[COURT OF CRIMINAL APPEAL.]

Present: Soertsz S.P.J., de Kretser and Jayetileke JJ.

THE KING v. PODIMAHATMAYA

73-M. C. Ratnapura, 38,594.

Accident-Charge of murder-Evidence of exception of accident-Burden of proof-Statement of presiding Judge that accident reduces the offence-Misdirection-Penal Code, s. 73-Evidence Ordinance, s. 105.

The exception of " accident " on behalf of an accused person in terms of section 73 of the Penal Code does not arise for consideration unless the accused adduces some material in support of it either by way of evidence led by him or by way of matters elicited from the witnesses for the Crown or by way of some circumstance clearly pointing to accident or misfortune.

APPEAL from a conviction by a Judge and Jury before the Western Circuit.

F. W. Obeysekera for appellant.

E. H. T. Gunasekara, CC., for the Crown in the appeal.

Cur. adv. vult.

December 18, 1944. SOERTSZ J.-

Of the many grounds of appeal set forth in the notice filed by the appellant, only three appeared to us, on the facts of this case, to call for discussion, and on our intimating our view to Mr. Obeysekera, he confined his argument to them. They are grounds (1), (5), and (13).

(1) Error lay in expressly directing the jury that the burden of proof of accident, by preponderance of evidence was upon the defence in the case.

(5) The defence of accident or misadventure as emerged from both lay and expert evidence was not specifically put to the jury but passed over.

(13) The jury were misdirected on the law relating to exception, proof, and accident.

The first point submitted for our consideration, was that the Commissioner's charge when he said to them-

" There are certain exceptions in the Penal Code which would reduce the offence of murder to culpable homicide not amounting to murder. The onus of proving the exceptions, both general and special exceptions, lies on the accused .... When death is caused by accident, it comes within an exception, and the burden of proving the accident is on the accused,"

was on the facts of this case incomplete, and that it must have left the jury with the impression that the exception of " accident ", if satisfactorily established, would only reduce the offence, not that it would excuse it, whereas, of course, in law " accident " if found by the jury would completely exonerate the accused.

Counsel pointed to the fact that the Commissioner, in the course of his charge, dealt with the question of accident at some length, and he submitted that the verdict of the jury might well mean that they found that the death of the deceased was due to an accident, and yet returned him guilty of culpable homicide not amounting to murder in view of the direction they had been given. There, undoubtedly, is great force in this argument in abstractor, but in relation to the facts of this case, it is of hardly any consequence for, in our view, on a careful consideration of all the evidence, there was no case of " accident " to go to the jury at all. Our law in regard to accident as a defence to a criminal charge is contained an section 73 of the Penal Code. It enacts that-

" Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act, in a lawful manner, by lawful means, and with proper care and caution "

Then, there is section 105 of the Evidence Ordinance which provides that-

" When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code .... is upon him and the Court shall presume the absence of such circumstances ".

These provisions make it manifest that for the exception of accident to arise for consideration the person accused must, at least, adduce some" material in support of it either by way of evidence led by him, or by way of matters elicited