1934   Present : Akbar J.

THE KING v. ATTYGALLE et al.

 6-P. C. Kandy, 44,762.

IN THE MATTER OF AN APPLICATION UNDER SECTION 355 OF THE
 CRIMINAL PROCEDURE CODE.

Evidence-Charge of performing an illegal operation-Statement by accused to Police Officer to the effect that he treated complainant for abortion- Exculpatory statement-No confession-Burden of proof-Direction to Jury-Evidence Ordinance, ss. 206 and 145.

Where the accused who was charged with having performed an illegal operation on a woman gave evidence on his behalf and was cross-examined by the Crown on a statement made by him to a Police Officer to the effect that he had treated her for threatened abortion and had advised her removal to hospital.

Held, that the statement was not a confession within the meaning of section 25 of the Evidence Ordinance, as it was exculpatory in its effect.

Held, further, that the statement was admissible to test the credibility of the accused under section 145 of the Evidence Ordinance.

Where the Judge directed the jury that if in opposition to the case based on circumstantial evidence for the Crown the accused's explanation, although the burden was on him under section 106 of the Evidence Ordinance, had the effect of making them not only believe him but even causing a doubt in their mind that any illegal operation was performed, the jury was bound to give the accused the benefit of the doubt.

Held, that there was no misdirection to the jury regarding the burden of proof.

THIS was an application under section 355 (1) of the Criminal Procedure Code to reserve two questions of law on behalf of the first and second accused, who were convicted before the Supreme Court, the first accused with having performed an illegal operation on the complainant and the second accused with having aided and abetted the first accused.

Aelian Pereira (with him D. W. Fernando), for first and second accused.

Crosette Tambiah, C.C., as amicus curiae.

September 14, 1934. AKBAR J.-

This is an application under section 355 (1) of the Criminal Procedure Code on behalf of the first and second accused who were convicted and sentenced by me, after trial before me and a jury on August 28, 1934, that I should reserve and refer for the decision of a Court, consisting of two or more Judges, two questions of law which it is stated arose on the trial, viz., (a) that I was wrong in allowing the Deputy Solicitor-General to cross-examine the first accused when he gave evidence in the witness-box on a statement he had previously made to the Assistant Superintendent of Police, Mr. Gunaratne of the Criminal Investigation Department, Ceylon; (b) that I was wrong in directing the jury under section 106 of the Evidence Ordinance that the burden shifted to the accused without calling their attention to the fact that the prosecution must first prove its case.

Mr. Crown Counsel Crosette Tambiah, who was junior counsel to the Deputy Solicitor-General at the trial, appeared as amicus curiae at the argument on notice served on the Deputy Solicitor-General and himself. Dr. Attygalle, the first accused, at the close of the case for the prosecution gave evidence on his own behalf, and, after he had been cross-examined for some time by the Deputy Solicitor-General, the latter moved to cross-examine him on a statement which he had made to Mr. Gunaratne, the Assistant Superintendent of Police, Criminal Investigation Department, on April 26, 1934.

On the authority of the latest Full Bench decision in King v. Cooray et al.[1 28 N. L. R. 74.] I allowed the Deputy Solicitor-General to cross-examine the first accused on this statement, as it was a statement which was entirely exculpatory. Mr. Pereira argued that I was wrong in doing so, because he stated that the statement was a confession made to the Police, in the sense that certain passages in it suggested the inference

of guilt. The Crown case was that