19741223 TZHC Dodoma 1

dt fc I kLQ 1 IN THE HIGH COURT OF TANZANIA

AT DODONA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 119 OF1974 ORIGINAL CRIMINAL CASE NO, 33 OF 1974 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA. Before F. A Munyera. . . . . . . .. . . .Resident Ivfagistrate Hi.RMOHANDERSINGH. . . . . . . . . . . . . . . • . &Appellant versus THE REPUBLIC. . . . . . . . . . . . .. . . . . . • .Respondent Char Dangorous driving on the public road c/se 42(1) (a) & 63 (2) (b) of Act 30/73 Road Traffic.

J U D G M E N T Mws.iumo Ag. J. This is an appeal against sentence of a fine of She. 10,000/ or one year imprisonment passed by Singida District Court for a case of dangerous driving on the public road Contrary to Sections 420 )(c) and 63(2)(b) of the Traffic Act No. 30 of 1973 to which the accused person one Harmohander Singh pleaded unequivocally guilty. . The predominant point raised by the learned advocate: who drew, the memoraidum of appeal ±or, the appellant and which point materially has been supported by the learned State Attorney Mr. .Llimwike who appeared for the Republic is that the leamed. Resident Magstxate erred .in, imposing a fine. of She. 10 9 000/= without inquiring into the means of the appellant and taking into account the relevant factors such as the age, character and antecedents of the appellant. When commenting on this appeal the learned State Attorney pointed out to the Court that the trial Magistrate had obseried that he did not find any special reasons calling for a éntenôe less than the proscribed minimum sentence because the appellant said he had nothing to say in mitigation. It seems to be the view of the learned State Attorney and the advocate tha t on hearing that short and casual reply that the accused had nothing to say in mitigation, it was imperative for the learned trial Magist±ate to go further and inquire into the means and antecedents of

the accused. In principle I have no disagreement with that line of argument but I. must express my doubts tht in practice, ±ced with a bulk of pending cases, it is not alays easy to get into inquiries of refined details each time a Magistrate is about to pass a sentence, . . It is also a debatable point whether, after having been duly convicted, the accused has no duty to disclose to the trial court difficulties which confront him and which the court should take into account before passing sentence. If the accused decides just to stand idle without disclosing such problems to the court surely it would be ovorstretching the view of the Court's duty of inquiring into details of factual factors for mitigation. After all these factors are or invariably ought to be presumed to be within the knowledge of the accused person rather than the Court and to overemphasize the Court's duty of inquiring into such factors all along at the instance of the court would result into too heavy a burdoi on the Court, especially if, as is the case in some very busy stations like District Courts in Dar as Salaara and Moshi the Court is faced with very many froh traffic and other cases0 However by the above statement I should not be taken to moan that the Courts should be completely relieved of the duty of making some inquiries because most of the members of the public who appear beforo the Courts of

law to answer such cases are not conversant with the procedu law so that as far as practicable the courts should assist them in what they should disclose to the Courts in the attempt of arriving at a reasonable assessment of punishment to be awarded against the accused persons. Turning to the instant case the accused person was not all that illiterate and ignorant as to be excused for t'ie negative response he demonstrated to the Court when asked to state in mitigation. Therefore he is also to blame for the excessive fine which was imposed against him and I would definitely refrain from the temptation of placing the blame of what happened wholly on the trial Magistrate. Ls to what amount of fine would meet justice of the case it is again a debatable point but taking into account the circumstances of the case an(' the spirit of the legislation for such of'fences I feel inclined to think that a fine of Shs. 50001= would be reasonably adequate for such a case. From the record of the lower court it appears the appellant had paid all the fine of Shs. 10,000/=. In that event therefore I do hereby order that the District Court in question must see to it that a sun of Shs. 50001= is refunded to the appellant as soon as possible, In the result, this appeal is allowed to the extent as indicated heroin above Delivered in Court at Dodoma on this 23rd day of December 1974. 1 C- E.A. MWESIUNO AG. JUDGE For Republic: Mr. W. X. Mbilinyi, State Attorney. For Appellant: Absent.