. Witnesses described sounds of throttling and fighting lasting about three minutes. When police forced entry, they found the deceased's body on the floor of a dimly lit room showing signs of a struggle. The deceased had died of strangulation by asphyxiation. Four men were found locked in an inner room: the three appellants (all Indians) and a native named Abdulla bin Hassan. All four bore either bodily injuries or blood stains. No one else was in the house and no one was seen entering or leaving. The deceased had substantial cash and gold ornaments in safes, but nothing appeared to have been stolen. There was no evidence showing which of the four men actually strangled the deceased.

Issues

  1. Whether the evidence established a common purpose among the accused to kill or cause grievous harm to the deceased.
  2. Whether an unsworn statement by one accused inculpating a co-accused can be taken into consideration against that co-accused.
  3. Whether the killing by strangulation was a probable consequence of a common purpose to assault.

Orders

  • Appeals allowed.
  • Conviction of Appellant 2 (Girjashanker Kalyanji) quashed.
  • Convictions for murder against Appellants 1 (Ramji Hirji) and 3 (Mohanlal Arjan) set aside.
  • Convictions for assault causing actual bodily harm contrary to section 238 of the Penal Decree substituted for Appellants 1 and 3.
  • Appellants 1 and 3 each sentenced to two years' imprisonment with hard labour, sentences to run from date of conviction.

Rules and key headnotes

Joint Criminal Responsibility — Common Purpose — Section 21 Penal Decree
Where several persons are found at the scene of a killing but the evidence establishes only a common purpose to assault and not a common purpose to kill or cause grievous harm, they cannot all be held equally responsible for murder committed by one of them through strangulation unless the killing was a probable consequence of the common purpose.
Confessions — Unsworn Statements by Co-Accused — Admissibility Against Co-Accused
An unsworn statement by an accused person that is self-exculpatory and inculpates a co-accused is not a confession and cannot be taken into consideration against that co-accused, whether corroborated or not.
Confessions — Definition — Section 30 Evidence Decree
A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. A statement containing self-exculpatory matter cannot amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.
Confessions — Use Against Co-Accused — Corroboration
When a statement amounts to a confession it may under section 30 of the Evidence Decree be taken into consideration against a co-accused although it has not the force of sworn evidence, but it must be classed as accomplice evidence requiring corroboration.
Murder — Common Design — Probable Consequence
Where persons form a common intention to assault with fists and no weapons are used or carried, killing by strangulation by one member of the party is not an offence of such a nature that its commission was a probable consequence of the common purpose to assault, and the others cannot be held guilty of murder.

Legislation cited (5)

  • Penal Decree s.21 (Zanzibar)
  • Penal Decree s.238 (Zanzibar)
  • Evidence Decree s.30 (Zanzibar)
  • Criminal Procedure Code s.366
  • Evidence Decree s.167 (Zanzibar)

Cases cited (4)

  • Kingori wa Cakuha and Kagiri wa Thumbi (Criminal Appeals Nos. 294 and 297 of 1945)
  • Pakala Narayana Swami v Emperor (1939) AIR 47
  • R. v. Nirmal 22 All. 445
  • Giddigudu v. R. 33 N. 46

Full judgment

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

Rex v Hirji and Others (Criminal Appeals Nos. 32, 33 and 34 of 1946) [1946] EACA 32 (1 January 1946)
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.