Jonklaas V. Silva Et Al.,

 

1940     Present: Moseley S.P.J.

 

JONKLAAS v. SILVA  et al.

424-425-M. C. Colombo, 908.

 

Causing grievous hurt by a rash or negligent act-Burden on prosecution- Proof of disregard for life or safety of others as to amount to crime. In a charge of causing grievous hurt by a rash or negligent act, the prosecution must prove that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State.

 

Rex v. Bateman (19 Cr. App. R. 13), followed.

 

APPEAL from a conviction by the Magistrate of Colombo.

 

R. L. Pereira, K.C. (with him C. de Jong), for first accused, appellant.

 

C. de Jong, for second, appellant.

 

S. H. T. Gunasekera, C.C., for complainant, respondent.

 

Cur. adv. vult

 

November 21, 1940. MOSELEY S.P.J.-

 

These two appeals arise out of proceedings against the first appellant in connection with an incident which occurred at Slave Island level crossing. The first appellant was convicted of causing grievous hurt by a rash act. The second appellant, a police constable on point duty at the scene at the time of the incident, was called upon, at the close of the proceedings to show cause why he should not be punished for contempt of Court under section 440 (1) of the Criminal Procedure Code in that he gave false evidence. He was found by the learned Magistrate to have given false evidence, he showed no cause why he should not be punished, and was fined Rs. 25. in default one month rigorous imprisonment.

 

It is no doubt proper and convenient that, at the hearing of the first appeal, it should be made clear to this Court, that, in the opinion of the learned Magistrate, the second appellant had given evidence which in certain respects was false, and it may also be convenient that the two appeals should be heard together. On the whole, it would seem more appropriate that in such cases the appeals should be heard independently of each other. That, however, is only my individual opinion.

 

The charge against the first appellant alleged three rash, or, in the alternative, negligent acts, to wit, (1) driving a motor bus at a dangerous speed, (2) driving against the signal of the gateman on duty, and, (3) driving when the railway gates were closing in for traffic, whereby grievous hurt was caused to Miss C. M. Ludekens. The description of the second of these alleged rash acts is clear enough. The first and third allegations are somewhat vague, but the appellant has not complained, nor would it seem, that he was prejudiced thereby.

 

In regard to the first allegation, it was positively established that from the halting place from wh

Click Here to Read the rest of this document