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Mohamed Sugal Esa Mamasan Rer Alalah v. The King
Factual and Procedural Background
The appellant and his brother Elmi were charged before the Protectorate Court of Somaliland on 22nd July 1944 with the murder of their half-brother Abdillahi, which occurred on or about 17th May 1942. The appellant was convicted and sentenced to death by the trial Judge, while Elmi was acquitted. This conviction and sentence were confirmed on appeal by the Military Governor sitting as Judge of the Protectorate Court on the appellate side. The appellant obtained special leave to appeal to His Majesty in Council on the ground that the Court had admitted and acted upon the unsworn evidence of a girl aged 10 or 11, whom the trial Judge found competent to testify but unable to understand the nature of an oath. It was conceded by the Crown that if her evidence was inadmissible, there was insufficient evidence to justify the conviction. The central legal question was whether the law in force in the Protectorate permitted the Court to receive evidence from a witness who did not understand the nature of an oath but was otherwise competent to testify.
Legal Issues Presented
- Whether the law applicable in the Protectorate of Somaliland permits the reception of evidence from a witness who does not understand the nature of an oath but is otherwise competent to testify.
- Whether unsworn evidence from such a witness requires corroboration before it can be acted upon by the Court.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the unsworn evidence of the girl witness was inadmissible because she did not understand the nature of an oath.
- He further argued that even if the unsworn evidence was admissible, the Court could not act upon it unless it was corroborated.
Crown's Position
- The Crown conceded that if the unsworn evidence was inadmissible, there was insufficient evidence to convict the appellant.
- The Crown relied on the provisions of the Indian Evidence Act and the Indian Oaths Act as applied to Somaliland to justify the admissibility of the evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R. v. Sewa Bhogta, (1875) 14 Beng LR 294 (FB) | Section 13, Oaths Act applies even when the Court deliberately refrains from administering an oath to a witness who does not understand its nature. | The Court agreed with the majority decision that the omission to administer an oath does not invalidate the evidence if the witness is competent otherwise. |
| Queen-Empress v. Maru, (1888) 10 All 207 | Contrary view that evidence without oath is inadmissible if the witness does not understand the oath. | The Court declined to follow this dissenting opinion, preferring the Bengal High Court decision. |
| Ram Samujh v. Emperor, (1907) 10 OC 337 | Supported the view that omission to administer oath does not invalidate evidence if witness is competent otherwise. | The Court endorsed this judgment as instructive and aligned with the Bengal High Court ruling. |
Court's Reasoning and Analysis
The Court examined the applicability of the Indian Evidence Act, 1872, and the Indian Oaths Act, 1873, as incorporated into the law of Somaliland by the Somaliland Order in Council, 1929. Section 118 of the Indian Evidence Act establishes that all persons are competent to testify unless they cannot understand questions or give rational answers. The Indian Oaths Act, particularly Section 13, provides that omission to administer an oath or affirmation does not invalidate evidence or proceedings.
The Court analyzed conflicting judicial opinions in India regarding whether Section 13 applies when the Court deliberately refrains from administering an oath to a witness who does not understand its nature. The Court favored the view that Section 13 is unqualified and applies regardless of the reason for omission, aligning with the decisions of the Bengal High Court and Ram Samujh v. Emperor.
The Court acknowledged that in some communities, witnesses may understand the duty to tell the truth without comprehending the nature of an oath, and it is for the Judge to ensure the witness is competent in that respect. The Court did not find it necessary to decide whether the 1939 Oaths (Amendment) Act applies to Somaliland, as their interpretation of Section 13 rendered that question moot.
Regarding corroboration, the Court noted that while English law requires corroboration of unsworn child evidence, the Indian Evidence Act does not. Corroboration affects the weight of evidence but is not a legal prerequisite for admissibility. The trial Judge was found to have properly considered corroborative factors in assessing the girl’s evidence.
Holding and Implications
The appeal was dismissed.
The Court upheld the conviction and sentence of the appellant, confirming that unsworn evidence from a competent witness who does not understand the nature of an oath is admissible under the law applicable in Somaliland. The Court clarified that corroboration is not legally required for such evidence, although it may affect its weight. This decision directly affirms the validity of the trial and appellate courts’ judgments without creating new precedent beyond the application of existing Indian statutory law to the Protectorate context.
Lord Goddard:-
Their Lordships now give their reasons for the advice they humbly tendered to His Majesty on 31st 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 17th 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.
There had been a dispute between the appellant and the deceased about a she-camel, which had been decided on 16th 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."
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, ('75) 14 Beng LR 294 (FB), R. v. Sewa Bhogta where 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: ('88) 10 All 207, Queen-Empress v. Maru. The other case to which their Lordships would refer is ('07) 10 OC 337, Ram Samujh v. Emperor, in which an instructive judgment was given by Greeven A. J. C. agreeing with that of the Bengal High Court.
In their Lordships' opinion, the decision of the Bengal High Court and in the case in 10 OC are right. Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of Legislature, it would have been simple to insert words in the section to that effect. No doubt, however, it was recognised that in some backward communities there may well be persons capable of understanding the necessity and duty of speaking the truth without appreciating the religious or moral obligations imposed by taking an oath. It is not to be supposed that any Judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but, also the necessity of speaking the truth when examined as a witness. It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act 39 [xxxix] of 1939), which settles the law in accordance with the Bengal and Oudh decisions referred to above. A question was raised in this appeal as to whether that Act applies to Somaliland but in view of the opinion which their Lordships have formed as to the true construction of s. 13 of the unamended act they do not find it necessary to decide it and accordingly they express no opinion as to whether the amending Act is part of the law of Somaliland.
It was also submitted on behalf of the appellant that assuming the unsworn evidence was admissible the Court could not act upon it unless it was corroborated. In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law. In a careful and satisfactory judgment the Judge of the Protectorate Court shows that he was fully alive to this rule and that he applied it, and their Lordships are in agreement with him as to the matters he took into account as corroborative of the girl's evidence. There is no fault to be found with the judgments of either Court and their Lordships have humbly so advised His Majesty.
Appeal dismissed.
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