[CROWN CASE RESERVED.]

1920.   Present : Shaw J. and De Sampayo J.

THE KING v. APPU SINNO.

4-P. C. Matara, 17,821.

Plea of autre fois acquit-Verdict of acquittal by jury 5 to 2-Direction of Judge to reconsider verdict-Jury divided 4 to 3-Re-trial before another jury-Plea of autre fois acquit-Evidence-Witness not tendered for cross-examination by accused in Police Court-Dis-appearance of witness-Reading of evidence to jury-Criminal Procedure Code, ss. 248,331-Evidence Ordinance, ss. 33 and 167.

The jury returned a verdict of not guilty against the accused, who was charged with murder. The Judge directed the jury to reconsider the verdict. The jury were then divided in proportion of 4 to 3. The Judge discharged the jury. The accused was re-tried before another jury, and the plea of previous acquittal was taken on his behalf.

Held, that the plea was untenable.

A witness gave evidence before the Magistrate when the accused was not present. The Magistrate issued a warrant, but the accused was not arrested for some months. The witness had by this time disappeared, and consequently he was not recalled for cross-examination by the accused. The deposition of the witness was read at the trial before jury without objection.

Held, that the evidence was inadmissible, and should not have been read to the jury.

Held, further, that the provisions of section 167 of the Evidence Ordinance applies to the consideration of a " case stated " after trial by jury.

CASE stated under section 355 (1) of the Criminal Procedure Code by Bertram C.J.:-

1. In this case, before the jury was empanelled, counsel for the defence raised a plea of previous acquittal under section 331 of the Criminal Procedure Code. He argued that a valid acquittal had taken place at a previous trial, which was held at the Galle sessions in July of this year. The note of the Registrar upon the record of the case at that trial was as follows: "Trial : June 30, July 1 and 3, 1920. Verdict : Jury being unable to bring a verdict unanimously, or by the statutory majority, they are discharged, and the prisoner remanded into the custody of the Fiscal to be brought to trial in due course."

2. It was stated by counsel for the defence, and not contradicted by Crown Counsel, that at the previous trial the jury in the first instance returned a verdict of not guilty by a majority of 5 to 2, but that the presiding Judge, under section 248 (2) of the Criminal Procedure Code,

not approving of the verdict, directed the jury to reconsider it, and that thereupon having further retired, the jury announced that they were divided in the proportion of 4 to 3. The Judge thereupon discharged the jury.

3. It was contended by counsel for the defence that under the circumstances the original verdict, being the only verdict delivered, must be taken to be a valid verdict, and that the provision of section 240, which states that " the verdict given after such reconsideration shall be deemed to be the true verdict," only applied when after such reconsideration a verdict is in fact arrived at.

4. I was unable to admit this contention. It appeared to me that in the circumstances no " true verdict " had been arrived at in the trial at all. I would further add that this sub-section is clearly designed to give effect to a principle of the English law of criminal procedure, being drawn in accordance with the express terms of a judgment in an English case. There can be no doubt that in the English law, if a jury was asked to reconsider their verdict and on reconsideration fail to agree, they would be discharged, and the original verdict would be held to have no force. I consider that section 250 must be held to apply to the present case, but if any doubt is entertained as to whether it does apply, and if it is suggested that this is a case in which no express provision has been made, then, in my opinion, it is a case in which recourse may legitimately be had to