[1951] EACA 248

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

MOHANLAL NATHOO BAKRANIA, Appellant (Original Accused)

REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 118 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya at Nairobi-Bourke, J.)

Criminal Law-Unlawfully causing grievous harm-Section 230 Penal Code intention—Criminally reckless or negligent conduct.

The appellant was convicted by the Supreme Court of Kenya of unlawfully causing grievous harm to one Samji Meghji by wounding him with two bullets fired from an automatic pistol. The learned trial judge accepted the opinion of the assessors that the appellant did not fire the weapon deliberately at Samji Meghij and therefore did not intend to cause grievous harm. He found the shots were fired unlawfully and that what he did was a reckless and dangerous thing to do.

It was contended for appellant that Part XXIII of the Code deals with offences arising out of criminally reckless or negligent conduct and that if harm is caused by such conduct (even though in fact amounting to grievous harm) it is only made punishable under section 239 the maximum penalty being imprisonment for six months. It was argued that section 230 both by its language and position in chapter XXII is limited to the offence of intentionally causing grievous harm.

*Held* (24-8-51).—(1) By section 227 (1) the intentional causing of grievous harm is punishable with imprisonment for life. Section 230 with its lesser maximum punishment of seven years is intended to be limited to cases w in circumstances contemplated by section 227. These cases would include the causing of grievous harm by criminally reckless or negligent conduct.

(2) The omission of the word "maliciously" from sections 277, 230 and 233 (1) does not affect the principle that in any criminal charge involving negligence the prosecution must prove something more than negligence of a character sufficient to establish civil negligence.

Appeal dismissed.

Cases referred to: Rex v. Bateman (1925) 19 Crim. A. R. 8; Rex v. Atia (E. A. C. A. Criminal Appeal 67/49).

S. R. Kapila for appellant.

Todd, Crown Counsel, Kenya, for Crown.

JUDGMENT.—The appellant was convicted by the Supreme Court of Kenya of unlawfully causing grievous harm to one Samji Meghji and sentenced to undergo three years' imprisonment with hard labour. He appeals against both conviction and sentence.

The principal grounds of appeal against conviction set out in the appellant's memorandum are that the trial judge erred in not acquitting the appellant after he had rejected the case for the prosecution that the appellant intended to cause grievous harm to Samji Meghji; and that the Judge erred in not accepting the appellant's explanation that he acted in self-defence.

It was not disputed that the appellant wounded Samij Meghij with two bullets fired from an automatic pistol and that the injuries inflicted amounted to grievous harm. The case for the prosecution was that the appellant fired these shots deliberately without lawful excuse of provocation and with intent to inflict grievous harm. The appellant's case was that earlier on the day in question he had been grievously insulted at his house by Samji Meghji and that when the latter returned later in the day in a motor-car, he (the appellant) went out to meet him armed with a loaded automatic pistol; that Meghji repeated his insulting remarks about the appellant's wife whereupon the appellant produced the pistol and ordered Meghji to go away. Thereupon, according to the appellant, Meghji attempted to get possession of the pistol and in the ensuing struggle the safety catch went off; the appellant then, thinking that if Meghji got possession of the pistol, it might be turned against him, deliberately decided to fire off all six rounds so as to render the pistol innocuous. He did in fact fire off two rounds and wounded Meghji in the legs, as he sat in the driving seat of the car. The learned Judge, in weighing the evidence, gave the appellant the benefit of the doubt and accepted the opinion of the assessors that the appellant did not fire the weapon deliberately at Samii Meghii and therefore did not intend to cause grievous harm. But, further, he rejected the appellant's story of the struggle for possession of the pistol and that the shots were fired in self-defence. Again accepting the assessor's opinions he found that the shots were fired unlawfully, believing, as he says, that the appellant decided to reinforce his visual and spoken threat by discharging the firearm downwards under the steering-wheel of the car where the legs of the injured man naturally were. This, as the learned Judge rightly remarks, was a reckless and dangerous thing to do.

We cannot agree with Mr. Kapila's submission that this finding was merely "speculation". It was in our opinion, a reasonable and indeed a lenient inference from the evidence.

Another point which was argued during the appeal and which calls for consideration is whether on this finding of fact the appellant was rightly convicted under section 230 of the Penal Code. Briefly Mr. Kapila's contention was that chapter XXIII of the Code deals with offences arising out of criminally reckless or negligent conduct and that if harm is caused by such conduct (even though in fact it amounts to grievous harm) it is only made punishable under section 239, the maximum penalty being imprisonment for six months. Section 230, he argued, both by its language and its position in chapter XXII is limited to the offence of intentionally causing grievous harm.

The title to chapter XXIII and the marginal note to section 239 give some colour to this argument, as does also the somewhat confused drafting and arrangement of the relevant sections. But making all due allowances for these considerations we are of opinion that there is no justification for the suggested limitation on section 230.

Prima facie the word "unlawfully" includes all unlawful acts whether done intentionally or by criminal recklessness or negligence. It is true that in some section of the Code the context requires it to be read as limited to intentional acts or conduct, as, for example, in section 216 (1) and (2); in section 228, and again in section 233 (2). On the other hand there is no such restriction on its meaning in section 233 (1). The intentional causing of grievous harm is made an offence by the provisions of section 227, clause 1, and is punishable with imprisonment for life. It therefore seems reasonable to conclude that section 230 ... w with its lesser maximum punishment of seven years is intended to be limited to $\beta$ cases where grievous harm is caused otherwise than in the circumstances contemplated in section 227. These cases would include the causing of grievous harm by criminally reckless or negligent conduct.

û.

The heading of chapter XXIII is in fact rather misleading for the offences. created by some of the sections therein contained do contain or may contain. the ingredient of intention or knowledge; see, for example, sections 240, 242, 243 and 244. Section 239 is indeed rather an anomaly in the chapter for it is the only section therein which requires the causing of actual harm as an ingredient of the offence prescribed, all the other sections being limited to conduct likely to cause harm or danger. For these reasons we think that the appellant was rightly convicted under section 230 of the Penal Code.

We add, however, that we note in section 227 and in sections 230 and 233 (1). which we think must have been derived from sections 18 and 20 respectively of the Offences against the Person Act, 1861, the draftsman in each section has omitted the word "maliciously". Whatever may have been the reason for this. omission, we think it well to point out that in our view it does not affect the principle stated in $Rex \nu$ . *Bateman* (1925), 19 Crim. A. R. 8 and adopted by this. Court in Rex v. Atia (E. A. C. A. Criminal Appeal 67 of 1948) that on any criminal charge involving negligence the prosecution must prove something more than negligence of a character sufficient to establish civil liability.

The sentence imposed is less than half the maximum prescribed by the section, and cannot be said to be manifestly excessive. The learned trial Judge took into consideration that the appellant had been provoked to anger by the insulting remarks of the injured man: but he also pointed out that far more serious results,. might, as shown by the medical evidence, have followed from the appellant's: reckless use of the pistol. No sufficient grounds have been adduced to justify interference with the sentence.

ŵ

The appeal is dismissed.