Daudi S/O Thomas vs Republic (HC Criminal Appeal No. 259 of 1972) [1973] TZHC 179 (13 April 1973)

1 1r APPELLATE JUhISDICTIO1 HIGH QDURT CRIMUAL kIPEAL O. 259 OT' 1972 ORIGflAL CRIMfl'.AL CASE ]' OP 1972 OF THE DISTRICT, COURT OF ARUSHA DISTRICT AT ARUSHA Before W.A.T, Id..rmbo, Eeq,, Rasident Magistrate DATJDI s/o THOTIAS .,. . . .APPELLALT (Original Accused) VERSUS THE REPUBLI- C-P REOIDE1\T (rigina1 Prosecutor) CHAR(E Stealing by Servant c/as 265 and 271 of the Penal Code JUUGLEI\T 1 Makame, J. 2 The appellant was employed by P.V.1, D.Nr KAPOOR., s a domestic servant. P.4.1 told the trial court that on 11/5/71 when he and: his wife went home fOr lunch they found the key to the main door resting on a table. They 1ft iwatji appellant who would, in their absence, r-main at-Shore to perfrr th donestic chores The ap.pellai: : ws'n .o vhere to be 'seen a'nd duiTh thé course of the same afternoon the complainant discovered that the cupboard in the house had been prized open. In it had been a smell box containing 2,500/= and some jewellery: these were missing. He made a report to the police and the appellant was arrested in a shop in January, 1972. In substance the appellant in his defence contended • that he was no longer employed by Kapoor when the alleged incident took plce He was also said to have made to the police a caution statement in which he admitted to stealing, but only 1,600/=. The learned trial magistrate allowed the statement to be put in, asserting that it was not a confession, without advancing any legal argument in support of his view. The statement was a confession becaue:e in essence in it the appellant alleedly admitted to stealing from his employer, which was the charge he was facing, the precise amount not being materiaL It is true that P.W.2, D/S SEBASTIAP said that the first report of theft was made "sometire in April 1971 but, looking at the evidence as a whole, it is clear that he was meiely attempting to give an approximate date from memory. Evidently the complainant's dates aie more reliable. It was reasonable to convict the appellant, as the trial magistrate did, once he found the complainant' s story materially true, considering the circuietances revealed, coupled with appellant's failure to accunt for his abruptaid unceremonious exit from his employer's premises. P.W.4 JOA(IM JO}-II, an office employee of Kapoor, said that the latter reported the theft to him on the 5/11/71. P.V.l said it was 11/5/71. Quite clearli this was a slip of the t ngue, or of the pen, the and the 'il!' having being interchanged. The learned trial magistrate ought to have commented on this. -. 11

-2- It was impossible to accommodate the apparent disharony without some explanation. Like the. trial crtI am sati.fi.d that at the material time the apella.nt was stIll employed by the complainant, and that he stp.le as alleged. The punishmeht he got does not call' br'irtëiference. The appeal is entirely dismissed Jutice is not a cloihtered virtue. Not only that she should be., a1.lowe tor suffer,the .glaxe of public scrutiny bi,rbal,ao .itshould be poCsible for a higher tribuaal to scrutnize with ease the proceedings of the cour -t..below vhich ispensed that justice. then handwritings are illegible this is made difficult. In the present case my broth'e'jude admitted the appeal rnerelyecause-,the trial magistrates handwriting was not leible The typist who essayed to decipher it carrie out with -sOmethihg very unsatisfactory. I was myself often forced to go back to the original record and my concerted efforts there were not sufficiently rewarded. 'There were mistakes even in the typewritten judghe'nt vhich the learned trial magistrate happily certified to be a true and correct copy of original", althouch in parts it was hardly ,.intelligible,,.:ri. As a matter of courtesy and duty', trial court's' should endea/our to roduce a rsonably cleaxi and readable record of proceedings. -I Be Souza for the Re'publid TH .ARUSHM APRIL 13 1973.