Wakilii

Rex v Gilani (Criminal Appeal No. 120 of 1945)

East African Court of Appeal · [1945] EACA 28 · 1945 Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by High Court of Tanganyika for theft
Decision
Appellant acquitted and released

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and quashed the conviction. The prosecution failed to prove the essential element that the appellant received money and did not account for it. The trial court erred in law by treating alleged previous statements by a witness as substantive evidence of guilt, when such statements can only be used to test the witness's credibility. Previous statements, whether depositions or otherwise, cannot under any circumstances become substantive evidence at trial. On the merits, there was no evidence that the appellant or anyone had stolen the money alleged.

Outcome

Appellant acquitted and released

Facts

The appellant was chief storekeeper of the Northern Province Wheat Scheme Board in Tanganyika. He was convicted on two counts of theft of money allegedly received from one Suleman for hides sold on behalf of the Board: Sh. 77/64 on 22 June 1944 and Sh. 46/28 on 12 July 1944. At trial, Suleman testified that he bought hides on those dates but could not remember whether he had paid the appellant and thought he still owed the Board. The trial magistrate disbelieved Suleman's trial testimony and instead relied on alleged previous statements Suleman made to the Board Secretary, Mr. Hines, suggesting he had paid cash to the appellant. The Board operated a credit note system for hide sales. Documentary evidence showed that 53 hides in July were accounted for with payment of Sh. 196/85 received.

Issues

  1. Whether the prosecution proved that the appellant received money from the purchaser and failed to account for it.
  2. Whether previous statements alleged to have been made by a witness can constitute substantive evidence at trial.
  3. Whether there was any evidence to support the conviction for theft.

Orders

  • Appeal allowed.
  • Conviction quashed.
  • Appellant to be released forthwith.

Rules and key headnotes

Evidence — Previous Statements — Admissibility — Use for Credibility Only
No previous statement alleged to have been made by a witness can under any circumstances become substantive evidence at a trial; the only purpose for which evidence of such previous statement can be given is to discredit or fail to discredit the witness's evidence at the trial.
Evidence — Previous Statements — Distinction from Depositions — Weight
Previous statements alleged to have been made by a witness are far weaker than depositions, as depositions are given on oath and the accused has an opportunity to cross-examine the witness, whereas alleged previous statements may not be written down at the time, are not made on oath or in the presence of the accused, and are merely a matter of recollection.
Evidence — Cross-Examination to Credit — Effect of Discrediting Witness
If by cross-examination to credit a court proves that a witness's oath cannot be relied on and the witness has sworn to a particular fact, the court does not thereby prove the opposite of that fact; there is simply no evidence on the subject.
Criminal Law — Theft — Proof of Essential Elements — Receipt and Failure to Account
In a prosecution for theft by a clerk or employee who allegedly received money on behalf of an employer, the prosecution must prove that the accused received the money and failed to account for it; failure to prove receipt is fatal to the charge.

Legislation cited (3)

  • Penal Code s.252
  • Indian Evidence Act s.155
  • Indian Evidence Act s.157

Cases cited (3)

  • Rex v Ireri alias Shiengo s/o Ndwiga (8 E.A.C.A. 61)
  • Hobbs v Tinting [1929] 2 K.B. 21
  • Cababe v Walton-on-Thames Urban District Council [1914] A.C. 102

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rex v Gilani (Criminal Appeal No. 120 of 1945) [1945] EACA 28 (1 January 1945)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.