[COURT OF CRIMINAL APPEAL.]

1942 Present: Soertsz, Keuneman. and Jayetileke JJ.

THE KING v. MUDIYANSE.

10-M. C. Kurunegala, 6,053.

Plea of Self-defence-Charge to the Jury-Burden of proof-Evidence Ordinance s. 105-Questions put by Jury to Judge-Confused state of mind-Re-trial.

Where in charging the Jury in regard to the plea of private defence the Judge stated as follows :-

" In that connection I must say that by law the burden is placed on an accused person to prove to you that he was exercising that right. Now that burden is not so heavy as is imposed on the Crown to prove its case beyond all reasonable doubt. All that the accused had to do is to show by a preponderance or balance of evidence that the circumstances are such as to bring him within this provision of law."

Held, that there was no misdirection of law.

Where it appears to the Court of Criminal Appeal from questions put to the Judge by the Jury, before returning their verdict, that the Jury were in an extremely confused state of mind, although the Judge had charged them fully and properly, the Court may order a re-trial.

APPEAL from a conviction by a Judge and Jury before the 2nd Midland Circuit 1942.

J. E. M. Obeyesekere (with him V. F. Guneratne), for accused-appellant, who is also the applicant in the application.

E. H. T. Gunasekera, C.C., for the Crown-

Cur. adv. vult.

October 26, 1942. SOERTSZ J.-

This is an appeal from a sentence of death passed on the appellant by the Presiding Judge, when the Jury empanelled to try the case returned a verdict of six to one, finding the appellant guilty of the offence of murder with which he was charged.

The case for the Crown was that the appellant had taken the deceased man at a disadvantage, and stabbed him while he was reeling to a fall under two blows dealt him by the appellant's brother.

The Medical Officer, who performed the autopsy, found an injury that, if it was not necessarily fatal, was undoubtedly, sufficient to cause death in the ordinary course of nature.

The case for the defence was that the appellant stabbed the deceased man when he was about to attack the appellant's brother with a knife and that, in the circumstances of the case, it was justifiable homicide. On this plea, there also arose the question whether the appellant's offence was not that of culpable homicide not amounting to murder if, in the view of the Jury, he had exceeded the right the law gave him.

Counsel for the appellant appears also to have submitted to the Jury for their consideration, as alternative defences, the questions whether the appellant's offence was not that of culpable homicide not amounting

to murder either on the ground that, at the time he caused the death of the deceased, he had been deprived of his power of self-control by grave and sudden provocation ; or on the ground that the death of the deceased occurred in circumstances that brought the case within the plea of a sudden fight.

The learned Judge charged the Jury as fully and as clearly as was possible. He explained to them the meaning of the word " murder" and repeatedly drew their attention to the fact, that, for the constitution of that offence, it was necessary that there should be, on the part of the assailant, an intention either to cause death or to cause bodily injury sufficient, in the ordinary course of nature, to cause death. He then told them that if they could not find such an intention, or were in reasonable doubt as to the existence of such an intention, they should not find him guilty of murder, but should go on to consider whether they could find that he had the knowledge that his act was likely to cause death. If they so found, the offence would be that of culpable homicide not amounting to murder. If they did not find even this requisite knowledge, or had a reasonable doubt in regard to it, they would then go on to consider whether he intended to cause the grievous i