037-NLR-NLR-V-25-POLICE-SERGEANT,-LINDULA-v.-STEWART.pdf

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1923.Present: Jayewardene A. J.
POLICE SERGEANT, LINDULA, v. STEWART.
461—P. C. Nuwara Eliya, 6,802.
Vchicles Ordinance, 1916, ss. 32 and 48—Section 48 deals with six separate■ offences—Separate charges for each offence—Conviction for oneoffence and charge for another—Criminal Procedure Code, ss.17 8 and 425.
The charge against the accused was that he did “ rashly andnegligently drive his motor oar—in a manner which was likelyto endanger human life, and damaged the motor car belongingto S in breach of section 32 of Ordinance No 4 of 1916,” andthereby committed an offence punishable under section 48 ofOrdinance No. 4 of 1916. The Magistrate in his judgment didnot convict the accused of the offence with which he was charged,but of having driven his car “ unreasonably fast in view of thedangerous nature of the comer, the surface of the road, and thepossibility of meeting motor traffic at the spot,” and found himguilty.under section 48.
Held, that the charge was bad: (a) The offence under thesection is to drive “ recklessly ” and not “ rashly ” ; (6) drivingnegligently is an offence, and driving in a manner which is likely toendanger human life is a separate or distinct offence, and shouldnot have been combined in the way it was in the charge.
“ The defect is, however, not necessarily fatal to the conviction,as it is one of duplicity and not of misjoinder, and it may be curedunder section 425 of the Criminal Procedure Code, if the accusedhas not been prejudiced.”
Held, further, that the conviction of the accused of an offencewith which he was never charged is fatal to the conviction. Theaccused was charged or intended to be charged with the first,second, and fourth offences under section 48, but he has beenconvicted of the sixth offence created by section 48.
r j ^HE facts are set out in the judgment.
Keuneman, for the appellant.
August 21, 1923. Jayewabdene A.J.—
This is an appeal against a conviction under the Vehicles Ordi-nance, No. 4 of 1916, section 48, which deals with offences relatingto the driving of motor cars. The accused was driving his carfrom Nuwara Eliya to Colombo, and one Mr. Smethurst was drivingup from Lindula to Nuwara Eliya, when the two cars met at a comerof the road about, three-quarter of a mile from the Lindula policestation. Mr. Smethurst got on to a side of the road, seeing theaccused’s car coming along, and the accused pulled up his car, when
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the back wheel skidded and the right hand mudguard 6truck the frontportion of Mr. Smethurst’s car, which was damaged. Mr. Smethurstestimates that the accused was travelling at the rate of thirty milesan hour round the corner, and he at ten or twelve miles an hour.While the accused says he was not doing more than ten or twelvemiles an hour.
The police prosecuted the accused, and he was summoned toanswer the following oharge : That he did “ rashly and negligentlydrive his motor car No. 3,515 on a public road in a manner whichwas likely to endanger human life and damaged the motor car,No. F 299, belonging to Mr. Smethurst, in breach of section 32 ofthe Ordinance No. 4 of 1916, and thereby committed an offencepunishable under section 48 of Ordinance No. 4 of 1916.” Whenthe accused appeared in Court and the charge was read out to himfrom the summons, he stated the circumstances under which the“ accident ” happened, and added : “ I deny that I was driving mycar rashly and negligently.” The Magistrate in his judgment doesnot convict the accused of the offence with which he was charged,but of having driven his car “ unreasonably fast, in view of thedangerous nature of the comer, the surface of the road, and thepossibility of meeting motor traffic at the spot,” and finds himguilty voider section 48 of the Ordinance.
Now section 48 consists of six different offences :—
1928.
Jayewar-
DENE A.J.
PoliceSergeant,Lindula, v.Sleirart
Driving recklessly ;
Driving negligently;
Driving at a speed; or
Driving in a manner
fwhich is likely to endanger humanj life, or to cause hurt or injury to any^ person or animal or damage to anyj vehicle or to goods or persons carried^therein
Driving at a speed ; or
Driving in a maimer
“which would be otherwise than reason-able and proper having regard to all thecircumstances of the case, including thenature and use of the public thorough-| fare, street, or road, and to the amountof traffic which is actually on it at thetime, or which may be reasonably beexpected on it.
The charge attributes to the accused the commission of an offencenot known to the law “ of rashly and negligently driving his car in amanner which was likely to endanger human life and damaged themotor car No. F 299.” What the section declares-to be an offenceis to drive “ recklessly ” not “ rashly.” Again, the second and fourthoffences under the section have been combined in a curious way,and the accused is charged with driving “ negligently in a manner
1928.
Jayewajr-DENE A.J.
PoliceSergean*,Liniula, v.Stewa-t
C 168 )
which was likely to endanger human life, &c.” Driving “ negli-gently ” is one offence, and driving in a maimer which is likely toendangor human life is a separate or clistinot offence. The charge,therefore, offends against section 178 of the Criminal Procedure Code,whioh requires that for every distinct offence of which any person isaccused there shall be a separate charge. The defect is, however,not necessarily fatal to the conviction, as it is one of “ duplicity ”and not of misjoinder, and it may be cured under section 425 ofthe Criminal Procedure Code, if the accused has not been prejudiced(Musai Singh v. Emperor ‘).
The other objection, that the accusod has been convicted of anoffence with which he was never charged, is fatal to the conviction.As I have pointed out, the accused was charged or intended to becharged with the first, second, and fourth offences under section 48,but he has been convicted of the sixth offence created by the section.The evidence relating to this offence is contradictory and insufficient,and I do not think I would be justified in altering the charge andmaintaining the conviction. The learned Police Magistrate hastaken into account three things : The dangerous nature of the comer,the surface of the road, and the possibility of meeting other motortraffic at the spot. Mr. Smethurst says that the road was-in goodcondition, while the accused says the road surface was in bad con-dition—pebbly on top. . There is no evidence as to the traffic whichmay be reasonably expected on the road. Thus, there is only theevidence that the corner is a dangerous one. The accused shouldhave had an opportunity of meeting a properly framed chargesetting out the offence of which he has been convicted. Theconviction is set aside, but I leave it to the prosecution to take anyfurther steps, if it thinks it desirable to do so.
I may also mention that the police report and the summons statethat the accused acted in breach of section 32 of the Ordinance.This is one of a series of sections dealing with the civil liabilities ofowners of vehicles, and declares that the owner is only liable forsuch damages as are actually proved. I fail to understand how theaccused could have committed a breach of section 32, or its rele-vancy in a prosecution for an offence under section 48. Evidentlythe charge has been framed without reference to the Ordinance.
Set aside.
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> (iyi3) 41 Cal. 66.