Mohamed Ramadhani v. R., Crim. App. 96-A-72, 3/6/72, Patel, Ag. J.

 

Mohamed Ramadhani v. R., Crim. App. 96-A-72, 3/6/72, Patel, Ag. J.

Appellant was convicted of causing death by dangerous driving c/s 44(A), Traffic Ordinance and was sentenced to eighteen months’ imprisonment. The appellant was driving Peugot saloon car along the Arusha/Dodoma road. The deceased – a school girl – was walking along the road towards Arusha. It was alleged by the prosecution before the lower court that the appellant drive at an excessive speed and on his extreme left and knocked the deceased who died later as a result of injuries received. Two eye witnesses to the incident as prosecution witnesses said hey saw the deceased walking on the edge of the road coming towards Arusha when the appellant came from Dodoma side at high speed from behind the deceased. The vehicle knocked down the deceased who was thrown off the road. Both said the vehicle did not stop after the accident. The appellant in his sworn statement said he was driving his vehicle along Arusha-Dodoma road

and while he was approaching a bridge he heard a knock on the left side. He stopped and saw a child had fallen. At that time there were two persons sitting in the said vehicle. Both were called as defense witness and they said the deceased came running and tried to cross the road from the left side and was hit b the vehicle in which they were sitting. The trial magistrate accepted the testimony of the prosecution witnesses and then proceeded to convict the appellant.

            Held: (1) “Mr. Behal for the appellant submitted that the trial magistrate made no finding of facts and gave no reasons for his conclusion. He further submitted that trial magistrate did not consider the defence and did not weigh the evidence at all. He submitted that this is incurable and the appeal should be allowed. He referred to the following authority in support of his Submission: Lockhart Smith vs. Republic, (1965) E.A. 211… The learned trial magistrate, after referring to what the appellant said in his sworn evidence, said as follows: - “The accused called the other two people with whom he was in the car at the time of accident. The two witnesses Husseing Salahe and Mohamed Masangi said that before the accident he saw the deceased suddenly cross the road from the left side of the road and accused’s vehicle knocked the child.” This is the only reference the trial magistrate made to the defence. Thereafter he dealt with the evidence of P.W. 5 and P.W. 7 and after giving reasons and arguments went on to accepts their testimony as truthful. Then straightaway and without considering the evidence they said, he concluded as following: - “As the evidence stands I am fully satisfied that the accused was driving in a very reckless and dangerous manner, otherwise this accident would not have occurred. On the evidence I am satisfied that the prosecutions have proved the case beyond all reasonable doubt. I find the accused guilty as charged.” (2) “Thus it can be seen that the trial magistrate dealt with the evidence of prosecution witnesses thoroughly and in detail before accepting their testimony as truthful. But he did not deal at all with the evidence of the appellant and his two defence witnesses. Nowhere in his Judgment does he say he rejects the evidence in defence, leave it aside, or give any reasons for doing so. In fact he had not considered it at all and …… he proceeded to make a finding to the effect that the appellant was driving in a very reckless and dangerous manner and convict him. He did not consider the explanation given by the appellant and his witnesses and made a finding of fact and in this he failed to evaluate the evidence correctly fact and in this he failed to evaluate the evidence correctly as he ought to have done and thus he misdirected himself seriously. (Citing: Lockhart Smith v. R., (1965) E.A. 211) … Thus the counsel’s main ground of appeal is valid. It is for the prosecution to rove the case beyond all reasonable doubts and the court cannot do so unless the evidence given by or on behalf of the accused is put into balance and weighed against that adduced by the prosecution. The question is whether anything the accused has said or which has been said on his behalf introduces that reasonable doubt which entitles him to his acquittal.” (3) Appeal allowed and conviction