IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Traffic Case No. 201/2017

BETWEEN:	STATE

PROSECUTION

AND:		JAGDISHWAR PRASAD

ACCUSED

Counsel:		Sergeant 4971 Veni Vunaki for the State
			Mr. S.K. Ram with Mr. D. Patel & Ms. Y. Sagar for the Accused.

Date of Trial:		26-27 September 2023, 5 February 2024 and 9 May 2024
Date of Judgment: 	23 May 2025

JUDGMENT
Introduction

1.	Mr. Jagdishwar Prasad (“the Accused”) was charged and produced in Court on 12 April 2017 for 1 count of Dangerous Driving Occasioning Death, 2 counts of Occasioning Grievous Bodily Harm by Dangerous Driving, 1 count of Failure to Comply with Requirements Following an Accident, 1 count of Driving Motor Vehicle without being the Holder of a Valid Driving Licence and 1 count of Driving Motor Vehicle in Contravention of Third Party Policy. The particulars of the offences are:

Count 1
Statement of Offence

Dangerous Driving Occasioning Death: Contrary to section 97(2)(c), (5)(a), (8) and 114 of the Land Transport Act 1998.

Particulars of Offence

Jagdishwar Prasad on the 1st day of February 2017 at Ba in the Western Division drove a motor vehicle registration number HG 129 on Kings Road, Nailaga in a manner which was dangerous to the passenger involved in an impact leaving the public road while the person is being conveyed occasioning the death of Ashneel Kumar. 

Count 2
Statement of Offence

Occasioning Grievous Bodily Harm by Dangerous Driving: Contrary to section 97(4)(c), (5)(a), (8) and 114 of the Land Transport Act 1998.

Particulars of Offence

Jagdishwar Prasad on the 1st day of February 2017 at Ba in the Western Division drove a motor vehicle registration number HG 129 on Kings Road, Nailaga in a manner which was dangerous to the passenger involved in an impact leaving the public road while the person is being conveyed occasioning grievous bodily harm of Lusia Nanoko. 

Count 3
Statement of Offence

Occasioning Grievous Bodily Harm by Dangerous Driving: Contrary to section 97(4)(c), (5)(a), (8) and 114 of the Land Transport Act 1998.

Particulars of Offence

Jagdishwar Prasad on the 1st day of February 2017 at Ba in the Western Division drove a motor vehicle registration number HG 129 on Kings Road, Nailaga in a manner which was dangerous to the passenger involved in an impact leaving the public road while the person is being conveyed occasioning grievous bodily harm of Torika Namoi. 

Count 4
Statement of Offence

Failure to Comply with Requirements Following an Accident: Contrary to Regulation 63(1) and 87 of the Land Transport (Traffic) Regulation 2000.

Particulars of Offence

Jagdishwar Prasad on the 1st day of February 2017 at Ba in the Western Division drove a motor vehicle registration number HG 129 involved in an accident on Kings Road, Nailaga resulting in death, injuries to a person, damages to a house, the driver of the said vehicle failed to give necessary assistance and his name and address and address of the owner and all other information as required. 

Count 5
Statement of Offence

Driving Motor Vehicle without being the Holder of a Valid Driving Licence: Contrary to section 56(3)(a)(6) and 114 of the Land Transport Act 1998.

Particulars of Offence

Jagdishwar Prasad on the 1st day of February 2017 at Ba in the Western Division drove a motor vehicle registration number HG 129 on Kings Road, Nailaga without being the holder of a valid driving licence in respect of the said motor vehicle with the driving licence expired on 26/11/16. 

Count 6
Statement of Offence

Driving Motor Vehicle in Contravention of Third Part Policy: Contrary to Section 4 of the Motor Vehicle Third Party Policy Insurance Act.

Particulars of Offence

Jagdishwar Prasad on the 1st day of February 2017 at Ba in the Western Division drove a motor vehicle registration number HG 129 on Kings Road, Nailaga when not covered under the insurance of third party policy as required by the provision of motor vehicle third party policy. 

2.	On 3 November 2017, the Accused in the presence of his counsel pleaded Guilty to Count 5 but Not Guilty to the remaining counts.

3.	On 25 September 2023, Prosecution informed this Court’s predecessor that they would withdraw Counts 3 and 6 pursuant to section 169(2)(b)(ii) of the Criminal Procedure Act 2009. However, the counsel for the Accused sought that the Accused be acquitted from the above Counts pursuant to section 169(2)(b)(i) of the Criminal Procedure Act. Prosecution raised no objections with respect to counsel’s submissions as such this Court’s predecessor acquitted the Accused from Counts 3 and 6 pursuant to section 169(2)(b)(i) of the Criminal Procedure Act.

4.	On 26 and 27 September 2023, the date of Trial, Prosecution called 10 witnesses. During the evidence of the 10th witness for the State, namely Dr. Emali Bobodruma, the counsel for the Accused objected to the Medical Report as the same had not been signed by the Complainant. As such, this Court’s predecessor adjourned the Trial to deliver his Ruling on the objection. 

5.	On 4 December 2023, this Court’s predecessor ruled that the Medical Report was not unlawfully obtained and could be referred to by Dr. Emali during her evidence. After delivering his Ruling, this Court’s predecessor then fixed a date for continuation of Trial. On 5 February 2024, Dr. Emali continued her evidence. The matter was then adjourned for continuation of Trial on 12 March 2024.

6.	It is imperative to highlight that the recording of Prosecution evidence on 26 -27 September 2023 and 5 February 2024 was conducted by this Court’s predecessor. Upon commencing these proceedings on 8 April 2024, this Court informed the Accused of his right under section 139(2) of the Criminal Procedure Act 2009, which allowed the Accused to demand that the witnesses or any of them in this matter be re-summoned and re-heard. After informing the Accused of this right, the Accused informed that he did not wish to exercise the said right and that the Court could rely on the evidence already recorded by its predecessor and to hear the remaining witness for Prosecution. In turn, considering section 139(1) of the Criminal Procedure Act, the Court has decided to act on the evidence recorded by its predecessor.

7.	On 9 May 2024, this Court heard the evidence of Prosecution’s final witness. Thereafter, the counsel for the Accused informed that the Accused would not give evidence and/or call any witnesses. 

8.	Both Prosecution and Defence then filed closing submissions. 

9.	Having considered the submissions filed and evidence by Prosecution, I now pronounce my Judgment.

Burden of Proof

10.	It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.

11.	It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.

Summary of Evidence

12.	It is expected that to arrive at a proper conclusion, the matter ought to be considered in its logical progression with formulated reasons for the ultimate conclusion with the general rule being that a judgment should set out the relevant events and the material evidence in the correct sequence in narrative form with the identifying number of each pertinent witness being incorporated at the appropriate places – vide Pal v R [1974] 20 FLR 1 (17 January 1974) as referred to in Wang v State Criminal Petition No. CAV 0013 of 2021 (26 October 2023) and State v Wang Criminal Appeal No. HAA 30 of 2019 (19 February 2021).

13.	Ms. Luisa who was Prosecution’s first witness and Ms. Torika who was Prosecution’s second witness both testified that they had boarded the Accused’s vehicle at the Nailaga shop and had gone to Vesaru Cemetery where they had started drinking. This was also confirmed by Ms. Elenoa who had further stated that the Accused had been driving motor vehicle with registration number HG129. 

14.	Ms. Luisa and Ms. Torika both testified that they went with the Accused and the person who had died in the accident to get more drinks. Ms. Luisa testified that after buying drinks and upon their return to the Cemetery, they were involved in an accident near the Dominion bend. Ms. Torika stated that near Four R they nearly had an accident and that she had told the Accused to slow down and then they had an accident at the front of Dominion.

15.	The evidence of Munesh Kumar (‘PC Kumar’) and Josefa Nainima (‘PC Nainima’) pertained to drawing the Rough Sketch Plan with the Fair Sketch Plan and the Key to the Fair Sketch Plan and taking photographs of the accident scene which were then tendered as ‘PEX2A, 2B and 2C’ and ‘PEX5’ respectively.

16.	Dr. Emali Bobodruma (‘Dr. Emali’) testified that in 2017 she had filled in the Medical Report of Luisa Nanoko. She explained that her findings was that there was a laceration which was deep and showing the skull with small lacerations which were superficial as well as tenderness on the upper chest and shoulder. Dr. Emali further testified that Luisa had been bleeding from the head. The Medical Report of Luisa Nanoko was then tendered as ‘PEX9’.

17.	Dr. Praneel Kumar (‘Dr. Kumar’) testified that he had conducted the post-mortem of Ashneel Kumar with the deceased being a rear seat passenger in a Toyota Succeed with the driver being unable to negotiate a bend which led to the vehicle going off the road and tumbling. Dr. Kumar stated that upon conducting an external examination, he found that there was a collection of brush abrasions which are scrapings, grazes or scratches. He explained that these were found on the left temporal region which is the left part of the head/temple above the ear. Dr. Kumar further testified that there was also a laceration/cut within that area with smaller lacerations on the head. 

18.	Dr. Kumar then went onto testify that the cause of death was a sub-arachnoid haemorrhage. He then explained that a sub-arachnoid haemorrhage was below the arachnoid membrane and that there was a presence of blood below the arachnoid membrane which under normal circumstances should not be there. Dr. Kumar went on to further testify that the most common cause of this was trauma or natural causes. Dr. Kumar testified that in this case, there were also skull fractures and that for the skull to be fractured there needed to be significant trauma to the head with there being obvious trauma to the head of the deceased herein. The Post-Mortem Report was then tendered as ‘PEX9’.

Preliminary Point

19.	From my reading of my predecessor’s note, I have observed that Prosecution had tendered the statements of witnesses who were present and gave evidence in Court. It would seem that the basis of Prosecution tendering these statements was pursuant to section 134 of the Criminal Procedure Act (‘the Act’). For ease of reference, I will reproduce this section herein:

“134. — (1) In any criminal proceedings, a written statement by any person shall, if such of the conditions mentioned in sub-section (2) as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) The conditions referred to in sub-section (1) shall be that —

(a)	the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his or her knowledge and belief and that he or she made the statement knowing that, if it were tendered in evidence, he or she would be liable to prosecution for any statement in it which he or she knew to be false or did not believe to be true;

(c) at least 28 clear days before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings;

(d) none of the other parties or their lawyers within 14 days from the service of the copy of the statement serves a notice on the party so proposing, objecting to the statement being tendered in evidence under this section.

(3) The conditions stated in sub-section (2) (c) and (d) shall not apply if the parties agree before or during the hearing that the statement shall be tendered.

(4) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section—

(a) if the statement is made by a person under the age of 21 years, it shall state the age of the person;

(b) if it is made by a person who cannot read it, it shall be read to the person before signature in a language he or she understands and shall be accompanied by a declaration by the person who read the statement to the effect that it was so read; and

(c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under sub-section (2)(c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy of it.

(5) Notwithstanding that a written statement made by any person may be admissible as evidence under this section —

(a) the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence; and

(b) the court may of its own motion, and shall on the application of any party to the proceedings, require that person to attend before the court and give evidence or to submit to cross-examination.

(6) So much of any statement as is admitted in evidence under this section shall, unless the court otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.

(7) Any document or object referred to as an exhibit and identified in a written statement rendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement.

(8) A document required by this section to be served on any person may be served—

(a) by delivering it to the person or to his or her lawyer; or

(b) by addressing it to the person and leaving it at his or her usual or last known place of abode or place of business or by addressing it to his or her lawyer and leaving it at his or her office; or

(c) by sending it by registered post to the person at his or her last known place of residence or place of business, or addressed to the person’s lawyer at his or her office; or

(d) in the case of a body corporate, by delivering it to the secretary or clerk of the body at its registered or principal office or sending it by registered post addressed to the secretary or clerk of that body at that office.

(9) The provisions of this section are subject to any provisions of any law dealing with the giving and admissibility of evidence in criminal cases, and shall be read and applied subject to the provisions of such a law.”

20.	In State v Navunivesi Criminal Case No. HAC 318 of 2015 (12 September 2018) when dealing with an application pursuant to section 134, His Lordship Justice Hamza opined:

[12] However, in terms of Section 134 (2) (c) of the Criminal Procedure Act, at least 28 clear days before the hearing at which the statement is to be tendered in evidence, a copy of the statement must be served on the defence by the prosecution (the party proposing to tender the said statement in evidence). The prosecution submits that the statement of the complainant has already been provided to the Accused at the time the disclosures in this case were served on him.

[13] However, it is my opinion, that the notice envisaged in terms of Section 134 (2) (c) of the Criminal Procedure Act, is a notice that must be given by the prosecution indicating its intention to use such a statement as evidence. This notification would be in addition to serving the relevant statement on the defence, along with the disclosures. This notice indicating the intention of the prosecution to use such a statement as evidence, must be given at least 28 clear days prior to the hearing at which the statement is to be tendered as evidence.

[14] Where notice is given in terms of Section 134 (2) (c) of the Criminal Procedure Act, it would enable the other party or their lawyers (in this case the Accused), to object to the statement being so tendered in evidence, if they wish to do so, in terms of Section 134 (2) (d) of the Criminal Procedure Act. Any such objection should be made within 14 days from the date notice was served on the defence.

[15] I find that in this case, no such notice has been given by the prosecution to the defence in terms of Section 134 (2) (c) of the Criminal Procedure Act. In my view, this is a mandatory requirement.

21.	Thus, it is mandatory for the party wanting to rely on the statement to give notice indicating its intention to use such statements as evidence and that this notification would be in addition to serving the relevant statement on the defence along with the disclosures. Merely serving the disclosures on an accused is not sufficient to say that notice has been given as stipulated under section 134(2)(c) of the Act.

22.	Moreover, the Fiji Court of Appeal in the case of Tawananumi v State Criminal Appeal No. AAU 131 of 2018 (27 July 2023) when dealing with previous consistent statements as a ground of appeal, stated: 

[14] The basis underlying the general rule of evidence on prior or previous consistent statements being inadmissible, is that a party is not permitted to make evidence for himself: R v Roberts 28 Cr. App. R 102. The exceptions at common law apart from the statutory exception under section 134, are:

(i)	statement’s constituting recent complaints in sexual cases,
(ii)	statement’s forming part of res gestae and
(iii)	statement’s which tended to rebut an allegation of recent fabrication.

[15] Under both (i) and (iii) a statement is not admissible as evidence of the truth of its contents but may be admitted only to show consistency on the part of the complainant.

[16] In Conibeer v The State [2017] FJCA 135; AAU0074.2013 (30 November, 2017, the court stated (at paragraph 28) :

“As a general rule, a prior consistent statement of a witness is inadmissible evidence. However, there are many exceptions to this rule. One of the exceptions to the rule is in sexual cases. In sexual cases, the evidence, a recent complaint of the sexual assault made to another person by the complainant is allowed to show the consistency of the conduct of the complainant and to negative consent.”

23.	Therefore, a previous consistent statement can only be admissible in evidence in sexual cases, cases of res gestae – dying declaration and to rebut an allegation of recent fabrication. 

24.	Given that the tendering of the statements in this case for Ashneel Reddy, PC Kumar, PC Nainima, PC Ranjay, Lekima Tukairanadi and Hari Chand did not comply with section 134(2)(c) of the Criminal Procedure Act and does not fall within the exceptions of previous consistent statement being held admissible, I am inclined not to rely on the same when evaluating the evidence in the matter and I will only consider the sworn evidence of these witnesses in Court.

Evaluation of Evidence

25.	It is important to note that the Accused chose to remain silent and not call any witnesses, the Court is mindful that no adverse inference can be made against the Accused in this regard.

26.	The Court will now need to evaluate the evidence by Prosecution. The evidence presented will be evaluated to determine the testimonial trustworthiness of the evidence which will be done by evaluating the credibility – the correctness or veracity of the evidence and the reliability of evidence – the accuracy of the evidence - vide State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024). In doing this, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).

27.	Considering the evidence led by Prosecution, it is apparent that the learned counsel for the Accused was not disputing that the Accused had been driving a motor vehicle which was then involved in an impact. The dispute arises to whether the Accused drove the motor vehicle in a manner that was dangerous which led to the death of Ashneel Kumar and grievous bodily harm of Luisa Nanoko.Thus, for ease, the Court will undertake the analysis of the charge of Dangerous Driving Occasioning Death and Occasioning Grievous Bodily Harm by Dangerous Driving together.  

28.	The Court is mindful of the elements of Dangerous Driving Occasioning Death, it is imperative for the Court to turn its mind to the elements of the offending, which are:

i.	the accused
ii.	drove a motor vehicle which was involved in an impact 
iii.	occasioning the death of another person
iv.	and accused was at the time of the impact driving the vehicle in a manner dangerous to others.

29.	For the offence of Occasioning Grievous Bodily Harm by Dangerous Driving, the elements of the offending, are:

i.	the accused
ii.	drove a motor vehicle which was involved in an impact 
iii.	occasioning grievous bodily harm of another person
iv.	and accused was at the time of the impact driving the vehicle in a manner dangerous to others.

30.	In Kumar v State; Criminal Appeal No. HAA 014 of 2001S (12 April 2002) Her Ladyship Justice Shameem discussed the test for dangerous driving wherein she stated:
“In R -v- Gosney (1974) 3 ALL ER 220, it was held that a charge of dangerous driving is proved when the driver drives in a way which falls below the standard of a competent and prudent driver, and thereby causes a situation, which viewed objectively, is dangerous.

The test for a charge of Dangerous Driving is an objective one, as is the test for Careless Driving. The difference between the Careless Driving and Dangerous Driving is not the manner of driving, (which has the same test) but the situation that has been caused thereby. In other words, a person who drives carelessly, also drives dangerously, if viewed objectively, his/her manner of driving creates a dangerous situation. Thus a person who drives carelessly, drives dangerously if he/she thereby causes a death. 

There are many authorities which say that the test for both Dangerous Driving and Careless Driving, is whether the accused has departed from the standard of a reasonable, prudent, competent and experienced driver in all the circumstances of the case. The accused is guilty of either offence even if he committed an error of judgment (Simpson -v- Peat (1952) 1 ALL ER 441) or was an inexperienced driver (McCrone -v- Riding (1938) 1 ALL ER 157.) The difference between Careless Driving and Dangerous Driving in Fiji, is whether the manner of driving (which fell below the requisite standard expected) created a dangerous situation. Thus a careless driver is also a dangerous driver, if his careless driving caused a pile-up of vehicles on a busy motorway resulting in death and injuries. The question of what is careless as opposed to dangerous is one of fact, usually best left to the trial court to decide, on the evidence. However, on a charge of Causing Death by Dangerous Driving, it is no defence that the driver was driving carelessly and not dangerously. The only question is whether the driver’s manner of driving fell below the standard expected of a reasonable and prudent driver, and thereby caused a dangerous situation as a result of which, a person died.

31.	The Court is mindful of section 97(5) and (6) of the Land Transport Act which states:

(5) For the purpose of this section, the circumstances in which a vehicle is involved in an impact occasioning the death or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following – 

(a)	the vehicle overturning or leaving a public street while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);
(b)	an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);
(c)	an impact between the person and the vehicle;
(d)	the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact;
(e)	an impact with anything on, or attached to, the vehicle;
(f)	an impact with anything that is in motion through falling from the vehicle.

(6) For the purpose of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if – 

(a)	the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave public street; and
(b)	the prosecution proves that the first mentioned vehicle caused the impact.

32.	Considering Kumar [supra] in conjunction with section 97(5) and (6) of the Land Transport Act, the Court will need to first determine whether there was a dangerous situation and then consider whether there had been some fault by the driver causing this dangerous situation. If the conduct of the driver contributed to cause the dangerous situation then it has fallen below the care or skill of a competent and experienced driver and it could constitute the element of fault.

33.	From the evidence adduced by Prosecution, Ms Elenoa testified that the Accused had picked her and the others from the Nailaga store. At the time, the Accused was driving a white pro-box with registration number HG129. Ms. Luisa and Ms. Torika also confirmed that they had been picked by the Accused in a white pro-box and then they had all gone to the Cemetery to drink. Thereafter, Ms. Luisa and Ms Torika testified that they had gone with the Accused and the person who had died, to buy drinks.

34.	Ms. Luisa testified that she had been sitting at the back behind the driver while the person who died had been sitting next to her whilst Torika was sitting in front. Ms. Luisa testified that before reaching the Cemetery they were involved in an accident near Dominion near the bend. She further testified that they had told the Accused to go slow.

35.	Ms. Torika testified that near Four R they nearly had an accident and that she had told the driver to slow down. She went on to state that they had the accident at the front of Dominion. During cross-examination, Ms. Torika maintained that the Accused had been driving fast after the village.

36.	In his evidence, PC Kumar merely testified that the car had gone over the drain to the other side. PC Nainima in his evidence explained the photographs he had taken of the accident. The photographs taken showed where the motor vehicle had landed which was on the porch of the house. PC Nainima also explained that the photographs showed how the motor vehicle came down the slope and went to the house as well as tyre marks which showed where the car landed and skid.

37.	The evidence of Ms. Luisa and Ms. Torika is with respect to speed which is not within the parameters of the charges preferred by Prosecution. Rather, Prosecution has preferred a charge where they are alleging that the manner in which the Accused was driving amounted to dangerous driving. 

38.	Looking at the evidence adduced by Prosecution, the Court finds that Prosecution failed to adduce any such evidence from Ms. Luisa and Ms. Torika, the two most important witnesses in the matter as they were present in the motor vehicle at the time of the accident. Prosecution failed to elicit from Ms. Luisa and Ms. Torika evidence pertaining to how the Accused had been driving right up to the time of the accident, how the accident had occurred or what may have caused the accident to occur.  

39.	Further, with respect to the evidence of PC Kumar, Prosecution failed to have him explain the contents of the Rough and Fair Sketch Plans to explain how the accident had taken place, in what manner the Accused had been driving the motor vehicle to have caused the accident or how and why the Accused’s driving was considered dangerous. Moreover, Prosecution failed to have PC Nainima, the Investigating Officer in the matter properly explain from the photographs how the accident had taken place especially in correlation with the Rough and Fair Sketch Plans.

40.	Given the above, the Court is unable to ascertain whether there was a dangerous situation and whether the conduct of the Accused contributed to causing the dangerous situation which fell below the care or skill of a competent and experienced driver.

41.	As Prosecution has adduced insufficient evidence regarding the element of “whether the Accused had driven the motor vehicle in a manner that was dangerous to others”, the undertaking of discussions pertaining to the elements of whether the impact led to the death of Ashneel Kumar and grievous bodily harm to Luisa Nanoko would be redundant as Prosecution has failed to prove the most important element beyond a reasonable doubt.

42.	Thus, considering the evidence in totality, I find that Prosecution has failed to prove beyond a reasonable doubt the charge of Dangerous Driving Occasioning Death and Occasioning Grievous Bodily Harm by Dangerous Driving against the Accused.

43.	Now turning to the offence of Failure to Comply with Requirements Following an Accident. For a proper analysis of evidence of this offence, it is imperative for the Court to turn its mind to the elements of the offending, which are:

i.	the accused
ii.	drove a motor vehicle
iii.	involved in an accident 
iv.	which resulted in the death and injuries of a person and damage to property
v.	failed to give necessary assistance and his name and address and address of the owner of the vehicle and all other information as required and be present at the time of the accident or immediately after the accident.

44.	The evidence of Ms. Luisa and Ms. Torika had been that the Accused had been driving a motor vehicle which had been involved in an accident. The evidence of Ms. Elenoa confirmed that the vehicle that the Accused had been driving and which had been in an accident had been a motor vehicle with registration number HG129.

45.	The evidence of Mr. Lekima was that he had seen the Accused, the driver of the motor vehicle run away despite Mr. Lekima trying to stop him.

46.	PC Kumar’s evidence was that when he had got to the accident scene on 1 February 2017, there had been no-one at the scene. PC Ranjay testified that on 2 February 2017, he had arrested the Accused from his home as he had received information that the Accused had been the driver of the motor vehicle HG129 that had been involved in the accident.

47.	Dr. Emali’s evidence highlighted that Ms. Luisa had suffered injuries from the accident whilst Dr. Kumar’s evidence highlighted that a death had occurred due to the accident. 

48.	Whilst the Court notes the evidence of Ms. Luisa, Ms. Torika and Ms. Elenoa that the Accused had been driving a motor vehicle being HG129 which had been involved in an accident with Dr. Emali and Dr. Kumar’s evidence that there had been injuries sustained and an occurrence of death, no evidence had been led by Prosecution that there had been damage to property.

49.	More importantly, whilst Mr. Lekima in his evidence stated that the Accused had run away and the evidence of PC Ranjay that he had arrested the Accused on 2 February 2017 at his home, Prosecution failed to provide evidence highlighting what the necessary assistance the Accused was required to give. Prosecution also failed to elicit evidence that the Accused was required to give his name, address and the address of the owner of the vehicle and all other information that is required when involved in an accident or even be present at the time of the accident or immediately after the accident.

50.	Prosecution can not expect the Court to infer the missing information from the evidence that it had presented as discussed in paragraphs 44-47 herein. Rather, Prosecution ought to have led this missing evidence as outlined in paragraphs 48 and 49 through the Investigating Officer, PC Nainima or any or its other witnesses who gave evidence in Court.

51.	Thus, considering the evidence in totality, I find that Prosecution has failed to prove beyond a reasonable doubt that the Accused had failed to comply with requirements following an accident.

Determination

52.	I find that Prosecution has failed to discharge its burden in proving Dangerous Driving Occasioning Death, Occasioning Grievous Bodily Harm by Dangerous Driving and Failure to Comply with Requirement following an Accident against the Accused beyond a reasonable doubt

53.	I, therefore, find the Accused, Jagdishwar Prasad, not guilty as charged for Dangerous Driving Occasioning Death, Occasioning Grievous Bodily Harm by Dangerous Driving and Failure to Comply with Requirement following an Accident.

54.	Any party aggrieved with this decision has 28 days to appeal to the High Court.

N. Mishra
Resident Magistrate