Premasiri v. OfBcer-in-Charge, Police Station, Matara (Crero, J.)
OFFICER-IN-CHARGE, POLICE STATION, MATARA
COURT OF APPEALGRERO, J.
CA 112/85MC MATARA 46531OCTOBER 23. 1991.
Criminal Law – Negligence – Standard of proof – Does error of judgment amountto criminal negligence? – Penal Code, section 298.
To establish liability for negligence in a criminal case, a very high degree ofnegligence should be established. In other words, the accident should have beendue either to the recklessness of the accused or due to the reckless driving ofthe accused. Where the accident is attributable to an error of judgment, it isnot sufficient to establish criminal liability by negligence or by a rash act.
Cases referred to:
Rex v. Bateman 94 LJKB 791.
King v. Leighton 42 NLfl. 283.
Lourensez v. Vyramuttu 42 NLR 472.
Karunadasa v. O.I.C., Nittambuwa, (1987) 1 Sri LR 155.
APPEAL from judgment of the Magistrate Court of Matara.
R. K. W. Goonasekera for accused-appellant.
Jayamanne, SC for the Attorney-General.
Cur. adv. vult.
November 22, 1991.
The accused-appellant was charged before the Magistrate’s Court ofMatara, on two counts, both of which were under section 298 of thePenal Code. After trial, the learned Magistrate found him guilty onboth counts and imposed a fine of Rs.1,500 on each count, and atwo years' imprisonment for each count ; but such sentence wassuspended for a period of seven years. Against the said convictionand sentences, the accused-appellant appealed to this Court
Sri Lanka Law Reports
 2 Sri LR.
When this matter came up for hearing the main contentionadduced by the learned counsel for the appellant was that a veryhigh degree of negligence on the part of the accused-appellant mustbe proved by the prosecution in order to make him guilty to a chargepunishable under section 298 of the Penal Code. His contention wasthat in this case, such a high degree of negligence had not beenestablished and therefore the accused-appellant is entitled to anacquittal. The contention of the learned State Counsel was, thatthe charges were proved beyond reasonable doubt, and thereforethe learned Magistrate had quite correctly, convicted the accused-appellant.
The law pertaining to the causing of death by negligence, hasbeen the subject of judicial interpretation not only in this country, butin England not recently, but some long years ago.
In the case of Rex v. Bateman (1> Lord Atkin observed thus :" The principle to be observed is that cases of manslaughter in drivingmotor cars are but instances of a general rule applicable to allcharges of homicide by negligence. Simple lack of care such as willconstitute civil liability is not enough, for purposes of criminal law,there are degrees of negligence and a very high degree of negligenceis required to be proved before the felony is established."
In the said case Lord Hewart, L.C.J. held as follows : 11 In orderto establish criminal liability the facts must be such tliat in the opinionof the jury the negligence of the accused went beyond a mere matterof compensation between subjects and showed such disregard forthe life and safety of others, as to amount to a crime against thestate and conduct deserving punishment."
Our Courts have followed such decisions of the Court ofEngland from time to time in cases like the King v. Leighton (2),Lourensz v. Vyramuttu ®, Karunadasa v. O.I.C., Nittambuwa w.
The perusal of the decisions of the above stated cases show,that in order to establish criminal liability in a case of this nature,there should be a very high degree of negligence or in other wordsthe accident should have been due to either recklessness of theaccused or due to reckless driving of the accused concerned. Anaccident may occur due to an error of judgment on the part of an
Premasiri v. (Mcer-in-Charge, Police Station, Matara (Grero, J.)
accused : but that is not sufficient to establish criminal liability whenan accused is charged with an offence of causing death of a personor persons by negligence or any rash act.
A Judge hearing a case where an accused is charged undersection 298 of the penal code must always address his mind to thesaid salient principles of law, decided by the said cases, and thenapply such principles to the facts of the case and then decide whetherthe accused is guilty of criminal negligence in conformity with suchprinciples of law.
The virtual complainant in this case had given evidence beforethe learned Magistrate. In the examination-in-chief, he had stated thaton the day of the incident, he was coming along the road, on theleft-hand side of the road and he was pushing the bicycle keepinghis two children on the frame of the bicycle. Then a vehicle camebehind him and struck against his right shoulder and then he felldown and the two children also were thrown away and all of themgot injured. Under cross-examination, he admitted that he camepushing the bicycle on his right-hand side. According to him the lorrystruck against his right shoulder. The position of the complainant,Sirinayake, as to how he was pushing the bicycle before theaccident took place is very material to this case.
Under examination-in-chief, he had stated to Court that when heheard the coming'of a vehicle behind him, he had to go to the grassverge of the road which was on his left-hand side; but yet the vehiclehit against his back. If that is the position then the lorry inquestion should have gone beyond the edge of the road on to thegrass verge. But the evidence of the inquiring officer, I.P.Bakmeedeniya reveals that the place of impact had been 2 feetfrom the edge of the road towards the road. There is no evidenceto show that the lorry had gone beyond the edge of the road onto the grass verge.
A careful analysis of the evidence of Sirinayake does not showthe exact manner that this accident had taken place, on the day in.question. If his position that he pushed the bicycle, on his right-handside, was admitted to be true, then he was not going on the edgeof the road, but on the road which may give rise to an opportunityto meet with an accident. The fact that the lorry struck against his
Sri Lanka Law Reports
11993] 2 Sri LR.
right shoulder shows that it is very probable that he had been pushingthe bicycle, on this particular day on his right-hand side of the bicycle.Under such circumstances, his action become a contributory factorto-this unfortunate accident.
If the position that he was going pushing the bicycle on theleft-hand side and after hearing the sound of an on coming vehicle,he went towards the grass verge of the road was accepted to betrue, then there should be tyre marks of the lorry on the grass vergeto show that it had gone beyond the edge of the road and had goneto the grass verge of the road, then a Court can decide that therewas utter recklessness on the part of the accused-appellant. Butsuch evidence has not been placed before Court.
Even if the position that the accused-appellant had gone moretowards the left-han^ side of the road and as a result this accidenttook place is to be accepted, yet it is not possible to say that therewas a very high degree of negligence on his part to make himcriminally liable. Because as the learned Counsel for the appellantargued that due to an error of judgment, the accused-appellant mayhave thought that without causing any harm to the person going onthe left-hand side of the road pushing the bicycle he could overtakehim. There is no evidence in this case that he drove the lorry atan excessive speed. There had been no brake marks visible on theroad or on the grass verge of the road.
The only other eye witness to this incident was one Wimalasena,and according to his evidence the lorry struck against the bicycleand thereafter his father-in-law (Sirinayake, the virtual complainant)and the two children who were on the frame of the bicycle fellunderneath the lorry. It was the evidence of Sirinayake that the lorrydid not strike against his bicycle, and if the lorry struck against thebicycle as stated by Wimalasena then it would have some sort ofdamage. But I.P. Bakmeedeniya's evidence does not reveal that therehad been any damage to the bicycle.
Taking into consideration of the above stated facts, this Court isof the view that the prosecution has failed to prove the charge againstthe accused-appellant beyond reasonable doubt. In any event, theprosecution has failed to establish that there had been a very highdegree of negligence on the part of the accused-appellant as laiddown in the decided case mentioned in this judgment earlier.
Premasiri v. Officer-in-Charge, Police Station, Matara (Grero, J.)
If the learned Magistrate had viewed and assessed the evidencevery carefully as stated in this judgment, then he could not havecome to the conclusion that the charges were proved by theprosecution beyond reasonable doubt. If he had addressed his mindto the principles of law laid in the said cases adequately then hemay not have come to the conclusion that the prosecution in thiscase was able to establish such high degree of negligence sufficientenough to make the accused liable for criminal negligence ascontemplated in section 298 of the penal code.
For the above-stated reasons, the appeal of the accused-appellant is allowed and the conviction and sentences passed by thelearned Magistrate are set aside and he is hereby acquitted.
PRAMASIRI v. OFFICER-IN-CHARGE, POLICE STATION, MATARA