19940630 TZHC Dar es Salaam

~ TILE HIGll COURT OF TWZA1ilA AT DJ!.R 11:3 ~ .. AFF~ E JUIUSDI CTI ON '. CmflINltJt AF:P~ .&O. 35 OF 19.94, ~OI1'ii.U, CRJ:lvIINAL ~E 1·-m. 270 OF 1993 OF THE. DIST£°t OOUJF 0Jt£BARA :q,IS'£RrO'l1 i.:r IaBATIA VERSUS JUDGMENT QW1.i., J •,• The appellant was sentenced to ~ years imprisonment and disqualified. , from holding or obtaining a driving license for 3 years upon being :found guilty of causing bodily injuizy- through dangerous driving c/s 40 63(Z) & 27( 1)(a) of Act 30/73. It was ·alleged in the partj,culars of the charge that on 15/4/92 at about 21.30 hours at Mwendapole ~rea along Morogo~ road within the District of Kibaha, Coast itegion, the appellant drovo motor vohic],e TU. 1718 Fiat Lorry recklessly and at a high speed as a. result of which he collided with a ~tatione:cy Tractor TZ 74764 which ll'as parked on the left side of the road and caused bodily inju:cy to Hassan Musa to wit Hassan Musa's 102; was amputated. For tho prosecution there wore two eyo wi tnessos to the accident, These we11e Ra.esan Musa Koqba (Pti1) and Said .l'J.ly (.Pll2 )o According to 1. ,,,_,,w·re·r,-..,., ... 1.-............. - . . '-)~~~4¥ •tr•1•:tl~11i-r·~.►,rr:H~H• ,; ' I "· :,,r ·.. I I , . , ., I .::·, ' ' ,,,,. - 2 IIassa.n Mus.a Komba on the ~5/4/1992 :at about .8..oo p-.m. he 1had been dri:vi.ng a tractor Reg. ifo1 TZ 74764 along Mo:rogoro road at about' 8.00 p.m.. On rea,ching M w ~ e .as.ea the light system of tho tractor 1 failod. Ile decided. to park on the le~ sido. of the roado :Before he le~ ~.he driver's seat, a lol'-TY came from bah.ind at a high speed and knockoo. off 1the tractor and then landed off tho road, i..t tho scone tho road was flo.t t:aimac and straight, .'l,s a rosul t of the impact IIa.saan Musa Komba suffercdi an amputation of his loft log a.e ovidencod by a PF~ tendered as $ b i t A at the trial. The evidence of Saidi Ally who was a passenger or the trailer of the tract,or, corroborates that of Tiassan Musa Kombao . In defence the appellant made a swo:m statement., .l'..cco:rding to him tho tracto:P was 'in motion and had no indicators or l'Oflootors. Tho absence of inclicators and reflectors made it difficult for him to see tho tractor. In cross e:x:cUilination tho appellant stated that there was a raotor vehicle . approaching from tho opposi to side with full liGhts on nnc".. that nado it impossible for him to soe the tractor and honco tho collisiono It was azguod on behalf of tho appellant by learned counsel Mr. Bwahana that he should be exonerated. from blame because the complainant was negligent in not providing a;rzy- signal or mark to show that his tractpr was parked on the road. fut with due respect to the leamod counsel negligenoo of the coraplainant cannot exanpt the appellant from hio c1u-t;y to drive carefully. Had the appellant been careful ho ought to have seen the tractor and in oaso there was an oncoming vcll.iole with its full J ights on then it was the duty of the appellant to slaw down or oven stop completely and not to drive on wi.thout knowing what was in front of him. Driving on when one's , visibtlity has been cut off by_full li3hts of an en.coming vehicle constitutes d~erous driving as helcl by 011;:{~uko. J in tho case of Lawrence Ifaliki Vs:A 19]3 LRT n.12 OS$ which was cited by learned. Stat~ littoril.ey0 I l:..s regards sentence Mr, Bw:::J~,'.;ltln submitted that his client shoulcl have bean 1 I punished by a fine. :But So63(2)(a) of the.Traffic act provides for a minimum sentence of 2 years ir.tprisonment whore an offence under So40 has caused an injuZj" which amounts to grievous ha:rm. within the meaning of tl:..2.t expression in the penal oode. In this case tl:ore was no doubt that the injury caused. to tho complainant amounted to grievous hann. .As regards disqualification Unde~ S1 27 of the Traffic Act tho period of disqualification was also tho t~•·•"'W0*ff~,~ ,@:~i?·~~-.. 11 ": t'. r ~ . 3 'I minifill,lJ:l eot by law. So notwi thstonding tho fact ~b.at the appellant claimod to have had a clean driving record for 39' years the sentence impoeed on him was tho Jili.nimw;i set by law. In the result tho appool. against conviction and s.eutence is dismissod entirely, Jtr.DGE .Judgment delivered in the presence of Mr. Mtimbwa. State Li.ttomoy tor the .Republic. ;! i..t Daros Salaam,