[COURT OF CRIMINAL APPEAL.]

1942 Present: Howard C.J., Soertsz, Hearne, Keuneman, de Kretser,
Wijeyewardene and Jayatileke JJ.

THE KING v. JAMES CHANDRASEKERA.

6-M. C. Galle, 33,768.

Self-defence-Plea of a general or special exception under the Penal Code- Accused fails to establish the plea-Reasonable doubt created on the whole case-Accused not entitled to the benefit of the doubt-Evidence Ordinance, ss. 2,3, 4, 103, and 105.

By Howard C.J., Soertsz, Hearne, Keuneman, Wijeyewardene, Jayatileke JJ. (de Kretser J. dissenting) :-

Where, in a case in which any general or special exception under the Penal Code is pleaded by an accused person and the evidence relied upon by such accused person fails to satisfy the Jury affirmatively of the existence of circumstances bringing the case within the exception pleaded, the accused is not entitled to be acquitted if, upon a consideration of the evidence as a whole, a reasonable doubt is created in the minds of the Jury as to whether he is entitled to the benefit of the exception pleaded.

Per Howard C.J.:-

" The Jury shall regard the fact as proved that the accused did not exercise the right of private defence till it is satisfied that he did so or that it is so probable that he did so that a prudent man should act upon that supposition. "

THIS was a case stated for the decision of the Court of Criminal Appeal in terms of section 355 (1) of the Criminal Procedure Code, as affected by section 21 of the Court of Criminal Appeal Ordinance.

The question stated for decision was whether, having regard to section 105 of the Evidence Ordinance and to the definition of " proved" in section 3 thereof, in a case in which any general or special exception in the Penal Code is pleaded by an accused person and the evidence relied on by such accused fails to satisfy the Jury affirmatively of the existence of circumstances bringing the case within the exception pleaded, the accused is entitled to be acquitted if, upon a consideration of the evidence as a whole,, a reasonable doubt is created in the minds of the Jury as to whether he is entitled to the benefit of the exception pleaded.

The facts are stated in the reference by Moseley S.P.J. as follows : -

1. The prisoner, James Chandrasekera, was tried on October 5, 6, and 7, 1942, before me and an English-speaking Jury on an indictment charging him with having committed murder by causing the death of Talpe Liyanage Francis, an offence punishable under section 296 of the Penal Code.

2. By a unanimous verdict the accused was convicted of causing grievous hurt, an offence punishable under section 317 of the Penal Code, and he was sentenced to nine months' rigorous imprisonment.

3. At the trial the causing of death was common ground and the defence set up on behalf of the accused was that, in causing the death of the deceased, he was acting in the exercise of the right of private defence.

4. A statement of the facts appears to me to be unnecessary. The accused and one witness for the defence gave evidence detailing the circumstances in which they claimed that the right of private defence arose. No evidence of such circumstances emerged from the case for the prosecution.

5. If the Jury believed the evidence of the accused and his witness, the former, in my opinion, was entitled to an acquittal. The accused, however, having sought to excuse his offence under the protection of section 89 of the Penal Code, was faced with the burden of proof placed upon him by section 105 of the Evidence Ordinance. This section was quoted in extenso to the Jury by Counsel for the accused. Having done so he read passages from the decision of the House of Lords in the case of Woolmington v. Director of Public Prosecutions[(1935) A. C. 462.] and impliedly invited me to direct the Jury in the words of Sankey L.C., that if they " are either satisfied with his (accused's) explanation or, upon