19821126 TZHC Mbeya

ry IN THE HIGH COURT 0F TANZANIA * AT MBEYA APP ELLATE JURI SDICTI ON HIGH COURT CRIMINAL APPEAL NO0 110 OF 1981 ORIGINAL CRIMINAL CASE NO. 394 OF 1981 OF THE DISTRICT COURT OF IRINGA DISTRICT AT IRINGA - Before F.M.K. Mwamwaja, Esq0 7 Senior District Magistrate MOHAMED BISHEL HUWELJ 000 . O ., 00000 .. O . 0.00APPEEJLANT 0000 0 0 (original Accused) versus THE REPUBLIC ..................... • . . •.. •... ORESPONDENT (original proseóutor) JUDGMENT MTENGA, J. - The appellant was convicted on his own plea of guilty of the offence of causing death through dangerous driving c/s 40 (1) and Section 63 (2) (a) ofthe Road Traffic Act. No. 30'of 1973 and sentenced to suffer two years jail. In add- ition, he was disqualified from holding or obtaining a driving licence for a period of three years. He is now appealing against conviction, sentence and order of disqualification imposed against him. The facts leading up to the accident in which the deceased tragically met the accident as narrated by the prosecutor in sup- port of the charge are as under:- "The accused Moharned Bishel Huwel is a resident of Makorongoni area, in Iringa town. He is a driver who owns a driving licence class "c". on 3/8/81 at about 2.30 p.m. one pedestrian, Mng'anzagala Mfalingundi was travelling along Pawaga road - Itamba village. She was proceeding to her home after visiting her neighbours. She was in the company of two àf her grandchildren. As they were walking, they saw a vehicle coming from behind. Her grand children advised the deceased to let the vehicle pass; hence the deceased and the children left the road and went off the road. As the vehicle TZ..4U54 Datsun pick up, approached them itstàrted going zig zag. It went off the road and kncked the deceased. After the accident the deceased was dragged to a distance of 55 feet and dropped her there. The deceased received broken right leg and head Injuries. The accused, Mohamed Bishel Huwel was the one who had been driving the vehicle. The report of the acciJent was made to police. one No. c.239 P.C. Datsn visited the scene. The victim was collected and taken to hos- pital. The constable also drew a sketch plan of the scene. At about 7 p.m. on that very day, the deceased died while in hospital. The medical report shows that the deceased died as a result of the injuries she sus- tained at the accident. I produce here the sketch plan of the scene of the accident, - tendered and marked Exh. p2. Later on, the accused was arrested and charged with the present charge." In answer to the charge, the appellant is recorded asrèplying:- "I admit the offence" After the facts of the case 'were stated by the prosecutor, the appellant was recorded to have stated:- "I have heard the facts outlined. They are all correct in every respect." Then the learned trial magistrate proceeded to convict the appellant and sentenced him. Mr. Muccadam the learned Counsel for the appellant argued that the particulars of. the charge and the facts as given by the prosecutor and accepted by the Court and the appellant did not disclose the offence of causing death through dangerous driving because there is a material contradiction in the particulars of the offence in the charge sheet and the facts stated by the pro- secutor. According to the particulars of the offence in the charge she&, the appellant is alleged to have driven his motor vehicle on the left hand side off the road and knocked the deceased who was travelling on the extreme left hand side of the said road whereas the facts sate'd by the prosecutor disclosed. another different sets., of facts in that the appellant was driving on the main road and as he was approaching the deceased, the.motor vehicle started going iria zig - zag wa.y.and went off the road and knocked the deceased. Mr. Muccad.arn.,submitted therefore that these were two different sets of facts and one wonders as to what particular sets of facts did the appellant, plead guilty to, and the proper thing for the trial magistrate to do was to enter plea of not, guilty and proceed tQ hear the case.. Time without S.. 0 0 è • /3 -3- number, this court always reminds the framers of criminal charges under the Traffic Act that the chargesare not always happily worded for the stitements of facts are always in- adequate in that:they do not distinctly state the acts of dange- rous driving on which prosecution intends to depend. The part- icularsofnegligence should always he set oUtin full in the particulars of the charge. In the ihstant case, the particulars o f the 'tharge do not disclos.e the act of dangerous driving but the facts of the case as stated by the prosecutor did disclose the act of dangerous driving in that the appellant drove his motor vehicle in a zig-zag way on the left side of the road and knocked the deceased who was on the extreme left side of the road. With these Lfacts, I amsatisfied that the elements of reck- lessness were fully revealed:, and the appellant was not under any misapprehension as with what he was charged. The defect in the charge is therefore curable under Section 346 of the Criminal Procedure Càde, Furthermore, Mr. Muccadam, the learned Counsel for the appellant argued that the trial magistrate applied the doctrine of "Reslpsa Loquitur"which is a presumption of fact which, in cases where it applies, shifts the burden of proof. . The maxim applies in civil cases whenever it is so improbable th:a.t such an accident Would have happened wIthout the negligence of the defendant, that a reasonable tr'ibunal could find without further evidence that it was So caused. Mr. Muccadam argued thatj the trial, Nagistrate seemed to have aplied this doctrine of res ipsa loquitur because the facts stated by the prosecutor and accepted by the Court and the appellant were that the motor 'vehicle driven by the appellant suddenly left the high way in a zig-zag manner and knocked the deceased who was onthe extreme l'eft, side of the V road. The manner in which the motor vehicle wen.in a zig-zag form was no fault of the appellant. Therefore, the trial magist- rate merely looked at the result of the accident and applied this '-1 I doctrine of "Res ipsa loquitur" which is wrong to do in Criminal Cases. I agree with the learned defence Counsel that this doctrine of "res ipsa loquitur" does not apply in criminal cases but I do not agree with him that the learned trial magistrate did apply this doctrine in the instant case. Before the accident, the car was being driven by the appellant in a normal way. and then on approach- ing the deceased, it suddenly went in a zig-zag way and swerved across the road and hit the deceased. It Is well known that cars., even in wet roads do not suddenly go in a zig-zag manner and swerve without reason when they are under the control of competent drivers. Unless an explanation is given which shows that for all practical purposes the driver of the car was not, for reasons beyond his con- trol, in control of it, driving It in a zig-zag manner on; approaching the deceased is on the face of it, a dangerous manouvre. The appel- lant failed to explain the reasons which made him to drive his motor vehicle in a zig-zag manner. To say that the doctrine of "res ipsa loquitur" does not apply to Criminal Cases, does not mean that a charge can not be proved by circumstantial evidence that is to say by irresistible inference of guilt of the appellant drawn from the established facts, on the facts as stated by the prosecutor, there- fore, the trial maistrate was justified in planting the éonviction against the appellant because the mode of his driving that is in "a zig-zag manner" without giving any reason as to why he did so was a dangerous driving and the appellant gave an unequivocal plea of guilty. i accordingly dismiss the appeal against the conviction. I now come to the sentence imposed against the appellant. Mr. Muccadani, the learned Counsel .f or the appellant strongly attacked the Sentence imposed against his client. He argued that in imposing the sentence, the learned trial magistrate was influenced by the age of the appellant as disclosed in the charge sheet which states that -. he was of the age of 24 years when as a matterof fact, the ape11ant by then was only 18 years of age and this is shown In his birth certificate. He further submitted that there were special reasons .. . . .15 4 -5- jrranted his client to he leniently treated as provided der section 63(2) (a) of the Traffic Act and these special are that the appellant was a boy of only 18 years of age was sorry for what he did and that was the reason he readily ded guilty to the offence. on the other hand, Mr. Urono the d State Attorney who appeared for the Republic argued that, are w.er.e.'no special reasons at all and according to him, special reasons must be reasons related to the offence and not the offender as a person. Section 63 (2) (a) of the Traffic Act provides:- ny person who is convicted of (a) an offence under section,4O shall be..liable to a term of imprisonment of not less than two years but not exceeding five years and the Court may in addition thereto impose a fine not exceeding one hundred, thousand shillings. ...... unless the court for specIal reaons, thinks fit to impose a fine or the minimum terms of imprisonment specified under this section. What then constitutes "special reasons" for purposes of imposing a sentence less than the minimum prescribed? The answer to this question is definitely that special reasons should be reasons re- lating to the facts which constitute the offence as well as those 'that relate to the offender. In the instant case, the age of the appellant is very relevant and if the learned trial magisra€e considered the tender age of the appellant, he could not have imposed a long period of two years jail but he could have given him a period shorter than that or he could even have given him a sentence of fire instead of jail. Since the appellant has already served a period of one year, no useful purpose will be served to substitute the sentence. Thus I set aside the sentence imposed against him and order his immediate release unless he is otherwise lawfully held there for any other lawful cause. It does not appear on the record that the appellant was called upon to advance "special reasons" before the order of disqualification was made and this offends Section 27 of the Traffic Act. It was the duty of the learned trial magistrate to explain fully to the appellant, after he convicted and sentenced .0.6., / 6 6 him that unless he showed special reasons., he would be disquaii fied from holding or obtaining a driving hence. There is a chain of authorities which need not he cited here which shows that f ailing to comply with this requirement, the order of disqualifi- cation is always exposed to be set aside.. In the result, Ihave not the slightest hesitation in allowing the appeal on this ground and I formally set aside the order of disqualification imposed by the convicting Court. It is so ordered. . ' . 4 ( C.G. MTENGA) JUDGE 26/11/82 -r Delivered in Chambers in the presence of Mr. Muccadam the learned Counsel for the appellant and Mrs.Maiecelac- State Attorney for the Republic this 26th day of November, 1982. (C.G MTENGA) JUDGE 26/11/82 • 4 • - &- - -