(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. RAMADAN ADAM GAZAL AND OTHERS

AC-CP-391-1969

Principles

  Criminal procedure—Case Diary—Code of Criminal Procedure, s. 116—To help the Court and Appellate authority to form an opinion about the credibility of the witness and to come to the truth of the matter—Not admissible

According to Code of Criminal Procedure, s. 116, the statements in the Case Diary are not admissible. But such statements may help the court or the appellate authority in trying to come to the truth of the matter and to form an opinion about the credibility of the witness, especially when the witness makes different statements here and there.

Judgment

Osman El Tayeb C.J. July 28, 1969 : —These four accused under the Sudan Penal Code, s. 79/251 were charged with jointly causing the death of Alberto Hassan. The Major Court found the first two guilty as charged and sentenced both of them to death, and found the other two not guilty and set them at liberty.

A3 and A4 in reply to the charge pleaded “not guilty” and each one of them stated that he did not hit or take any part in hitting deceased with any weapon. I agree with the finding of the court, since there is no evidence of value to show that they were carrying weapons or that they took part in beating deceased. The material evidence available is only as to their presence, without anything in common between them and the other two accused. Finding of not guilty in respect of these two accused is, therefore, confirmed.

The other first two accused have been convicted by the Major Court for joining in causing the injury sustained by deceased, and that each one of them knew that death would he the probable consequence of that injury. The court found that Ai Ramadan was carrying a steel bar with which he attacked deceased, and A2 Guma’a was carrying a big stick with which he attacked deceased. As deceased had only one fatal wound on the head the court was left in no doubt as to which of them caused that fatal wound.

I do not find myself in agreement with the finding of the court in respect of Ai Ramadan. The court took a rather strange line by accepting and relying on the Case Diary, and by that it rejected their evidence given on oath at Magisterial Inquiry and at the trial. P.W.s 2 and 3 stated in the Case Diary that Ai Ramadan hit deceased with the steel bar, while at the other two stages of the proceedings they made different statements; that they did not see Ai carrying the steel bar nor that he hit deceased.

The court relied on the statement made by Abu Rannat C.J. in Sudan Government v. Siddik Abdalla Sid Ahmed (1963) S.L.J.R. 109 that reads as follows:

“The first statement in the Case Diary is always preferable to statements made later, when the witness hears other people discussing the case and becomes influenced by their opinion".

I have to make it clear that the statements recorded in the Case Diary are not evidence and they shall not be admissible as such against any accused person in any inquiry or trial. These are the express and plain words of the Code of Criminal Procedure, s. 116. The Case Diary is the record of the Police Investigation; its main purpose is the collection and piling up of all information, statements and other material with respect to an offence suspected of being committed, and the detection or pointing out of the persons involved in the commission of that offence. It is rather an administrative action to indicate or show whether there is a case for prosecution to be taken before a court of justice that will pronounce the final word about it. And the judicial control or interference exercisable by Magistrates, as given to them by law, is necessary only to assist the investigator to carry out their duties; when they want, for the purposes of the investigation, to make arrests, searches, etc.

The statements in the Case Diary are not taken on oath, and they are not taken in a judicial proceeding, and for that reason they are not admissible in evidence in any inquiry or trial. The confession of an accused person, or the dying declaration of a deceased person as to the cause of his death, when recorded in the Case Diary, is not an exception to that rule because it has to be proved by the person who recorded them.

The statements of persons recorded in the Case Diary may be referred to by a court holding an inquiry or trial to test the credibility of the person who made that statement, when he is giving evidence on oath before the court, and to refresh the memory of the witness to make full disclosure of all the facts within his knowledge. The provisions of the Code of Criminal Procedure, s 116, are sufficiently clear on these points.

When, as confirming and appellate authority, we refer to the Case Diary, as we usually do, we do it with that same view expressed in the above-mentioned section. We seek that necessary aid in trying to come to the truth of the matter, to form an opinion about the credibility of the witness, especially when it is found that he made different statements here and there. We try to place ourselves in the position of the trial court and do what it ought to have done, but for lack of experience neglected to do. Abu Rannat C.J. was handling a very complicated case in which a witness stated in his testimony before the court that the accused was the person who came to the deceased girl, and she went out with him. In her statement in the Case Diary she stated that it was dark and she could not know that person who came to deceased, nor could she identify him. It is clear that the intention was to discredit that witness with respect to her statement before the court.

In so far as the statement of P.W.2 and P.W.3 in the Case Diary is excluded as being inadmissible evidence, then there would be very little evidence against Ai Ramadan to prove that he hit deceased with the steel bar on the head. It is evidence that is not sufficient to warrant his conviction.

I refuse confirmation of finding of guilty under the Sudan Penal Code, S. 79/251, with respect to A1 Ramadan Adam Gazal and direct that he be set at liberty.

As to A2 Guma’a Rahib Komdago, he admitted at the Magisterial Inquiry and at the trial that he struck deceased with his stick (okaz), exhibited before the court, on his head until deceased fell down and then he hit him for the second time on his thigh. He added consistently that none of the other accused joined in hitting deceased and that he hit deceased alone. The evidence before the court substantially supports this statement made by A2.

Deceased suffered from one severe and fatal blow on the head; he was in a coma until he died on the second day. The cause of death was fracture of the skull and internal haemorrhage.

The blow was so hard that A2 Guma’a would have known that death would be the probable result of that blow.

Is A2 entitled to the benefit of any of the exceptions to the Sudan Penal Code, s. 249? The answer is in the negative. He stated that deceased wanted to hit him with a stick and he warded that stick and retaliated by hitting back. There is no evidence to support this statement, and in fact there is evidence to the contrary. All the witnesses agree on the point that deceased was not carrying a stick or any other weapon. He entered the house, and stood at a distance. The accused arid others in the party thought that he came to quarrel. A2 went to him and hit him without any attempt from deceased to make any attack.

For these reasons, I confirm finding of guilty under the Sudan Penal Code, s. 251 and also the death sentence passed by the Major Court against A2 Guma’a Rabih Komdago.