047-NLR-NLR-V-36-KING-v.-SABAPATHY.pdf
DALTON J.—King v. Sabapathy.
1934Present: Dalton J.
KING v. SABAPATHY.
79—D. C. (Crim.) Jaffna, 3,699.
Cognate offence—Charge of attempting to cause grievous hurt—Conviction ofendangering life by rash and negligent act or criminal intimidation—Irregular—Crimi7ial Procedure Code, ss. 182 and 183.
Where an accused is charged with attempting to cause grievous hurtby driving a motor car at a person, he cannot be convicted under section327 of the Penal Code of doing an act so rashly or negligently as toendanger human life or under 486 of criminal intimidation.
PPEAL from a conviction by the District Judge of Jaffna. .
No appearance for accused, appellant.
M. F. S. Pulle, C.C., for Crown, respondent.
Cur. adv. vult.
September 3, 1934. Dalton J.—
The accused was charged with attempting to cause grievous hurt to -one Vallipuram Kandiah by deliberately driving a motor car at HimThe District Judge states he accepts the evidence of the witnesses for theprosecution and finds the accused guilty of the offence, but then he goeson to find that it is possible that accused only intended to frighten thecomplainant by driving at him and then intending to swerve off. In thatevent the offence charged has not been proved, whatever other offenceaccused may have committed, for this possible explanation of accused’sconduct as found by the trial Judge is inconsistent with an attempt tocause grievous hurt, and the trial Judge has misdirected himself on the law.
Mr. Pulle, who appeared for the Crown, respondent, urged that, accept-ing the position that the offence charged had not been proved to thesatisfaction of the trial Judge, on the facts found to be true, accused couldbe convicted of committing an offence punishable by section 327 pr section486 of the Penal Code although not charged with any such offence.
» 31 N. L. R. 136.*20 N. L. R. 44.
*88 L. B. 118.* 16 N. L. R. 67.
DALTON J.—King v. Sab apathy.
Section 327 penalizes a person who does an act so rashly or negligentlyas to endanger human life of the personal safety of others. Section 486provides the punishment for criminal intimidation.
He accordingly asks me, in the event of my coming to the conclusionon the findings of the trial Judge that the offence charged in the indict-ment has not been proved to have been committed, to enter a convictionagainst the accused for one of the other offences, which he urges theevidence discloses he has committed. The evidence which has beenaccepted by the trial Judge certainly discloses most outrageous conducton his part and his unfitness to be in charge of a motor car on the publicroads. This conviction Counsel asks me to enter under the provisions ofeither section 182 or section 183 (1) of the Criminal Procedure Code.
In support of this request I was referred to the decision in King v.Ranhamy where it was held that, under the provisions of section 183,where an accused person is indicted for murder he may be convicted ofcausing death by a rash and negligent act. In the course of his decisionin that case Lyall Grant J. referred to English law as supporting his con-clusion. So far, however, as the offences of manslaughter and dangerousdriving are concerned, the matter has since been decided in England inthe case of Rex v. Stringer * referred by the Court of Criminal Appeal to aBench of five Judges. In that case a man was knocked down and killedby the accused’s motor lorry. The accused was charged on an indictmentcontaining two counts: (1) manslaughter and (2) dangerous driving of amotor vehicle. He was acquitted on the former charge and convicted onthe second count. Accused appealed, it being submitted on his behalf thatwhere there had been an acquittal of manslaughter, there could not be aconviction on the same facts for dangerous driving. In the course of theargument counsel for the Crown pointed out that manslaughter anddangerous driving are entirely distinct offences, and the Court agreed thaton the count in the indictment for manslaughter the accused could nothave been convicted of the second offence, i.e., dangerous driving. TheCourt went on to express the opinion that it is undesirable that a chargeof dangerous driving should be made a count in an indictment formanslaughter.
It is not necessary to consider if that latter opinion is applicable inCeylon, having regard to the provisions of the law here, but the finding ofthe Court in the case as to the distinction between the two offences namedis relevant to the case before me, for on the facts the offence under section327, of which Crown Counsel urges appellant may be convicted, is one ofendangering life by rash or negligent driving. Just as manslaughter anddriving a motor vehicle recklessly or in a manner dangerous to thepublic are. entirely distinct offences, so also, in my opinion, are the offencesof attempting voluntarily to cause grievous hurt and doing- an act sorashly or negligently as to endanger human life.
With respect to the provisions of sections 181 and 182, it has been held -that the operation of the latter section is limited to cognate offences..The subject is dealt with in Sohoni's Code of Criminal Procedure atpp. 586-595 on a consideration of the equivalent provisions of the IndianCriminal Procedure Code, sections of which are in practically the same
* 32 N. L. J?. 160.a (1933) J g. B. 704.
224
DAl/fON f J-—King v. Sabapathy. .
terms as sections 181, 182/ ard 183 of our Code. Cases 'are/cited, forexample, in which it has been held that sections 181 and $2 c^o not relate',to offences of so distinct a character as murder and theft, rape andkidnapping, dacoity and dishonestly receiving stolen property, abetmentof forgery and using a forged document.
The scope of the equivalent provision of section 183 is dealt with bySohoni at p. 593. It applies to cases in which the charge is of an offencewhich consists of several particulars, a combination of some only of whichconstitutes a complete minor offence. He. points out, however, that thesection does not apply to a collateral or concurrent offence. Cases arethen referred to, in which it has been held that section 183 does not applyamongst others to such offences as murder and kidnapping, criminaltrespass and riot, riot and assault, extortion and theft, the first namedoffence being the offence charged. Further, under this section the Courtcannot find a man guilty of the abetment of an offence on a charge of theoffence itself.
Local decisions on the points raised are few in number. Those cited to mewere the following: Canagasingham v. Meyadin Bawa,1 in which Akbar J.held that on a charge of theft or criminal breach of trust, an accusedperson can under section 182 be convicted of criminal misappropriation,on the ground that it was an offence of the same type as the offencescharged, and that being so, there may be a doubt as to whether the factsamounted to one or other of the offences named.
In The King v. Arnolis2 the accused was charged with dishonest retentionof stolen property, and under section 182 the Court convicted him of theft.
In Prematuardene v. Siriwardene * it was held that on charges of wrongfulrestraint, criminal force, criminal intimidation, and misconduct in publicunder sections 332, 343, 486, and 488 respectively of the Penal Code, theaccused could not be convicted under section 182 of insult under section484, the latter offence being something entirely different from wrongfulrestraint or the use of criminal force. Lyall Grant J. there points outthat the instances in the illustrations given in the section are instancesof offences of much the same character, offences which it is often difficultto distinguish.
Applying the law referred to above to the case before me, I am of opinionthat on a charge under section 317 of attempting to cause grievous hurt,the accused cannot be convicted under the provisions of section 182 of anoffence laid under section 327 of endangering life by a rash or negligentact. The two offences do not seem to me to be offences that are cognateor allied in any way. The accused further cannot be convicted undersection 183. The same reasoning applies to the request to record aconviction of criminal intimidation which is a separate and distinctoffence from the offence charged.
The request of Counsel for respondent", therefore, to enter a convictionagainst the accused for an offence with which he has not been chargedmust be refused. The conviction for the offence charged cannot forthe reasons given stand. The appeal must therefore be allowed, theconviction being quashed.
Appeal allowed.
30 N. L. R. 292.
1 33 N. R. 353.
3 23 N. L. R. 225.