19771210 TZHC Mwanza 1

IN THi HIGH COURT OF rZLJIi iiLLTE Ju: 1'U ICT B3N H1GH CUT CRIL:i.L 214 OF 1977. CF. T4ISC. CR.CUSD NO.11/77 (origina .m:ina1 Ca No.' 70.of 1976 of 'the l'istrict Court of. Bukoba Dstr:ict,..at;Bkcba - Be±'cre SB. .Charn: o- hsq.; Resiien Magistrate) S TNSLz uS . • .. . ...., . . • . . . . . . . . . . . . . . . . . . . •.. . . versus 'Hi dEPI5BL1C.. . . . . . . . . . . .. • .. . . . • . • . . . . . . . .' . . . • -. . .. . . .iLSPONDENT HG:1.Persont'in' a public. seivant c/c 100(2) 'of the: Penal C91e. 2.Obtain'ing money by fslse pretelloos G/s 302 ..nf.t.he Feni Code. JUDGiNT LUGiKING1R, "J.: . . . On 19 Jnuey, 1976, in the t'niship oI Bukoba, the .peliant repriénted to the c3mp1ainant, a * hoolbo, y that he was a poli-ce const'o1e investi'ing a tht. .To th:t and, he ordered :t boy to siirrerder anynorey ha had. The boy procnced Shs 200/=. . He was given an enel'pe in !hich he put the money and hnied. the ;,eiveIope f,o th& pe , 'l-i. The appellant hd' several such .env.elnpoae f'ter e tire h pretended to retr'e the rnon:y envelope :tcy te complainant, instruotihg' him to proceed to the Pclice Stti,onaiid the envelope 'staiped a idence 'that the mohy i't cort''ined was hi's lawful :'property. 'Whe the co1ainant arrived at toe Police St tion and related the stdryf the envelope was opened end nni. nieces of re spapre were found. Ttie . coriplairiaht gave a clescript.icn of 'ta appe1ant who was a.rested 'the foi1oing'1ay at the district court. . . .. Next day the .opainant was c1 dto Poic Station and etiere he pointed t t a appellant who was se-' 'c 1 with several othera. The ape1lante charged with personatin a pub1io.offioerand.obtainirig none hyaIse .prtences. He convicted and sentenced - to concurrent .term.sof one'year end't]raa yars impr:'oonme.kit. He then' appeald. . . ., . ... . ..... I. have no doubt whatsover that 'th appellant ins pro,ely ident.ifiu 'He apparently spent a considao1Dle time th the complainant, nearly an hour according to the latt3r,and was still d'rssd:.tri the same fashion the day the complainant f :ii. him in the Police Station. LThe appllant raised an alibi. He a11od that on '.18 :tnd 19 January, Mwanza seeing a coavicte'd reirtive at,.Butinb'a ;Th o - called relative, Dominic Mwombeki, was calli ns a deferie witriasso 'He denied any relationship with or any knowledge of the appellant and denied ever seeing, him at Butimba. I am satisfied and: agree with the trial magistrate that it is the appellant who personated himself to the complainant and obt'a nd moYfey in tio process. This appeal. was admitt.e'i'to consi,cr, mainly, whether .th' appel lent was properly ch.ar .g.eC for bat . t-erscnation by false pretences. The first count was laid under s. 100 (2) of the Penal Code, stating that the appellant iaisaiy represented himself to be a police constahie. It seems to me first, that the particulars were inadequate. Under s.lOO (2) it is :n,'t enough that there be false representations. The accused must als alleged to have assumed to do any act or to nave attended in any place for the purpose of doing any act by virtue of his purported employment. In this case, for instance, the particulars snould ho,vo alleged that the appellant falsely represented himself to be a police constable and demandea money from the complainant purporting to inveatia:a'tc a crime. Fcdr the purpose of this appeal I need not consider whether the inadequacy was injurious to the proceedings. Secondly, I agree with t ie learne. Jud6;6 ho admitted the appeal that the offence under s.100 may be c:.nt::inud in the offence under s.302 as to make the former superfluous. Section 302 provided that "any person who by any false pretence ....... . cb't-ains ......... anything capable of being stolen . ......... is ui'ty f a misdemeanour.........." It was by reason f fa1ely rretenii i; 't' n. - police c'ohstable that the a;pellant euccaeo,ed in reJ.i.vin L "r'"li,an't ::f hs 'h.c7fflI.. 2. since s.302 speaks false pretoo , it must inc1uie the ersc;nation of public officers eswell. cen therefore safely conclude that when a 'cn obte ins any:in cab1e of being stolen throuh.theonation of a .p1ic officer, the of'ence committed is that of obtaining by false oretences niy. Hence, even in the instsif.n tht the ±it cepn. aas superfluou. It was already cônteine in t1so06r1 ôount. Is sup iy is demonstrated by the fact thet the particulars the second count named the appellants fse 1orties 's ns LSr)1tIOfl of a p9lice constables For tnes roe sons, I ili le.•- the ,ppe. first count and quash the conviction 3nd sen..oiico thereon. The second coont is, on the other .and, not free from difficulties. he.aslanb is a crimixrH. ornJurr. ihile ; is true that he raceivJ the 'poOCy through i Jso repr T17 it is equally true tiat he kot it through a G ok. In a nezoevure that never registr.i en a cmplainrnt's i , the apoellant returned evep stuecf with trash anti kept the money envelope to himself. It was therefore sugesti to me that a Lent should have been harged or convicted fj of cheating under a. 3O e the Penal Code rather of oteinn by f U se pretances. I reoiate the suggestion .gretly, but I must confess that trio I±atncon beteen cheating and cbtaiiri by false pretncas has au s deluded me. I can only point to tn. fact tii t in cheetin' theo r ust be a fraudulent trick or levice but, tr'trì, -i- he trick or device, acing fraudulent, is a false presbntaticn of som. kind. Tile p.Lrblem of atbemotang to differentiate tno two 'affencas was hinl d by falile, g. 'Ti. (as he thn s) in Bleslus Ndambaliio v. Lblic,1973 L R T n.85. iud with thq two s a he cited - zar I o v. _LLepublic 1969 HCD n.127 and John Joeph ieublIc, 1969 HCi2 iiel71— he imonstrated the the absurduty to which these attempts lead... I am therefore inclinec to the view that wh re j as in tis cas he rcbs of the case reveal é combination oftha elements found in ss.302 and 3b4, thn.court may safely convict on whichever is charged. . '__ 1"t is for this reason that I will not consilor ny subtittate a ioo on under , s.187(2) of the Criminal Procedure Code . suggastd to mO. In summary, this appeal has beon allowed •oi the first-count. it is however dismissed on -tbe s'aconl conn and the co.rwictioh• and sentence thereon are uphold. . . ..... .. ' - .o•• - .. . - iu. - LJiNZi. K. .S.K.LJGL..:!i.. I.- - JUI) - -1, J. •