JUMA BAKARI v REPUBLIC 1985 TLR 175 (HC)

JUMA BAKARI v REPUBLIC 1985 TLR 175 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

March 16, 1982

CRIMINAL APPEAL 20 OF 1980

Flynote

Criminal Law - Rogue and vagabond - Being a rogue and a vagabond c/s 177(2) of the

H Penal Code - Ingredients of the offence.

Criminal Law - False information - Giving false information c/s 122 of the Penal Code

- Ingredients of the offence.

-Headnote

The appellant was convicted of being a rogue and a vagabond contrary to s. 177(2) of

I the Penal Code. No evidence was adduced to show that

1985 TLR p176

SISYA J

he was going about procuring and gathering or collecting alms or charitable

contributions A under false or fraudulent pretence. The appellant was also

convicted of giving false information to a person employed in the public service

contrary s. 122(b) of the Penal Code. The appellant had reported to the Police that he

had given some money to PW3 for onward transmission to another person but PW3

had misappropriated the same. B Apparently, he was found guilty because he could

not prove the giving of the money to PW3.

Held: (i) To convict a person of being a rogue and vagabond, it must be established

that the person was going about as a gatherer or collector of alms, or was

endeavouring C to procure charitable contributions of any kind under false or

fraudulent pretence; as no evidence was adduced to show any of those things in

relation to the appellant, the conviction was illegal;

(ii) the mere failure of the appellant to prove his allegations does not

necessarily D make the allegations false; it rests upon the prosecution to prove that

the information he gave was false, and that he knew or believed it to be false;

Case Information

Order accordingly. E

Case referred to:

1. Joseph Odhengo Ogongo v R. [1954] 21 E.A.C.A. 302

Judgment

Sisya, J.: For a conviction to stand for the offence of being rogue F and vagabond

contrary to section 177(2) of the Penal Code it must be established, beyond all

peradventure, that the convict was going about as gatherer or collector of alms, or

endeavouring to procure charitable contributions of any nature or kind, under false or

fraudulent pretence. Not even a grain of evidence was adduced towards this G end

in the instant matter in relation to this appellant. Yet he was, on count one, charged

with and convicted of that offence, that is that of being rogue and vagabond contrary

to section 177 (2) of the Penal Code, and he was conditionally discharged for a period

of twelve months. The conviction is illegal and it cannot, therefore, be allowed to

stand. H The same is hereby quashed and the purported order of conditional

discharge passed thereon is set aside.

On count two the appellant was charged with and convicted of the offence of giving

false information to a person employed in the public service contrary to section

122(b) of the Penal Code. The salient facts of the Prosecution case show that the

appellant reported I to the Police

1985 TLR p177

SISYA J

that he had given PW3 some money, proceeds of a meat business in which he and

PW2 A were interested, for onward transmission to the latter, that is PW2 , but

PW3 had misappropriated the same. PW3 was arrested in connection with the

matter but he was subsequently released. In their evidence in the Court below both

PW2 and PW3 denied that PW3 ever handled any cash from the said meat business.

This was contradicted by B the appellant and one Apelesi Moses Shemkingo (DW3)

who worked as a labourer in the appellant's butchery at the material time. These two

persons asserted that PW3 was actually the person who was the cashier at the

appellant's butcher. The learned trial Magistrate rejected the defence story simply by

reason of the fact that the handing over C was not reduced in writing. The appellant

retorted that there was no handing over certificate because of mutual trust that then

existed between them. The Police officer who investigated the case, PW4, had earlier

on told the trial Magistrate at the hearing of the case that the appellant had no proof

that he handed over the money to PW3. D

With due respect to the learned trial Magistrate the mere fact that the appellant failed

to prove his allegation does not, ipso facto, mean that the report he made to the Police

was false. For a conviction on count two to stand it was incumbent upon the

Prosecution to prove, among other things, that the information which the appellant

gave E was false and that he himself knew or believed that the same was false. On

the evidence on record it cannot be said with moral certainty and to the exclusion of

every reasonable doubt that the appellant deliberately made the report which he

himself knew was false. For this reason the conviction on count two too is quashed

and the sentence passed thereon is set aside. F

The record of proceedings of the trial Court shows that when the charges were being

read out to the appellant he, i.e. the latter, behaved in a manner which, by every

civilized standard, was disrespectful. The learned trial Magistrate took cognizance of

the contempt of Court and, following the procedure laid down in the case of Joseph

G Odhengo s/o Ogongo v R. (1954) 21 E.A.C.A. 302 proceeded to deal with him

under Section 114 (1)(a) of the Penal Code. The appellant refused and/or neglected to

answer relevantly when given an opportunity to do so. He cannot now be heard to

complain against the course of action pursued by the trial Magistrate. If anything the

H appellant, now has himself to blame because he, albeit unwillingly, forfeited his

right to be heard on the point. He was eventually sentenced to three months

imprisonment. On my evaluation of what transpired at the material time I am

satisfied that the conviction on this count was proper and it is hereby upheld. In the

final result this appeal succeeds to the extent indicated. In all other respects it is

dismissed. I

Order accordingly.

1985 TLR p178

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