[1950] EACA 428

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal, and MAHON, Acting Chief Justice (Tanganyika)

# ARAJABAL VISHRAM MEGHJI, Appellant (Original Accused) $v$ .

# REGINAM, Respondent

## Criminal Appeal No. 455 of 1955

(Appeal and cross-appeal from the decision of H. M. High Court of Tanganyika, Crawshaw, $J.$ )

Tanganyika Factories Ordinance, 1950, sections 23 (1) and 75—Failure to fence machinery—Alternative charges.

A charge of causing injury contrary to section 75 of the Factories Ordinance, 1950, of Tanganyika need not be treated as alternative to one of failure to fence machinery contrary to section 23(1) of the same Ordinance, even if the injury is directly caused by the unlawful failure to fence. Section 75 creates an entirely separate offence and does not merely provide an enhanced punishment for an aggravated contravention of another provision of the Ordinance. The magistrate had convicted under section 75, but treated the charge under section 23 (1) as alternative and made no finding. The High Court set aside the conviction under section 75 and substituted one under section 23 (1).

Held (17-12-55).—The order of the High Court must be set aside

The appeal was dismissed and the cross-appeal by the Crown allowed. The conviction and sentence entered and imposed by the Resident Magistrate restored.

Cases referred to: R. v. Nassa Ginners Ltd., 22 E. A. C. A. 434; R. v. Fazleabbas Sulemanji and another, 22 E. A. C. A. 395; R. v. Taylor, (1908) 2 K. B. 237.

Dastur for appellant.

Dawson for respondent.

JUDGMENT.—The appellant was charged in the Resident Magistrates' Court at Kilosa with two offences against the Factories Ordinance, 1950, the first count being that he caused injury to a person in contravention of section 75 of that Ordinance, and the second count being that he failed to fence securely the dangerous parts of machinery other than prime movers and transmission machinery contrary to section 23 (1). The learned Resident Magistrate convicted the appellant on the first count and fined him Sh. 400, but, being of opinion that the counts were merely alternative, discharged himself from reaching a finding on the second count. He did, however, indicate his opinion that the offence alleged in the first count embraced proof of all the ingredients necessary to sustain a conviction on the second count. On appeal to the High Court the conviction on the first count was set aside, the learned Judge being of opinion that "the evidence falls short of that from which the inference drawn by the learned Magistrate should have been drawn". A conviction on the second count was substituted and the fine reduced to Sh. 200.

The first appellate Court was also of opinion that it was in this case unnecessary and undesirable that there should have been two counts. The appellant has appealed to this Court from the conviction and sentence substituted by the High Court and the Crown has cross-appealed against the order of the High Court quashing the conviction and sentence on the first count.

At the conclusion of the hearing we dismissed the appeal and allowed the cross-appeal, setting aside the order of the High Court and restoring the conviction and sentence entered and imposed by the Resident Magistrate. We now give our reasons for so doing.

The case arose in this way. The appellants operate a sugar factory in which they have three machines for crushing cane; the complainant was working at one of these machines which had three insecurely fenced gear-wheels; below these gear-wheels was a drum to collect the juice and affixed to the drum a sieve which had to be cleaned from time to time. In the course of his work the complainant was seen to go to the drum, apparently for the purpose of cleaning the sieve. He had to put his hand in the drum to do this. As he did so he slipped on some waste bagasse lying on the floor. The next certain fact is that the complainant's right hand had been cut off. Nobody appears to have been able to say what actually occurred, but it seems to us an inference, which is not only reasonable but irresistible, that the complainant in slipping must have put out his hand to save himself and that it was caught in the gear-wheels. There was no other exposed moving machinery within his reach, and there is no other possible explanation of the accident. On these facts in our view a conviction under section 23 (1) would be inevitable on the application of the criterion of foreseeability laid down by this Court in R. v. Nassa Ginners Ltd., 22 E. A. C. A. 434, and that clearly was also the opinion of the first appellate Court. The learned Judge, however, in considering the conviction under section 75 very properly pointed out that the Resident Magistrate had not stated the facts quite accurately in saying that the complainant testified that when he fell over his hand became engaged in the three gear-wheels and was cut off.

As we have already indicated, the complainant's evidence did not go so far as that, but with respect we think the learned Judge erred in forming the opinion that the evidence, by which we understood him to mean the whole of the evidence in the case, fell short of that from which the inference drawn by the Magistrate could have been drawn.

In Fazleabbas Sulemanji and another, 22 E. A. C. A. 395, this Court said that the onus upon the appellant on first appeal is to show that the findings of the Magistrate were unreasonable, or could not be supported having regard to the evidence. In that case this Court felt that the High Court had not appreciated and applied this principle. In the instant case we do not go so far as that. We think the learned Judge appreciated the principle but misapplied it. We do not think that on any fair appreciation of the evidence it can be maintained that the inference drawn by the Magistrate was unreasonable or could not be supported.

Lastly, we think with respect that both the learned Judge and the Resident Magistrate took an erroneous view of the two counts charged. In our view section 75 does not merely prescribe an increased penalty for an aggravated contravention of a provision of the Ordinance, as the High Court thought, but creates an entirely separate and independent offence, which is that some person is injured in consequence of a contravention. This view is supported by the comment in Redgrave's Factories Truck and Shop Acts, 18th ed., 342 and by the case of R. v. Taylor, (1908) 2 K. B. 237, the sections under consideration in those authorities being in substance the same as the two sections under which these two charges were brought.