Case No.:

AC-CR-REV-133-1957

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Criminal procedure —Code of Criminal procedure ,S.220(1) – statement taken by police in investigation not in "judicial peoceeding "-Not admissible under this section.

Accused was convicted on a statement given by an accomplice to the police before absconding. the statement was admitted into evidence by the police magistrate pursuant to Code of .Criminal Procedure, .5. 220 (1).
Held A statement taken by the polo e in an investigation not in the presence of the accused is not taken in a ‘ judicial proceeding “ and is therefore not admissible under Code of Criminal Procedure, s. 220 (1)

Judgment

(CRIMINAL REVISION)

S DAN GOVERNMENT v. IBRAHIM MOHAMED AND OTHERS

AC-CR-REV-133-1957

R. C. Soni J. September 4, 1957 — The convictions of Abdallah EL Hag Abdallah, Accused No. 4, and Abdel Fadel Burber. Accused No. 5. appear to be correct. Accused No. 4 pleaded guilty in court. The watch found with Accused No. is not an ordinary watch. In the circumstances of the sale, this accused must have known or had reason to believe it to be stolen property.

But the sentences on both these accused appear to be very light. A sentence of three months given to Accused No. 5 appears to me to be far too light.

So far as the cases of Abdel Razig Ibrahim, Accused No.3 , and of Ibrahim, ‘Accused No. 1, are concerned, the position is complicated by the fact that the trial magistrate has taken into consideration the statement of an accomplice, Salih Osman, who is absconding. This statement is in the Case Diary. At page 17 of the tril mgistrate’s record this statement is called the statement of P.W.10. The trial magisrate's makes it admissible in evidence by virtue of Code of Criminal Procedure, s. 220. When Code of Criminal Procedure, s. 220, is read it will be found that that section refers to a statement taken in judicial proceedings. A statement taken by the police or by a magistrate in course of an investigation is not a statement in judicial proceedings. The marginal note to the section makes it clear also. The marginal note refers to “evidence at magisterial inquiry.” A police investigation is not a magisterial inquiry. The other accused are generally not there when the statement is taken down. There is no right of cross-examination. This statement of the so-called P.W. to is wholly inadmissible in evidence.

Without this statement of P.W. to, the conviction of Abdel Razig Ibrahim, Accused No. 3. can be supported only if we believe the statement

of Abdallah El Hag Abdallah. Accused No .4, given as a witness PAY. 11 up to the tatters conviction, lie is an infamous character and was an accomplice. What is the guarantee that he is naming Accused No. truthfully Infamous persons have their own grudges and their own reasons for naming their enemies. The conviction of Ibrahim, Accused .1, cannot be supported without the evidence of the absconder, P.W. 10. the only things proved against him are:

(I) drinking together in the evening; and

 (2) his returning to his residence at 1.40 a.m.

T he magistrate says that the burglary took place at 12.35 a.m. I do not know where he gets the time from.

Would the magistrate have convicted if the inadmissible evidence were excluded ?

M.A.Abu Ronnat C. j. September 5 ,1957:- 1 have perused the record of this case. I think there is no evidence against Ibrahim Homeida, Accused No. 1, to warrant his conviction. The statement made on oath by Salih Osman El Gezuli was not made in the presence of Accused No. 1, and therefore this accused had not the opportunity to cross-examine him. This means that Code of Criminal Procedure, s. 220 (1), cannot be applied to the facts of this case.

As to Accused No. 2, 1 think apart from the statement of Salih Osman EL Gezuli. there is the evidence of Abdalla and in such circumstances I think he can be convicted. His case is distinguishable from the case of Accu.sed No.1 against whom there is no admissible evidence.

The finding against Accused No.1 is quashed and it is ordered that he be set at liberty in respect of the sentence in this case.

As regards other accused, I see no reason to intervene.