[COURT OF CRIMINAL APPEAL.]

1941 Present: ,Moseley S.P.J., Keuneman and Wijeyewardene JJ.

THE KING v. WIJEYERATNAM.

15-M. C. Mallakam, 21,265.

Evidence-Charge' of murder of a named person-Evidence of injuries on other persons murdered at same time-Relevance,-Meaning of words" without any excuse" in clause 4 of Penal Code, s. 294-Duty of Judge to give direction-Proof of affidavit.

In a charge of murder the cross-examination of the witnesses for the prosecution indicated that the defence relied on the theory that the injuries sustained by the deceased person (S) and others were inflicted in a hand-to-hand conflict.

The crown led evidence to prove that fatal injuries were caused not only to (S) but also to two others, by gunshot wounds which could not have been inflicted at short range.

Held, that the evidence was relevant.

The King v. Mendias (42 N. L. R. 244) distinguished.

Where an affidavit which was alleged to have been sworn by the accused and which was put in evidence by the Crown was not proved according to law and where its submission gravely prejudiced the case for the accused

Held, that the conviction was bad.

Obiter, where the Judge puts to the jury clause 4 of section 294 of the Penal Code a precise direction is necessary as to the nature of the circumstances, which might come within the meaning of the words" without any excuse" in the Clause, and which might reduce the offence from murder to culpable homicide not amounting to murder.

APPEAL from a conviction by a Judge and jury at the first Northern Circuit.

G. G. Ponnambalam (with him S. N. Rajaratnam, S. Saravanamuttu and G. G. Hoover), for the accused, appellant.-The evidence relating to the death of two persons other than the deceased, Sangarapillai, and to injuries to other persons was improperly admitted, and caused serious prejudice. Such evidence would have been admissible only if the defence was one of mistake or accident. No such defence was either raised or foreshadowed. See The King v. Mendias[(1941) 4 N. L. R. 244]; Phipson on Evidence (7th ed.) p.68; R. v. Bernard[ 1 F. and F. 240.]; R. v. McGrath & McKevitt[ (1881) 14 Cox's C G. 598.]; R. v. Radley [L. R.(1913) 3 K. B. 469 at 473].

In the summing-up' the attention of the jury was drawn to clause 4 of section 294 of the Penal Code. No direction, however, was given in regard to the meaning of the words" without any excuse". The onus was on the Crown to prove that there was no excuse. See Ratanlal's Law of Crimes (14th ed., p. 720 et seq.) and the cases referred to there.

The Crown produced in rebuttal an affidavit which was alleged to have been sworn by the appellant in connect on with an application for bail to the Supreme Court. There was no definite proof, however, that the person who made the affidavit was the appellant. The document was

adversely commented upon by the presiding Judge and thus gravely prejudiced the case against the appellant. An affidavit cannot be used as evidence even against him by whom it is sworn without proof of the handwriting-Barnes v. Parker[ (1866) 15 L.T.218]'. The ordinary rule regarding proof of-a document would apply to proof of an affidavit also. It was held in Rex v. Kadirgamen [(1940)41N.L.R.534] that even a deposition should be formally produced. The affidavit produced in this case cannot fall under section 80 of the Evidence Ordinance. It was not sworn before a person duly authorised under section 428 (a) of the Criminal Procedure Code. No general rules concerning affidavits have yet been passed under section 49 of the Courts ,Ordinance. Nor was the affidavit sworn before a District Judge or Magistrate. The document was, therefore, not a record of evidence given in a judicial proceeding See also A I. R. 1939 Cal. 657 and Sarkar on Evidence (6th ed.) p. 630.

Nihal Gunesekera, C.C. (with him S. Alles), for the Crown.-The evidence regarding the death of, and the injuries on, o