Rex v Kaguru (Criminal Appeal No. 4 of 1946) [1946] EACA 64 (1 January 1946)

## APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

## REX, Respondent v.

## MBUTHIA's/o KAGURU, Appellant (Original Accused No. 1) Criminal Appeal No. 4 of 1946 かいこうぞう

Criminal Law-"Assaulting and wilfully obstructing a police officer in the due execution of his duty" section 247 (b) Penal Code—Charge defective for duplicity—Conviction not supported by evidence—Sentence.

A police constable was ordered to accompany the accused in his lorry to the police station. The accused was driving and the police constable sat next to him. On the way to the police station the accused stopped the lorry and told the police officer to get out as he was not going to the police station. While he spoke he held in his hand a pen-knife which he had removed from his belt. The police constable got out. The accused was charged and convicted of "assaulting and wilfully obstructing a police officer in the due execution of his duty" and sentenced to two years' hard labour.

The accused appealed.

*Held* $(12-4-46)$ .—(1) That the evidence did not constitute any assault.

(2) That when it is intended to proceed against an accused for "wilfully obstructing" and "assaulting" a police officer separate charges must be brought.

(3) That the sentence was manifestly excessive.

Appeal allowed.

Burke for the Appellant.

## Todd, Crown Counsel, for the Crown.

JUDGMENT.—The accused was convicted and sentenced to two years' hard labour for assaulting and wilfully obstructing a police officer in the due execution of his duty, *contra* section 247 (b) of the Penal Code. The evidence of the assault is in our opinion inadequate. This is the evidence of Gachoka, the police officer: "I said to Mbuthia (accused) how can you refuse to go to police station, your number has clearly been written. He said that is nothing and asked me to get out of the lorry. I got out of the lorry and I went and reported. I got out of the lorry because the accused had drawn a knife.... He took it from his belt.... He opened it. Accused said nothing when he took out the knife. He was holding it in his hand when he told me to get out of the lorry". This evidence lacks the essentials of an assault. It does not show that the accused struck the constable with the knife or used it in a manner indicating an intent to wound or strike. Much less does an assault appear to have taken place from another account given of the incident by the constable in a case out of which the present case arose<br>(Criminal Case No. 2832 of 1945) and which we have considered it proper to look at. There he said: "When we got near the prison the accused told me to get down out of the lorry. I got down because he had a knife with him and if we had gone to a lonely place he might have frightened me with it. He only told me to get down as he was not coming to the police station. I knew he had a knife because he took it from a clip attached to his belt. He opened the knife and I got down". An assault has not been proved.

We observe that the learned Magistrate framed the charge as "assaulting and wilfully obstructing", whereas the section 247 (b) refers to "assaults $\ldots$ or wilfully obstructs". Were it intended to proceed against the accused for wilfully obstructing as well as assaulting there should have been a separate charge as is the case in England. The section corresponds to section 38 of C.100, 24 and 25 Vict.

We infer from the facts of the case that the only form of obstruction alleged was the assault which would perhaps account for the charge being framed as it was. With the failure to prove an assault the appeal succeeds and it becomes unnecessary to consider the question as to whether the constable was acting in the due execution of his duty at the relevant time, a question by no means easy to decide. Had the conviction been upheld we should have reduced the sentence to 6 months' hard labour, a sentence of 2 years' hard labour in the circumstances of the case being manifestly excessive.

The appeal is allowed and the accused acquitted.