Police Sergeant Lindula V. Stewart

1923. Present: Jayewardene A.J.

POLICE SERGEANT, LINDULA, v. STEWART.

461-P. C. Nuwara Eliya, 6,802.

Vehicles Ordinance, 1916, ss. 32 and 48-Section 48 deals with six separate offences-Separate charges for each offence-Conviction for one offence and charge for another-Criminal Procedure Code, ss. 17 8 and 425.

The charge against the accused was that he did " rashly and negligently drive his motor car-in a manner which was likely to endanger human life, and damaged the motor car belonging to S in breach of section 32 of Ordinance No 4 of 1916," and thereby committed an offence punishable under section 48 of Ordinance No. 4 of 1916. The Magistrate in his judgment did not convict the accused of the offence with which he was charged, but of having driven his car " unreasonably fast in view of the dangerous nature of the corner, the surface of the road, and the possibility of meeting motor traffic at the spot," and found him guilty under section 48.

Held, that the charge was bad: (a) The offence under the section is to drive " recklessly " and not " rashly " ; (6) driving negligently is an offence, and driving in a manner which is likely to endanger human life is a separate or distinct offence, and should not 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 mis joinder, and it may be cured under section 425 of the Criminal Procedure Code if the accused has not been prejudiced."

Held, further, that the conviction of the accused of an offence with which he was never charged is fatal to the conviction. The accused was charged or intended to be charged with the first, second, and fourth offences under section 48, but he has been convicted of the sixth offence created by section 48.

THE facts are set out in the judgment.

Keuneman, for the appellant.

August 21, 1923. JAYEWARDENE A.J.-

This is an appeal against a conviction under the Vehicles Ordinance, No. 4 of 1916, section 48, which deals with offences relating to the driving of motor cars. The accused was driving his car from Nuwara Eliya to Colombo, and one Mr. Smethurst was driving up from Lindula to Nuwara Eliya, when the two cars met at a corner of the road about, three-quarter of a mile from the Lindula police station. Mr. Smethurst got on to a side of the road, seeing the accused's car coming along, and the accused pulled up his car, when

the back wheel skidded and the right hand mudguard struck the front portion of Mr. Smethurst's car, which was damaged. Mr. Smethurst estimates that the accused was travelling at the rate of thirty miles an 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 twelve miles an hour.

The police prosecuted the accused, and he was summoned to answer the following charge : That he did " rashly and negligently drive his motor car No. 3,515 on a public road in a manner which was likely to endanger human life and damaged the motor car, No. F 299, belonging to Mr. Smethurst, in breach of section 32 of the Ordinance No. 4 of 1916, and thereby committed an offence punishable under section 48 of Ordinance No. 4 of 1916." When the accused appeared in Court and the charge was read out to him from the summons, he stated the circumstances under which the " accident " happened, and added : " I deny that I was driving my car rashly and negligently." The Magistrate in his judgment does not convict the accused of the offence with which he was charged, but of having driven his car " unreasonably fast, in view of the dangerous nature of the corner, the surface of the road, and the possibility of meeting motor traffic at the spot," and finds him guilty under section 48 of the Ordinance.
Now section 48 consists of six different offences :-

1. Driving recklessly ;
2. Driving negligently;

3. Driving at

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