014-NLR-NLR-V-77-K.-H.-SEDIRIS-Appellant-and-A.-KARUNARATNE-P.-S.-1802-Respondent.pdf
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WIJESUNDERA, J.—Sediris v. ICarunaratne
Present: Rajaratnam, J., and Wijesundera, J.
K.H. SEDIRIS, Appellant, and A. KARUNARATNE (P.S. 1802),
Respondent
S.S. 934/70—M. C. Gampaha, 40546
Motor Traffic Act (Cap. 203)—Section 151 (I)—Charge of driving “when
under the influence of alcohol”—Burden of proof.
The accused-appellant was convicted for driving a motor vehicle(a bus) when he was under the influence of liquor, in breach ofsection 151 (1) of the Motor Traffic Act. The main witness for theprosecution stated that the appellant appeared to have taken liquorand described in detail how the appellant drove the bus over adistance of nearly a mile in a dangerous manner.
Held, that the evidence of the main witness alone was sufficient toestablish that the appellant was under the influence of liquor at thetime he drove the bus. In such a case it is not invariably necessarythat there should be expert or medical evidence. The extent to whichthe accused person should be under the influence of liquor need notbe the same as would justify a conviction in England.
Carthelis v. Ibrahim (56 N. L. R. 561) considered.
A.PPEAL from a judgment of the Magistrate’s Court,Gampaha.
G. E. Chitty, with Mano Devasagayam and G. E. Chitty (jnr.),for the accused-appellant.
Palitha Wijetunga, State Attorney, for the Attorney-General.
Cur. adv. vult.
February 26, 1974. Wijesundera, J.—
The appellant appeals against the conviction and sentence fordriving a motor vehicle when he was under the influence ofliquor, in breach of Sec. 151 (1) an offence under Sec. 218 of theMotor Traffic Act.
WIJESUX]>E HA, J.—Sediris v. Karunaratne
109
As learned counsel who argued the appeal strenuouslymaintained that the charge has not been proved beyondreasonable doubt it is necessary to set out the evidence evenbriefly. The main witness for the prosecution was oneNissanka who was returning home from Gampaha in the busdriven by the accused-appellant. There were about 100 passengersand the bus left the Gampaha stand at about 6.30 p.m. He wasseated very close to the appellant. As the bus started it wasdriven very fast and the speed he gave was 30 m.p.h. When it wason the Yakkala road it began to swerve and waver and it wasabout to knock a way side ridge. He himself and the peoplebehind observed the condition of the appellant but at first did notinterfere. As it proceeded the bus was “ driven in a zig-zagmanner ” ; the people inside began to shout asking the appellantto stop the bus. The appellant slowed down and some people gotdown from the bus, ran in front and stopped the bus. He observedthat the appellant had taken liquor but could not say whetherhe was drunk. There was a drizzle at the time. Nissanka withsome others went to the police station close by and complained.He is certain there was at least one head lamp burning. Whenthe police came they found the appellant in a boutique close byand as he was smelling of liquor the police had him examined bya doctor at about 7.45 p.m.
The appellant gave evidence and stated that as he proceededthere was a drizzle which increased and it was raining heavily.While taking the bus down it began to skid. He tried to switch onthe lights, but found the lighting system not functioning. Thenhe stopped the bus, went to a boutique and had two drams ofarrack after which the police came. He also stated that he sentthe conductor to the Depot soon after he stopped the bus. Hefurther called one Odiris Singho who claimed to have been apassenger of the bus. Odiris Singho stated that the bus slippedand skidded near the hospital and ultimately it was stopped.When he questioned the appellant, the appellant told him that hecould not proceed as the lights had failed. A mechanic of theC.T.B. was also called to say that on instructions from hissuperior he came over to this bus at 10.00 p.m. and found thefuse had blown. Thereafter he took the bus to the Depot withthe help of a torch and the lights of another bus flashing behind.
Learned Magistrate rejected the evidence of the appellant andthis witness. Mr. Chitty submitted that the mechanic was notcross-examined by the prosecuting officer and therefore theevidence should not have been rejected. The fact that the witnesswas not cross-examined does not necessarily mean that thewitness’s evidence will be accepted. His evidence by itself orfor diverse reasons may appear to be so unworthy of credit that
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WIJESUNDERA, J.—Sediria v. Karunaratne
it is needless to cross-examine. In fact the story that he tookthe bus back with the help of a torch and the lights of anotherbus on a public road when the difficulty according to him wasonly a blown fuse which could have been repaired is to meunbelievable. Why did he turn up so late ? Besides, thelearned Magistrate had put to him a number of questions and theprosecution may have rightly thought that he had no morequestions to ask. This submission of Mr. Chitty therefore mustfail.
Mr. Chitty next submitted that there was no reason why theevidence of Nissanka should have been accepted in preferenceto that of Odiris Singho. This is entirely a question for theMagistrate. In the case of Nissanka he immediately went to thepolice and complained but in the case of Odiris Singho he hadto be fished out by the accused from Kirindiwela presumably on asubsequent occasion. Mr. Chitty also stated in this context thatthe version that the bus skidded and zig-zagged was due to thereason given by the defence may well be true. But whenthe distance over which the bus was driven in a “ zig zagmanner” is considered this version cannot be true.
The appellant’s evidence was that he had two drams of arrackat the boutique after the bus was halted. The lady doctor whoexamined the appellant detailed the test to which she subjectedthe appellant and concluded that he was under the influence ofliquor at 7.45 p.m., at the time of examination. This evidenceshows that he had taken an excessive quantity of liquor sometimebefore and could not have been the quantity he stated that hetook in the boutique and the Magistrate rejected his evidence.
The doctor added that she could not say what his condition wasat 6.30 p.m. Mr. Chitty in this context cited the case of Carthelisv. Ibrahim1—reported in 56 N.L.R. 561. Gratiaen J. stated thatthe extent to which an accused person should be under theinfluence of liquor should be the same as would justify aconviction in England, that is to say, the prosecution shouldprove that the accused was incapable of having a proper controlof the vehicle at that time. But the corresponding section inEnglish law cited at page 562 of that judgment is very differentto our Section which reads. “ No person shall drive a motorvehicle on a high way when he is under the influence of liquoror any drugs ”. To give the interpretation in the case referred toabove will be to read into our section the words of the EnglishSection. The question before me is a simple one—has theprosecution established that the appellant was under the influence
(1955) 56 N. L. R. 561.
Masaakorala v. Ptrera
111
of liquor ? To establish this it is not necessary that there shouldbe invariably expert or medical evidence. In this case althoughthe medical evidence is that the doctor cannot speak to hiscondition at 6.30 p.m. there is the evidence of Nissanka, a 66 yearold citizen, against whom nothing had been urged. He has statedthat the appellant appeared to have taken liquor and describedin detail how the appellant drove the bus over a distance ofnearly a mile. This evidence alone is sufficient to establish thatthe appellant was under the influence of liquor at the time hedrove the bus. Even if the rule laid down by Gratiaen J., is to beapplied, the appellant was still in breach of the provision of theMotor Traffic Act.
Accordingly, ;I dismiss the appeal and affirm the conviction.I see no reason to interfere with the sentence and I affirm thesentence.
Rajaratnam, J.—I agree.
Appeal dismissed.