Bartazar S. Mjagazi v Republic 1983 Tlr 135 (Ca)

BARTAZAR S. MJAGAZI v REPUBLIC 1983 TLR 135 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Munyera J

November 15, 1983

CRIMINAL APPEAL 21 OF 1983

Flynote

Criminal Practice and Procedure - Person pretending to be a victim of police activities - Whether proper to charge him with impersonating a police officer.

-Headnote

The appellant, and one Ominde (PW1) and his friend Paulo had been ordered by one man who declared himself to be a police officer to assemble at a certain place for the purposes of a search. The appellant had promptly obeyed the order to be searched.

It was discovered that the person who claimed to be a policeman was in fact not a policeman and that the appellant knew that the man was not a policeman and was actually helping him to swindle Ominde and his friend Paulo. The appellant was arrested, charged for impersonating a police officer, was convicted and sentenced to 3 years' imprisonment.

Held: The appellant, for pretending to be a victim of police activities, was not properly H charged with impersonating a police officer for he never suggested that he was a policeman nor did he purport to do anything as a police officer.

Case Information

Appeal allowed.

No case referred to.

[zJDz]Judgment

Munyera, J.: The appellant was charged with personating a police officer. The facts were strange. On 4/7/81 at about 4 p.m. one Ominde John (PW 1) who was student somewhere, was with his friends along Kaluta street of Mwanza town. The appellant passed by them. Another man appeared there. He declared himself a Police officer and said he was checking the identities of travellers because an Indian had been beaten and they were looking for the culprits. That man ordered Ominde (PW 1), the appellant and one Paulo Mahemba, to assemble at a certain place for the search.

He ordered them to produce any money each had. The appellant was the first to respond to that order. He said he had Shs.6000/= and surrendered an envelope which contained that money. On counting the amount it was found that it was Shs. 6,200/= not 6,000/=. The police D officer rebuked the appellant that he had told lies in saying he had Shs. 6,000/= whereas he had 6,200/=. He then asked Ominde (PW 1) and his friend Paulo how much money each of them had. They said they had no money with them that time. As these proceedings were on, other people came there. It appears they knew about the policeman because as soon as he saw them he ran away. One of those people who arrived there was PC Faustin (PW 2). He knew the appellant to be a member of a group who swindle people. He arrested him. It was discovered that the person who said he was a policeman was not a policeman. The appellant knew the man was not a policeman and was helping him to swindle Ominde and his friend Paulo. He was charged accordingly. In his defence he said he was passing and found a group of people including PC Faustin (PW2). Those people ran away, then Faustin turned on him and said he was a member of the group that ran away. The trial magistrate rejected his defence, convicted and sentenced him to 3 years' imprisonment.

Obviously the appellant was a member of the group which was pretending to be police officers. This was borne out by the fact that he easily surrendered his Shs. 6,200/= to one of that group and made no mention of that money either at the Police Station or in court. It was a contrivance to impress other people that he was obeying the orders of Government officials so that others do the same and his conspirators swindle the money they purport to seize. The question is whether he was properly charged with personating a police officer, remembering that he never suggested that he was a policeman. He never I did anything by virtue of being a police officer.

He only pretended to be a victim of the police activities. Could he be said he was aiding A and abetting? This was too indirect an act to justify the application of the doctrine. I allow the appeal. I quash the appellant's conviction, set aside the sentence and order his release.

Appeal allowed.

1983 TLR p137

C