MOHAMED SUGAL ESA MAMASAN RER ALALAH Vs. KING

JUDGEMENT

(1.) Their Lordships now give their reasons for the advice they humbly tendered to His Majesty on 31 July that this appeal should be dismissed. The appellant together with his brother Elmi was charged on 22nd July 1944 before the Protectorate Court of Somaliland with the murder of his half-brother Abdillahi on or about 17 May 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 10 or 11 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.

(2.) There had been a dispute between the appellant and the deceased about a she-camel, which had been decided on 16 May 1942, in favour of the latter by a native tribunal, and the appellant had been heard to utter threats against him. On the next day the deceased was murdered, and his body was found near the camp in which both he and the appellant were living. There was evidence that the appellant was seen at the camp just after the body was found and that immediately afterwards he and his brother disappeared and made no attempt to trace the murderer of their half-brother and so become entitled to blood money. They did not return to the camp for about six months and were arrested in consequence of some other dispute about property and charged with the murder rather more than a year after it had been committed. The witness whose evidence is in question in this appeal is a girl named Sudio Mohamed, who at the time of the murder was not more than 10 years old and she was tendered by the Crown as an eye-witness of the crime and as having given the alarm at the camp which led to the finding of the body. It is stated by the trial Judge that she appears to be intelligent for her age and that she gave her answers frankly and without hesitation. By Para. 16 of the Somaliland Order in Council, 1929, the Indian Evidence Act, 1872, and the Indian Oaths Act, 1873, are expressly applied to Somaliland. Section 118, Indian Evidence Act, is in these terms: "118. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation. - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."

(3.) The material sections of the Oaths Act are Ss. 5, 6 and 13 which provide as follows : "5. Oaths or affirmations shall be made by the following persons : 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." In India the question has more than once arisen whether the omission to take an oath referred to in S. 13, Oaths Act, applies to a case where the Court deliberately refrains from administering the oath to a witness, or only to cases where the omission is due to some accident or negligence, and opinion on the subject has not been unanimous. It is unnecessary to set out all the cases but their Lordships will refer to three of them. Soon after the passing of the Act the question came before the High Court of Bengal in 14 Beng. LR 2941where a majority of the Full Bench, Jackson J. dissenting, held that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature. On the other hand in Allahabad, Mahmood J. in an elaborate judgment refused to follow that case, and preferred the view of Jackson J. that in such circumstances the evidence was inadmissible: 10 ALL 207.2The other case to which their Lordships would refer is 10 OC 337,3in which an instructive judgment was given by Greeven A. J. C. agreeing with that of the Bengal High Court.