19750312 TZCA Dar es Salaam2

\ IN THE H!GH COURT OF TANZANIA AT DAR ES SALA.AM APPELLATE JURISDICTION HIGH COURT CRIMINAL ii1PPEAL NO. 226 OF 1974 OF THE DISTRICT COURT OF Di{R ES SAIJV1M DISTRICT l'-'.U\.KTABli. BEFORE A.S. SEMZll.BA Esq., RESIDENT MAGISTRATE JOSEPH WILSON MSELLA • • • • • • • • • 0 • • • • • • • • Appellant versuss THE REPUBLIC • • • • • • • •• • • • • • • • • • • • • • • • Respondent JUDGEMENT KIMICHA. 9 Jr.: This is an appeal against conviction and sentence. The lower court judgerc1ent is repDoduced below for easy reference. JUDGEMENT The accused person J.W. Msella stands charged· with the offence of causing death by dangerous driving on the public road c/s 44 (1) (a) and 70 (1) (2) as arnnended by act No. 41/64 to which charge the accused has not pleaded guilty. P.W. 2 Turo.wagile Patric a girl of 12 years old state after having been subjected to a viva-voce examination that on 14/3/73 she with Sarah, SophiaP.W. 2 and some othe~ girls and they were going home after having attended a church sessio'n. They were about to cross the Kilwa road and Sarah had her one f' o.ot on the road·. Sofia said that they should wait for vehicles to pass before they crossed the other side~ and sarah was at the front of the group, and Sophia was immediately behind her holding the former' s left hand·. They were all lookingat one side when the car TJ'.. J 727 a1)peared suddely fDom their rigtt hc:md:' sliie::-. P.w.· 2 shouted to Sarah 11 a car" but by then it was tooo late and Sarah was knocked dovm 9 no motion. Sophia Daniel a 13 years ol/ girl P.W. 4 who was also subjected to a viva voce exrunination stated that at the material~ time they got into the road (Kilwa road) and suddenly they saw a car coming very fast and they got stunned but managed to pull out in tine with the exceritio:ri of sarah. The car did not honk, and it had an ash like colour and there was also a woman in it. She immediately before the accident held sarah's left hand with her right hand which got injured too by the impact of the car when the latter knocked the said sophia's.right hand. (1) The first point for determination would be about the identification of tho vehicle which had or has been the cause of the accident. The defence counsel had submitted that the said vehicle TAJ 727 a Volkswaton Saloon was not the one which had caused or which.had konhked~ tho. dese-ased Sarah'•. I It might have been some other car like a ford or so and that the deceased was pushed by the other children to the car Volkswagon TAJ 727.. But fron the evidonce of D.W. 1 Joseph Wilaon.·Msella who said that he saw a group of crlildren on her left hand side on a pave:ment or foot path when he was still far drivin[; a volkswagen saloon TAJ. 727 which had a total of 3 doors. He blew his horn and when he was about 10 yards from them he blew his horn again and passed them. He then heard a bang and when he looked behind he saw a child : ~_::_ ~ - lying on the road. He tbus went to Chang'ombe Police Station and thereby reported that a child had knocked his car. Even P.W.. 2 said the same thing, thus I have no hesitation to say that the car Tli.J. 727 a Volkm:agen saloon driven hy the accused at the material time had caused the death of the deseased. (2) The next short print for decision is whether the accused · ' had driven danc:erousl;:n and caused the demi so of Sarah. The proof we have to look for is the :manner of ;;he actual driving at the mc,tcris.l tir:10 and taking into stocik circunsta.nces wJ1ich existed thereby. Despite the fact that this court can rely upon the testimony of P.W. 2 and P. 11 :··4 as they have been sworn-without corroboration as a matter of law, but I an firmly of the opinion that this court is in doubt about whether the accused did honk or not~ lis I do find no corroborative evidence of this issue for determination, I give the accused the benefit of doubt. He might have blown his horn .• The accident had occured within the Sebra crossinc box, but not on the '.'.;ebra itself. A Zebra crossing sign post was a few feet on the right fron the area of accident and fron wher,2 the decens8d had fallen dm-m after the ir.1pact. The court visitec1 the , , scene end. he2,rdP. W. 4 1 s evidencG at the scene. The accused bac1 s-cated that the accident had occured far from the Zebra crossing. I do agree and express my opinion that i·~ was not on the actt1al paralled linos but was within the two parallqd lines naking a box enclosing the Zebra. Tho Zebra lines are at ri 6ht angles with the said lines. The accuseddid say that ho blow his horn 1rhei1 he was ten yards from the children and he was drivint:s at or about 35 - 40 nph. If the accused was driving at such speed and was about 10 y2rcls away then the accused was less than 10 yards m-my from the first line crossing the road fron one and to anothm' naking the Zebra crossing box. He trus approached tho Zobra crossing boxat a speed between 35 - 40 mrh. and he sm1 tho children off the Zebra box. From tho above found facts I am. disposed to find that tho accused had driven the vehcile in a manner danc;erous which wc,s in this case driving a motor vehicle at or about 35 - 40 mph. a fl!]W yards from the first Zebra orossing boundary linerunning from the loft side to the other side. Always a driver must stot at 2, Zebrn or drivo vory slowly. · P.W. 4 did submit that at the occurr!'lnce of the accident she was holaing Sarah's hand which got knocked too by tho car and was thus injured. The accused asserted that he was driving in the middle of the" .road at the r:mterial time, and I agree with him on this point as P.W. 4 states "we failed to run back off the roado" This means they werG already on the road crossing. "She went 01.L saying tbe car came very fast, her legs were thrown over the road. L. netal fell from the car." .•• /2 - 3 - I would not hesitate to say that metal was the near side moulding asper exhibit 'A' and near side means left side of tho car. From the evidence adduced the deceased was crossing tho road from right to left from Kurasini area towards Police lines and her right leg was exposed towards the right and the accused's vehicle came from the direction of the town. The medical post mortem report exbibit C states inter alia that "A deep cut on the right knee exposing the patella fracture of the loft tibia and fibula" .. One would clearly see that the deceased's loi:.ss wore se:verel;y damaged. Sarah was about 3 or 4 foot tall as P.W. 1 said in evidence. Exhibit A was tendered in evidence by P.W. 3 in evidence a police officer who did not inspect the vehicle, and the defence counsel did not object as in my opinion too, it was not improper. The report shows tlmt tho near sido moulding had cor1e off and tho near side. ·· - , door d~-:maged and rear mudguard damaged. "Therear side door goes without saying that it is not at the rearns there is only one door at each side of the car. The moulding came from the front left side 9 as the only damaged rear part is the mudguardo l'... nc1 the mudguard is on the loft side. Coupling tho fact I s of the Post morteI'.l report with exhibit B, I have a strong opinion that the deceased was knocked down bv tho vehicle TAJ. 727 which was driven by the accused. The moulding fell off due to the c ·~-'-~ /; contact and impact of the car against the deceased which was force ful. Such deep cuts on the knee and fracture of the left log would not have occurred if Sarah was merely thrown at the rear of tho car by the other children, I have a strong opinion that the deceased was thrown by the impact of car and hit cranium on the road, and in the process she died. The death was thus caused as consequence of the accident, and Sarah was not pushed by the others. B No reason had been given by the accused for the car not stopping or slowing at the Zebra, unless so0e explanation W3S given to this offect 9 there is patent evidence of negligence to constitute dangerous driving. More or so, when the cccused had been frequently rang tho same road. I thus do hoid that there is strone circumstantial evidence whose facts are i110.1lpa'1=0?-,y and are incompatible with the innocence of the accused and are in capable of explanation upon any other reasonable hypothesis then that of guilty. The prosectuinnhave proved their case beyond all reasonable doubt, and I thus find the accused guilty as charged. Sgd. A.S. Semzaba - R.M. 6/3/1974 The appellants grounds of appeal are that~- (1) T.p.e learned trial magistrate's finding th2:.t the accident occurred within a zebra crossine box and hence driving at about 30 - 40 □ •l'.) .h. was dangerous has NO supporting evidence. (2) The srJot which P.W. 4 guessed to be the one at which the accident occurred (more than ten months before) has NOT been LOCATED. In fact the · guessed spot was adjacent to a Zebra crossinr~ sign board and was interpossed by the ro~d landing to the Officers' Quarters and the saj_c1 sign board - please see attached sketch plan I to be read in conjuction with the attached cory of sketch map II drawn by Traffic Police (.P.• W.. 3). (3). The trial magistrate erred in drawing inference that the victim wo.s knocked by the car and that the victim did not hit against the left side of the car as a result of a push. The inference is WRONG because NO front part of the car(even a front ;'iu~gu4 ;rd1 was either damaged/dented or scratched The chrome moulding refeerred to by the magistrate was in fact from the left rear part of the cs.r. TnTIIillFOR.i.~ THE appellant prays that the conviction be quashed and sentence set aside. The appellant appeared in person before this Court during the hearing of the appeal but he did not raise any new point which was not dealt with in the lower Court's well oonsidered judgment. I ar1 satisfied that there was sufficient evidence in the ,..ower Court justifying the appellant's conviction. I am also of the opinion that the sentence was very reasonable. The appeal is for the above reasons dismissed in its eniirety. ¥~ A,./( l l M. p .L.KIMICHA f J. 12/3/75 Delivered in Court this 12th day of March, 1975. //~ ~?,I(.{ __:_c.1. i_ .. ( M• p • k~-- KI Mi CHA ) ti JUDGE /msk.