1939 Present: Soertsz A. C. J., Hearne S. P. J. and Cannon J.

THE KING

v. VIDANALAGE ABRAHAM APPU.

89-P. C. Avissawella, 17,610.

Insanity-Indictment for murder-Plea of insanity-Burden of proof upon accused-Nature of proof-Case of doubt-Direction to Jury-Evidence Ordinance, s. 105.

Where, in a charge of murder, the defence of insanity is set up, the burden is upon the accused to prove that he did not. know the nature of the act or that it was contrary to law.

It is not sufficient for the defence to raise a doubt in the minds of the Jury as to the sanity of the prisoner.

Where a plea of insanity is set up and the issue of insanity is left in doubt, it would be a misdirection to ask the Jury to give the accused the benefit of the doubt.

THIS was a case stated by the Attorney-General in terms of section 355 (3) of the Criminal Procedure Code. The facts are stated as follows: -

The prisoner was tried on May 5, 1939, before the Honourable Mr. O. L. de Kretser and an English-speaking Jury on an indictment charging him with having committed murder by causing the death of one Poonahelagoda Mudiyanselage Heras Singho alias Entappu, an offence punishable under section 296 of the Penal Code.

By an unanimous verdict the prisoner was convicted of culpable homicide not amounting to murder, an offence punishable under section 297 of the Penal Code and he was sentenced to ten years' rigorous imprisonment.

At the trial a defence of insanity was set up on behalf of the prisoner.

In several places in his charge to the Jury, the learned Judge directed them to the effect that this defence was entitled to succeed if they were satisfied on the evidence that the prisoner was of unsound mind and did not know the nature of the act or that it was wrong or contrary to law: -

(a) ?It is therefore only if a person is proved not to know the nature of the act or not to know that it is wrong or contrary to law that he is treated as a lunatic, and the law states that although he did it, he is not responsible?.

(b) "If you think he knew that the knife was open and deliberately caused the injury, whether he intended death or not, it would be prima facie murder. If you are satisfied on the medical evidence and other evidence that the accused did not know what he was doing, or that it was wrong or contrary to law, you will not find him guilty, but you will find that he committed the act".

(c) "The question is whether on that evidence you can hold that he was of unsound mind?.

(d) ?Do you think putting those things together he must have been mad at the time he committed this act, that he did not know what he was doing?.

(e) ?It is murder if you are satisfied that the man intentionally caused the injury and was not of unsound mind, or it is at least hurt if you think he intended and used his fist or closed knife and did not know that he was using an open knife. In either case if you think he was of unsound mind, then your verdict will be that he committed the act but not guilty by reason of unsoundness of mind?.

(f) ?If he was not of sound mind-if he did not know the nature of the act or that it was wrong or contrary to law, then you acquit him, but you will also bring in a finding that he committed the act. If you find that he was of sound mind, then your finding should be murder or- culpable homicide not amounting to murder?.

Finally, the learned Judge went on to say-

?Accused does not come before you innocent in the sense that he is not proved to have committed the offence. The only question is what is the actual offence he has committed if he was of sound mind, and (2) was he of sound mind or not? As between those matters you will remember always that an accused person is always given the benefit of any reasonable doubt-as between any two situatons, if there is a reasonable doubt-a doubt which appeals to your commonsense, you will give the benefit of the doubt to