1946 Present: Howard C.J. and Canekeratne J.

THE KING v. LEIGHTON.

36-D. C. (Criminal) Kalutara, 6,325.

Criminal negligence-Charge of causing death by negligence--Nature of proof necessary to establish charge- -Penal Code, s. 298.

To establish a charge involving criminal negligence the facts prove by the prosecution must be such that, in the opinion of the Court, the accused?s negligence went beyond a mere matter of compensator between subjects and showed such disregard for the life arid safety o. others as to a-mount to a crime against the State and conduct deserving Punishment.
APPEAL against a conviction from the District Court, Kalutara.

R. L. Pereira, K. C. (with him H. W. Jayewardene), for the accused appellant.-The facts of this case disclose nothing more than civil negligence. Mere fast driving does not amount to criminal negligence Negligence, to be criminal, must go beyond a mere matter of compensation between subjects and show such disregard for the life and safety of other as to amount to a crime against the State and conduct deserving of punishment-Scharenguivel v. Charlie 1 . Simple lack of care such as will constitute civil liability is not enough-Andrews v. Director of Public Prosecutions 2. A very high degree of negligence is necessary and the onus of proving criminal negligence is upon the prosecution-Lourensz v. Vyramuttu 3. What amount of negligence is to be regarded as gross h a question of degree depending on the circumstances of each particular case. Where a- medical practitioner injected overdoses of a certain drug through carelessness, which resulted in the death of some of he patients, including the one in respect of which the charge was brought: and in the serious illnes of others, it was held that the facts when insufficient to prove criminal negligence. See Akerele v. R4.

T. K. Curtis, C. C., for the Crown, respondent, addressed on the fact of the case and submitted that there was sufficient evidence to prove criminal negligence.

Cur, adv. vult.

Foot notes

    1(1938) 10 C. L. W. 85.                                                                                     3 (1941) 42 N. L. R. 472.

    2 (1937) 2 .A. E  R. 552 at 556.                                                                            4 (19431 1 A. E. R. 367.

June 28, 1946. HOWARD C.J.-
   
The appellant appeals against his conviction by the District Judge, Kalutara, on an indictment containing two counts framed under section 298 of the Penal Code charging him with causing the death of one H. Udenis Fernando by (1) doing one or more rash acts not amounting to culpable homicide, or (2) in the alternative doing one or more negligent acts. The appellant was convicted on the alternative charge and sentenced to two years? rigorous imprisonment. The evidence established that the appellant was on the day in question about 8 or 8.30 p.m. driving a Naval truck on the Kalutara-Neboda road in the direction of Neboda. The deceased was walking along the edge of the road about a foot and a half on the turf, towards Kalutara. He was on his right side of the road. According to the evidence of a witness called Sinneris who was walking towards Neboda on the same side as the deceased the truck passed him traveling by the edge of the road. It had a faint light on its left side and a strong light on its right side. According to Sinneris the truck which was traveling very fast, when it reached the deceased, struck him down. He cannot say what part of the truck struck the deceased. This witness also states that there was no vehicular traffic on the road at the time, that the deceased was on the turf when he was struck and that there were wheel marks on the turf which he showed to the Police. In connection with this witness?s evidence the Examiner of Motor Cars was called as a witness and stated that the truck could not go faster than 35 miles per hour because of a regula