Edwin Singho V. S. I. Police, Kadawatta

1956 Present : Sansoni, J.

EDWIN SINGHO, Appellant, and S. I. POLICE, KADAWATTA,
Respondent

S. C. 171-M. C. Gampaha, 24,378

Charge-Alternative charge-Duplicity-Particulars of offence-Motor Traffic Act No. 14 of 1951, ss. 153 (2), 153 (3), 219 (1), 219 (2)-Criminal Procedure Code s. 169.

The accused was charged and convicted on two counts, viz., (1) with having driven a motor car recklessly or in a dangerous manner or at a dangerous speed, in breach of section 153 (2) of the Motor Traffic Act, (2) with having driven the same bus negligently or without reasonable consideration for other persons using the highway, in breach of section 153 (3) of the Motor Traffic Act.

Held, that the charges framed in the alternative were bad for duplicity.

SANSONI. J.-" I think the matter goes beyond the question of the accused being prejudiced by having to face a count which involves many different offences framed in the alternative : the more important consideration is that it is not clear, upon a conviction or an acquittal, of what offence he has been found guilty or acquitted. "

Held further, that, under section 169 of the Criminal Procedure Code, particulars setting out the details of each offence should have been mentioned in the charge.

APPEAL from a judgment of the Magistrate's Court, Gampaha.

Frederick W. Obeyesekere, for the accused-appellant.

L. H. de Alwis, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

356

March 6, 1956. SANSONI, J.-

The accused-appellant was charged on two counts :

1. That he " did on 16th April, 1955, at Kadawatta, being the driver of bus Z 6730, on a highway, to wit, the Colombo-Kandy road drive the said motor bus recklessly or in a dangerous manner or at a dangerous speed in breach of S. 153 (2) of the Motor Traffic Act No. 14 of 1951, and thereby committed an offence punishable under S. 219 (1) of the said Act.

2. At the same time and place aforesaid . . . . drive the said bus . . . . negligently or without reasonable consideration for other persons using the highway in breach of S. 153 (3) of the said Act, and thereby committed an offence punishable under S. 219 (2) of the said Act."

After trial the learned Magistrate convicted the accused on both counts and fined him Rs. 100 on the first count and Rs. 50 on the second count.

The chief witness for the prosecution said that when he had halted his car near the 14th milepost on the Colombo-Kandy road behind another car, the accused's bus came from behind him, flashed past him, overtook both cars and proceeded : at that time a lorry came from the opposite direction and the lorry driver had to swerve to his left to avoid a collision with the accused's bus. The witness further said that he followed the bus, driving at about 40 to 45 m.p.h., and was just able to get close enough to note the number of the bus.

The next incident which the same witness spoke to seems to have happened about three miles from where the first incident took place. The accused's bus overtook another vehicle while a car was coming from the opposite direction. The driver of that car had to drive on to the grass verge in order to avoid a collision. The witness complained at the Kadawatta Police Station, which is between the 9th and 10th mileposts.

Another witness called for the prosecution spoke to a third incident. He said that when he was standing outside his house, which is about 1/4 mile on the Colombo side of the Kadawatta Police Station, he saw this bus being driven very fast round a bend.

The accused gave evidence on his own behalf. He said that the 14th milepost is at Imbulgoda while Kadawatta is at the 10th milepost. He also said that he had been driving buses for eighteen years and had never been convicted of any offence. He was definitely of the view that this particular bus was so old that it could not be driven at more than 20 to 25 m.p.h., and if it was driven faster

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