MOHAMED SUGAL Vs. KING

JUDGEMENT

(1.) THEIR Lordships now give their reasons for the advice they humbly tendered to His Majesty on July 31, that this appeal should be dismissed.

(2.) THE appellant together with his brother Elmi was charged on July 22, 1944, before the Protectorate Court of Somaliland with the murder of his half-brother Abdillahi on or about May 17, 1942. THE Judge of the Court convicted the appellant and sentenced him to death, and acquitted Elmi. THE conviction and sentence were confirmed on appeal by the Military Governor sitting as Judge of the Protectorate Court on the appellate side and the appellant subsequently obtained special leave to appeal to His Majesty in Council. THE ground upon which special leave was given was that the Court had admitted and acted upon the unsworn evidence of a girl of ten or eleven years of age whom the Judge found was competent to testify but whom he did not consider was able to understand the nature of an oath. It was conceded by the Crown that if her evidence was inadmissible, not being given on oath, there was not sufficient evidence to warrant a conviction. In substance the only question for decision is whether the law in force in the Protectorate permits the Court to receive evidence from a person who does not understand the nature of an oath but is otherwise competent to testify, as understanding the questions put and being able to give rational answers. It is only necessary to give a very brief statement of the facts, as the whole question is one of law.

(3.) THE material sections of the Indian Oaths Act are Sections 5, 6 and 13 which provide as follows : 5.Oaths or affirmations shall be made by the following persons:- (a) All witnesses,, that is to say, all persons who may lawfully be examined, or give, or be required to give,, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence. * * * * "6.Where the witness, interpreter or juror is a Hindu or Muhammadan, or has an objection to making an oath, he shall, instead of making an oath, make an affirmation. In every other case the witness, interpreter or juror shall make an oath. " " 13.No omission to take any oath or make any affirmation, no substitution of any one-for any other of them, and no irregularity whatever in the form in which any one of them is, administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. "