Andrew s/o Kileo v. R., H.C. Crim App. 385-A-72, 29/9/72.

 

Andrew s/o Kileo v. R., H.C. Crim App. 385-A-72, 29/9/72.

            The appellant was charged with stealing by servant c/s 271 and 265 of the Penal Code and convicted of receiving property suspected of being stolen c/s 311 of the Penal Code. The main evidence against him was a statement he made to the Police admitting possession of the stolen goods but explaining that they had been given to him by his co-accused as security for a loan.

Held:   The admission of an incriminating fact coupled with an exculpatory explanation is not a confession, and if made a Police Officer is admissible in evidence.

BRAMBLE, J. – The appellant was charged with stealing by servant c/s 271 and 265 of the Penal Code and convicted of receiving property suspected to have been stolen c/s 311 and sentenced to 2 years’ imprisonment. The main evidence against the appellant was a voluntary statement made to the police. Mr. Kapoor for the appellant submitted that the statement was inadmissible in evidence because of section 28 of the Evidence Act which reads: “No confession made by any person whilst in the custody of a police officer, unless it be made in the immediate presence of a magistrate as defined in the Magistrate’s Courts Act, 1963 or a justice of peace under that Act, shall be proved as against such person.” Section 27 is more on the point since it says: “No confession made to a police officer shall be proved as against a person accused of an offence.”

The tendency has been to confuse confessions to a police officer with statements to a police officer. In R. v. Kufungu s/o Nusurupia and another, (1941) E.A.C.A. 89 a confession was defined as “an unequivocal admission of having committed an act which is law amounts to a crime.” In R. v. Mali Kiza s/o Lusota, (1941) 8E.A.C.A. 25 it was held that: “No statement that contains exculpatory matter can amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confession.”

            This is illustrated in R. v. Kutuyan s/o Swanditti, (1941) 8 E.A.C.A. 56 where a statement “I have killed my father accidentally when he tried to strike me” was not treated as a confession.

            From the sections quoted above it is clear that a voluntary statement made to a police officer is admissible in evidence if it  is not a confession and the question to be decided before admitting or rejecting it is whether or not the statement is a confession. In this case the appellant admitted being in possession of goods which had been stolen but he gave an explanation that they were given to him by his co-accused as security for a loan. Here there was an admission of an incriminating fact but there was an exculpatory explanation. It was not a confession and the statement was admissible in evidence.

            In his evidence on oath the appellant simply described the circumstances relative to his arrest. He did not refer to the statement in any way. He called two witnesses to rebut the evidence of P.W.3 and P.W.4 that he had left the suit alleged to have been found in his possession at the house of P.W.3. Apart from this there was nothing to suggest that he was denying possession. The learned magistrate did not consider this place of evidence but it did not go to the root of the matter nor could it affect the main issue if the statement was held to be the appellant’s. Mr. Kapoor submitted that it was in the nature of an alibi. If this was so it was an alibi for the 30^th October, 1971 and not for the date, on which the offence was said to have taken place, the 5^th September, 1971.

            There was no questioning of the statement to the police. The learned magistrate, however, misdirected himself when he stated that he appellant admitted that he brought a suit for Shs. 60/-. What he said was that it was given to him as security for a loan. This was not proved to be untrue and the prosecution had every opportunity of doing so. The position was that the appellant was found in possession of goods recently stolen and he gave an explanation that might reasonably be true. The trial magistrate did not direct himself on the law and found him guilty of receiving. There was misdirection on the facts and non-direction on the law and in the circumstances of this case they are fatal. With proper directions the case should have been dismissed. I will, therefore, allow the appeal, quash the conviction and sentence and order the immediate release of the appellant.