19800222 TZHC Dar es Salaam

•.V• £/e,Q1)/ - IN THE HIGH COURT OF TLNZANIA • T DiR ES SLLLIM A\PPELLSIiTE JURISDICTION • HIGH COURT CRflVIIfLL PELL NO.223 OF 1979 ORIGINJI, CRflVIINiL CLSE NO# 345 OF 1979 OF THE DISTRICT COURT OF DIR ES S.LA LLAq DISTRICT AT KIVUKONI Before J.S.Kimenya Esq; Senior Magistrate JMiNI A JPPELLJ ~ II versus THE REPUBLIC... •11•••••• . ........... .. .RSPONDENT CHLRGE: Obstructing a Police Officer ' in the due execution of his duty contrary to section 243(b) of the Penal Code Cap.16 Vol.1 of the Laws. JUDGMENT MLPIGINO, J. - i1VLNI KILLWI was convicted by the district court at Kivukoxij of obstruction under section 243(b) of the Penal Code and sentenced to a fine of shs.20001— in defaull to imprisonment for six months. He is aggrieved and has preferred an appeal against both the conviction and sentence. The prosecution led evidence to show that on 8/1/79 at about 8 p.m, two militiamen who were on patrol duty at Kipawa' in Dar es Salasm arrested one man / called' iiniri on suspicion that he was manufacturing a prohibited liquor. They placed him under their custody at a public building pending the arrival of their superior. While there the appellant who was related to the said Jmiri excitGd1r came there leading a. group of people. In a fit of temper the appellant addressed the two militiamen in the following terms: "No body is going to arrest my elder brother. Either you let him free or I break your guns". Each of the militiamen had a semi automatic rifle and when he got nearer o n e of them reacted by firing in the air inorder to hold him off. The appellant's companions disrersed in fright and left him alone. He was also arrested and then brought to court to answer the charge. 2/..... . I., - 2- He denied in court that he attereC1 any threat to the militiamen. He alleged that he had only approached them d inquired why they had arrested Jrniri without informing his ten cell leader. The learned magistrate found thaL'the prosecution case was the true account of what had happened. The appellant has on this appeal attacked that finding. He submits that the magistrate erred in accepting thee evidence of the prosecution witnesses as the truth/ and in dismissing his defence as false. I regret to say that I see no substance in that criticism. The question whether the witnesses were truthful or not was one of fact and on principle I cannot say that the learned magistrate was wrong in his assessment. I will dismiss the appellant's contention. I think the only point which deserves close attent- ion here is whether the facts as found by the learned magistrate amounted to the offence charged. The appellant stood charged with wilfully obstructing a police officer in the due execution of his duty and the particulars allegel that he prevented the militiamen from arresting ho said .miri. Two questions arise: (a) whether the conduct of the appellant constituted obstruction within the meaning of the penal section and (b) whether the facts as found by the learned magistrate comported with the avorment of the particulars of the charge. -' On the question whether the conduct of the appellant could be called an obstruction, the Rupublic has expressed the view that it could not be so called. For myself I think it is helpful to have regard to the observations made by • the judges in India as to the construction to be attached • to that word, section 186 of the Indian Penal Code being almost identical terms with ssotion..243(b) of our Code. •t is said that 'obstruction" in the context means actual obstruction i.e. actual resistance or obstacle put in the way of a police officer in the discharge of his duty and that though it generally implies the use of criminal force, threats of violence made in such a way as to prevent a police officer from carrying out his duty might easily amount to an obstructior,partioularly if such threats are bo.ipled with an aggressive or menacing attitude on the part of the person uttering the throats, and still more so if they are accompanied by the flourishing or even the exhibition / - '-,.- . ft- ' - of some kind of weapon capable of inflicting physical injury. In other words, mare thr 3ats, if they are such as actually stand in the way of a police officer and prevent him from carrying out his duty, amount to an obstruction: See Law of Cririies by Ratanilal and Thkore 14th edition P.440* In the instant case there was no question that in arresting imiri and placing him under their custo&y the two militiamen were discharging their public funct- ions. It was established that the appellant who was leading a gang came to the scene and threatened the militiamen. He wanted and tried to rescue imiri from the custody of the militiamen. He held out threats of violence to the militiamen with a view to inducing them to surrender imiriv The threats he posed was so intense that one of the militiamen had to fire off his gun to head it off. And there was no question that the appellant did so willingly. I think, in my' considered opinion, that what he lid amounted to wilful obstruction under the penal provision. On the question whether the facts comported with the allegation set out in the charge, I think the answer is no. It was evident that the appellant was not trying to prevent the miltiamen from arresting Amiri. For the militiamen had in fact alread.y arrested imiri long before the appellant and his group descended on the scene. It was evi&ent that what the appellant actually' intended • and endeavoured to do was to rescue imiri from a lawful detainer. The question which arises then is whether this dispaxvty between the charge and the evidence was such that it rendered the conviction bad. I think, with respect, that it could not have that effect. I am inclined to think that the error in the charge was, in the circumstances, on1yatrjvjaone and that it did not occasion a failure of justice. So I will sustain the conviction and dismiss the appeal from its The sentence was stiff but it was not unduly' severe. It was intended to serve as a warning to other people who have a penchant for meddling with the administration of jus±ibe, Jccordingly', the appeal fails in all respects and is dismissed. 4/. . .. 4- Delivered in ou.rt. ippellant present Mr. Safari for the Republic 22nd February,1980. (D .P .MLPIGJO) Judge