Rex v Bakari (Criminal Appeal No. 110 of 1940) [1940] EACA 20 (1 January 1940)

## COURT OF APPEAL FOR EASTERN AFRICA

Before WHITLEY, C. J. (Uganda), WEBB, C. J., and WILSON, J. (Tanganyika)

## REX, Respondent υ

## BAKARI BIN YUSUF, Appellant (Original Accused) Criminal Appeal No. 110 of 1940

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law-Entering a dwelling-house with intent to commit a felony therein-Information should show the particular felony intended-Failure to disclose the particular felony intended not necessarily a fatal defect.

Held (29-7-40).—That an information of entering a dwelling-house with intent to commit a felony therein should specify the particular felony intended but failure to do so will not be a fatal defect if the accused was not thereby prejudiced.

Appellant absent, unrepresented.

Smith, Crown Counsel, for the Crown.

JUDGMENT (delivered by WEBB, C. J.).—The evidence in this case is very clear, but undoubtedly the information is defective in that it states only that the appellant entered a dwelling-house with intent to commit a felony therein but omits to specify, as it ought, what was the particular felony intended. In some cases this might be a fatal defect, but in this particular case it must have been plain to the appellant from the evidence of the first witness that the suggestion was that he was attempting to steal the tin box or its contents. As was said in Balmakand Ram v. Ghansam Ram (22 Cal. at p. 405), "we must be guided, not by the undefined possibility of the accused having been prejudiced, but by some suggestion which a reasonable man can accept, that there has been prejudice to the accused". Where the Court feels that there is no possibility that the accused can have been prejudiced by some error or omission in the charge or information the provisions of section 335 of the Criminal Procedure Code may properly be applied. But we cannot too strongly emphasize the importance in drawing up informations and charges of giving the accused full and precise particulars of the offence with which he is charged. Section 335 must not be regarded as a panacea capable of curing all deficiencies; it cannot be invoked where there seems to be a reasonable possibility that the accused may have been prejudiced. Having regard to the record of the appellant the sentence is not excessive.

The appeal is dismissed.