19770802 TZHC Dodoma 1

11%

IN THE HIGH COURT OF TANZANIA kT DODOIYLA APELLL.TE JTJRISDIC TION HIGH COURT IMINAL APPiAL No.

105. OF 1977 CF CRIMINAL APPEAL No. 106 OF 1 977 ORIGINAL CRIMINL CASE No. 136 OF 1976 OF TI DISTRICT. COURT OF.KONG1,11i.DISTRICT AT KONGWA BEFORE: A.L SANGA . . . . . . DISTRICT M.GISTTE P4TRICK 5/0 MALOLE ) 'P'LL NTS 2 .1VIBA.TYANI /QBOILITI. )• . . ., rsus • THE REIYBLIC '.. .. ... * . . . .. RESPOND]T CHt.RGE Utteing coui;erfeit not 0 c/s 360(l)-of.the Penal Code.

JUDMEN iIPET'. 9 J The two appellants, Patridk Mel9le and. Mbat.yani : BPleti r were each charged with and convicted of an offence cited in -the charge shEet as t'Utterin, counterfeit note c/s 360(1 ) of the Penal Code," and were each, sentenced to two yea's.:• im.prisoirnent. They now appeal, and their appeals are herby consolidated. . . . Before I pbceed tO deal with the merit s of the appeal I would like :to dispose of two procedural- ouestions, In the first place, the manner •in which the charges were .ramed left much to be desired. The charge sheet reads as follows: •. STATEPNT OF OFFENCE: Uttering cbunterfeit iote c/s 360(1) of the Penal Code. • . PARTItJLiR5 OF OFFENCE 1st accused: That IvTbatyani Boleti •. . . is charged on the 1st day:'bf Decembr, •• . . 1976, at about 22 hours at Kowa Pcis shop Kongwa Sub-District, Npwapwa • . District, Dodoma Region, was found in posession of one countèrfëit (note) of shs. 100/- numbered L 303223 knowing the same to be counterfit. PARTICUtt.S OF OFFENCE 2nd accused : That Patrick Malo1 i chared on the let day of December, 1976, at about 21 hours at Kongwa PcnTe shop Kongwa Sub-District, Mpwa-pwa District, Dodoma Region was found in possession of one counterfeit note of shs, 100/- numbered L 303215 knowing the same to be. counterfeit." Td start with, scction,360 of the Penal Code does not create the. offence of "uttering a counterfeit

note." That section creates the offence of uttering counterfeit co Besides, sectiOn 360 of the P.nal Code does not have a sub- section.. From the partiulars of the charges, the Oharges ought to have been laid under section 348 . o the Penal Code which creates the offence, inter alia, of being in unlawful possession of forçed bank note or currency note. •It is apparc:t. from the particulars of the charges, that the lead trial igistrate and The public prosecutor had section 348 of the Penal Code in mind. * .2. 2 - Inasmuch as the charge cited the wrong sedtion of the law, the charge was defective. What, then, is the effect of such defect? Section 346 of the Criminal Procedure Code provides that:no finding, sentence or order made Or passed by a court of competent jurisdictipn shal l be rovereclo. altered on. an appeal or revision on account 'of eny error, ómision or irregularity in the complaint, summons. warrant, charge, etc. unless the court is satiefied that such error, omission or irregularity has in fact occesioned afailure of justice. The question, therefore,is-whether this defect in This case infact occasioned a failure of justice. In my view, where a charge has cited a wrong se.ction of tlu law, but the particulars of the charge clearly refer to actual offence committed, .d if the accused cannot be said have been under any m*sapprehension Cs to'..-theo4-fence with h ich he

stood charged then such defect is ci.iiable under the provisions of section 346 of the CrirninalPrócedure Code. In the instant case there Were two defects:the first was that a wrong secti,oi of the law was cited; the second was that it alleged llutterj.ng counterfeit note 0 1 ' The par±iculars of the charges, however, leave no doubt that the charges T. alleged against ,tho apellants were those of being in possessibnóf a forgri bank noteor currency note, which is an'bffence 'wndéf secticia 348 of the Penal Code' In my view, therefore, the fact that a w±ong section'of the law was cited. is a curab]J defect under the provisions of section 346 of the Crimin1 Procedure Code. The use of the 'words "uttering unterfeit were similarly unfortunate. The phrase Ui,t - ought tbhave'boen used was "bOing in poesessionof forged But be that as it may, in my opinion the language used camot have so misled 'the appellants as to have occasic:.';'d any feilure of justice. The particulars of the charges, as I have said conld have J.efG no doubt in the mind of any of the piellsts. Indeed - I would go so far as to say that a an fSed.bank — note 'i Th fact a counterfeit bank—note,,i'n that -' to cpunseit a banJo--note means the same thing as to forge it. On these grounds, theroforO, I hold that those two defcte are. -not fatal tc 'the onvictons as they are curable under the provisions of section 346. (,

f the Criminal Procedure Code. 'The second jDrccediiral irregularity in the charge sheet is that the charge sheet cites as one count what were really two separatecounts - one against each apellant. ' This was wrong. It has beei pointed out on more occasions than one 'that whore ioore'than one count is charged in one charge or information, -'Lhe counts must be set out separately and each count must contain The stat(,., 'en± of offence and the particulars thereof because each count constitutes a district .of-fence0 (Maitie v,. R. (196,1) E.I 47O.) '. However, this 'irregularI eid to have occasioned any failure of justice, and so cannot vitiate the convictiohs. Having-dealt with the procedura 1 aspects of the matter, f'I'WIll now turn to the merits, of the apeal.' The .prosecutir ".evider e "was that thing"the mateiialeiiight the two appellai. ;s went.to Konga pombe shop together, and on arrival'there, the second appellamt, Mbatyani Boleti, äsk'ed'The complairLt (Pw1) to give Them she. 9/- worth of pombe, which Pw.1 did., The secohd. ..appellant., then gave the Oomplainant what looked like a genuind shs. 100/— bank—note, en.d Pw.1 gave him she0 ...3 -- S - 3 - Later, the first appellant, Patrick Nalole also asked the complainant to give them she. 9/— worth of pombe, which the complainant did. The first aprellent in turn gave her another note which looked like a genuine shs. 100/—

bank—note. When the complainant said that she had. no change, the first apillant told her to keep the money and give her change the next day. These two notes were later found to be forged. Each of the appellants denied hving given the notes to the complainant. The learned trial district magistrate accepted the evidence of The complainant which was supported 1 that of Pw.2, arid Pw.3. Having perusedthe entire record, and bearing in mind that the learned magistrate had the advantage of seeing and hearing the witnesses, I am far frori persuaded that his findini;s of fact ouet to be impugned. In my view, the findings are fully, apported by the evidence. There was further ample expert evidence to. the effect that the two notes, fairly clever forgeries, were not genuine bank—notes, and the appellants gave no explanation as to how they came to possess the same; let alone evidence to discharge the burden that lay on them by statute that they were in lawful possession of the forged notes. In the circumstances, the convictions under section 348 of the Penaj. Code were inevitable. However, in order to keep the record straight, section 360(1) of the Penal Code shown in the char; is substituted with section 348 of the Penal Code. On the question of sentncos, I note that an offence under section 348 of the Penal Code attracts, as correctly pointed out by the learned magistrate, a maximum

sentence of seven years imprisonment. The art of forgery that went into the making of the forged note.rhad been developed to nar perfection. Although the appellants were first offenders, ti'': circumstai'es clearly called for deterrent sentences. Besid';e, there is the duty on everyone to protect our national currency. For these reasons I do not propose to interfere with the senbonces. They are to stand. As the same require confirmation by this court, they are hereby confirmed. In the result, save as. indicated herein, the appeals crc hereby dismissed. 4. / B.D. CHIPPTiI.

JUDGE Delivered in Court th,is 2nd day of August, 1977. 4Y I 7. B.D. OHIPETL.

JUDGE