19830420 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA. AT. DAR ES SALAAM APPELLA1E JURISDI CT ION • HIGH COURT CRIMINAL APPTL NO. 95 OF 1979 ORIGINAL CRIMINAL CASE NO. 1121 OF 1977 OF THE DISTRICT COURT OF ILAL1 DISTRICT AT KIVUKONI Before L.B. MCHOME, Esq., -nRESIDENT MAGISTRATE D.P.P. •.........,...............,...0......0.,...A.PPELLANT versus ALLY HASSP.N , • . • , . . . . . . . . -. . . . . . . . . . . . . . . . . . . . . . RESPONDENT JuDGMENT This is an ajpea1 by the Director of Public Prosecutions against the decision of Dar es Salaam District Court in which the respondent was ac4uitted of all four counts in traffic case No.1121/77. The Director of Public Prosecutions set out S grounds of appeal. The faqts of this case are that the respondent .was driving motor Vehicle GTE 500 along Morocco Road. He was driving towards • the direcetiJn of Bagamoyo Road while the complainant one Justine • Ole Saibul PW1 was riding his motorcycle along Morocco road comt toards flojogoro road. Then t he respondent Is vehicle went to its wrong side where the motorcyclist PW1 was and hit the mo torcy ôlisL causing hi" to stf±er serious injury. The respondent did not stop he simply drove off to his home. Nor did he report to the Police Station. Sgt. Felician P2 got a report of this accident. He rushed to the scene of accident where he only found motorcycle No. TZ 2012 which had been involved in an accident. The car GTE 500 was not there. The witness made a sketch plan of the! scone and he visited the place of 1st ropo'ted accident. where he found one Ramadhan Issa who took him to the home of the driver in that first accident. They went to the home of Ali Hassari the respondent in this case dnere they found motor vehicle GTE 500. The vehicle was towed to Traffic Police station. The vehicle was badly damaged. It.was examined by the vohtclo Inspector one KibahaSinganoPW6. ThenLvehicle inspection report was issued. - • • -- 2 - The motor vehicle' had a burst tyre among other damages.. The respondent could not be found. Eventually on 20/11/74 at 3.30 p.m. the respondent came to the Police Station and introduced himself as All Hassan. PW2 interrogated respondent who claimed that he had been admitted in hospital after the accident, The respondent showed a chit allegedly obtained from the hospital0 But the chit had no stamp and it was undated. In an effort to check the authenticity of this chit PW2 went to Muhimbili hospital with respondent. He checked the records at the Ca- sualty ward and in the ward respondent n.med to have been admitted here was no trace of respondent's nanie. Eventually he charged. respondent as at present. In defence, respondent said that as he was driving towards his home on a day he hcd forgotten in 1974 along Morocco road he had a tyro burst and his vehiclo moved to the right hand side and Iocked a cyclist. He then drove on to his home as he was seriously injured and was admitted for three days. He was driven to Muhimbili hospital by his relatives whore he was troaod and admitted. After discharge he reported to the Police Station who then charged him. In cross-exuiiination respondent said that he was driving at 40 km. p.h. and that his wife took him to hospital. • The 3eaxned trial Magistrate found that the accident was due to a burst tyre saying that there was no evidence to disprove this allegation. The learned Magistrate acquitted the respondent on counts 1 and 2. The learned Magistrate also found that the respondent was soriously injured and had to go and look for aid in hospital. He therefore had good excuse for failure to report to the Police Station within twelve hours because he was admitted in hospital for 3 days. He found the chit which respondent said he got from Muhimbili hospital to be genuine arguing that not all medical chits had to be rubber stamped. He concluded that the fact that the vehicle of respondent was badly damaged and the fact that the complainant was badly injured made the learned Magistrate find that the respondent was also badly injured. The learned Magistrate acquitted the respondent on 3rd and 4th counts. The offences of which respondent stood charged with were (1) Careless driving on the public road contrary to section 50 . 0 13 a. 3 - arid 63 (2) (d.) of the Road Traffic Act No.30/73; (2) Causing bodily injuries through careless driving on the public road c/s 14 and 63 (2) (b) of the Road Traffic Act; (3) Failing to stop after an accident c/s 57 (1) and () and 63 (2) (d) of The ROad Traffic Act; and (L) Failing to report an accident contrary to section 57 (2) (b) and 63 (d) of the Road Traffic Act. The Director of Pbljc Prosecution:s in his petition of appeal said that the learned: Magistrate erred in accepting the atorl of respondent that he failed to report the accident bcaue ho had sustained some injuries and was hospitalized for th±'ee days. Finally he said that the trial Magistrate erred, in law and in fact in holding that the unstamped medical chit was genuine. In his submission in Court s Mr. Uronu for the appellant said that there was ample evidence to prove all the counts. J.o elabora- ted that: the defence of tyre burst as cause of accident should not have been accepted because common sense clearly shows that a vehicle with a tyre burst could not be driven from Morocco Road to Kijitonyama a distance of about 3 to L kilO.metres. After all it was the front tyre which is alleged to have burst. lie submitted further that the respondent had enough time to change or destroy the evidence as he disappeared and the vehicle was only found next day. I respectfully agree with the learned State Attorney for the appellant that the circumstantial evidence clearly show t the accident was not due to a tyre burst. As rightly pointed out by the ]arned State Attorney, it would not be possible to drlveLvehicle with a tyro burst 3 to 4 kilometres away. Moreover that would not be the fastest way of going to hospital for trea mont. Itis quite true that the responthnt had all the time to destroy or change evidence. I am fortified in this view by the fact that respondent has claimed that he was injured seriously and had to be taken tohospital. The defence given in respect of this claim of serious injury and admission in hospital is very contradictory. . Here is a very injured person who drives a car with the front wheel with a burst tyre up to his home. if the respondent was seriously injured as he claims howould not have been able to drive at all 1 t alone to drive a vehicle with a burst tyro in frOnt,. Furthermore the medical chit which was the ....../L -5- and secondly the fact that PWL did not hear of any tyro burst0 It is common knowledge that a tyre burst makes a lot of noise and that PW4 would not have failed to hear it. Indeed respondent himself says it made the sound of a gun to demonstrate how loud it was0 The respondent never referred to a tyre burst as the cause of the accident anyhore in the proceedings. It is only when he was asked to defend himself that he came up with the story of a tyre burst. The learned Magistrate should have rejected this defence on the grounds shown above. On the evidence before me I find that the first two counts were amply proved0 With regard to the 3rd count of failing to stop after an accident, the respondent did not put up any defence. The learned trial Magistrate found that the respondent needed to go for treat- ment at once and that is hy he failed to stop after the accidont With due respect to the learned Magistrate this reasoning is faulty because the respondent did not go to hospital by the accident vehicle. Indeed according to the evidence the respondent did not go to hospital at all. He had therefore no reason for Ce lure to stop at the scene of accident. According to the provisions of section 57 (8) of the Road Traffic Act which section creates the offence of failing to stop at the scene of accident, the burden to prove that it was not safe for the driver to stop shall be on the person charged. It cannot be said that the respondent dis charged this burden in any degree. I therefore agree with the learned State Attorney that even this count was proved. FinalJ' with regard to the Lth count of failing to report an accident, I agree with the learned State Attorney that it has also been proved.. As pointed out earlier, there is no evidence, when the medical chit is excluded, to show that the respondent was seriously wounded. I have already held that the so called medical chit which was produced in the trial court as exhibit C is fake. Apart fromthe claim of respondent that he was seriously injured which claims are untrue in the circumstances of this case, there is no evidence to show tha he was so injured. If respondent could drive to his home at Kijitonyama, he could certainly also drive to Oyster Bay Police Station which is by far nearer than Kijitonyarna. Therefore even this count has been established beyond all reasonable doubt. 0 0 9 0 0 0/6 All in all, I set aside the acquittals on the four counts and substitute thereof convictions on all four counts. / - - ......ThA 0 kHAT Ag. J1JDGE L11 1/.83 Court: Judgment delivered in the presence of Mr. Uronu State Attorney and in the absence of the Respondent who could not be found for a period of almost 4 months despite all efforts to get him. In view of the provisions of ss.202 and 202A of the Criminal Procedure Code relating to conduct of cases in absence of accused person, the court is of the view, that those provisions can be stretched to cover .a situation like the present one. The court will therefore proceed to pass sentence in the absence of the respondent for the same reasons as those giveh above. A0 BAIiAbIN............... Ag.JUDGE 22/Lp"83 Mr. Uronu The respondent is a first offender. Furthermore, the respondent committed a serious offence and he had tried to evade the truth throughout the case and because it was a .serious injury to the complainant, I pray for a severe sentence bearing in mind the loss caused to the government and also the misery the complained experienced. Sentence: I agree with the learned State Attorney that a severe sentence is called for in view of the circumstances of this case. I sentence respondent as follows: 1st Count: A. fine of shs.2,000/= or three months ? imprison mont in default. ,Aid Count: IL fine of shs.10,000/ or three monthF 1 imprison- mont in default. 3rd Count: A fine of shs.2,000/= or three months' imprison- ment in default0 0/7 . . 0 -7- 3 L.th Count: A fine of shs.2,000/= or three months' inprison- mont in default. All the sentences to run consecutively. The respondent is further disqualified from obtairing a drivirg licence for a period of 3 years. His licence is cancelled for this period of three years. A. BA A. JUDGE 22/L1./ 83 Order: The respondent is further ordered to compensate the complainant in the sum of shs.1,0001 for pain and suffering caused to him, --. -T? _--- HAT• Peg. JUDGE 22/L/83 Order: Warrant of arrest to issue against respondent who should be apprehended in order to serve the abov.e sentence. - - - A. BAHAi..\ - -- .. -- ' Ag. JuDGE \ 20/14183