[COURT OF CRIMINAL APPEAL]

1945 Present: Wijeyewardene, Cannon and Rose JJ,

THE KING v. SATHASIVAM et al.

38-41-M.C. Jaffna, 6,291.

Court of Criminal Appeal-No presumption of innocence in favour of witnesses when allegations are made against them-A rider brought by Jury should be spontaneous-Offence of causing death by doing an act with the knowledge that death is likely to result-Failure of Judge to give proper directions-Effect of misdirections in summing-up-Penal Code, ss. 33, 293.

Five persons were charged with murder. The first accused was acquitted and the second, third, fourth and fifth accused were convicted of culpable homicide not amounting to murder.

The deceased died of gun-shot injuries. There were no eye-witnesses as to the actual shooting, but shortly before and after four shots were heard and he deceased fell the second, third, fourth and fifth accused were seen in the vicinity. On the day following the night of the incident the police found four empty cartridge cases at a distance of over 80 yards from the spot where the deceased fell. These empty cartridges were, according to the opinion of an expert witness called by the Crown, fired from the gun which the police found in the house of the second accused.

The suggestion on the part of the Crown was that the accused were incensed by the cremation of a member of the Nalavar caste in a Vellala crematorium and went to the scene actuated by a common purpose to fire at the mourners with a murderous intention. By their verdict the Jury negatived the murderous intention but found that all four accused had the knowledge that by the shooting death was likely to result.

The second accused gave evidence on his own behalf in which he denied his presence at the scene. It was not disputed by the defence that the empty cartridges were similar to the cartridges which the second accused kept in his own house but it was suggested that in all probability the police had effected a substitution of the cartridges in question. The third, fourth and fifth accused gave no evidence and called none on their behalf.

On the question of the alleged substitution of the cartridges, in a passage towards the end of his charge to the Jury, the trial Judge directed that there was a presumption of innocence in favour of the accused and that presumption was part of a larger presumption, namely, that there was always a presumption of innocence whenever an allegation of criminality was made against anybody, and when the defence made suggestions against the police officers a presumption of innocence also arose in their favour which made it necessary for them to furnish some proof that the allegations they made were justified. Further, the Jury were invited, if they so wished, to bring in a rider that the allegations against the police were not substantiated: -

Held, (i) that the direction to the Jury was open to objection, for there was no Such presumption of innocence in favour of a witness for the prosecution;

(ii) that a rider of the Jury brought on the invitation of the Judge -would lack that spontaneity in which its value lies;

(iii) that, having regard to the Jury's verdict, it was important to see whether the Jury had been adequately directed not only as to common intention but also as to the matters which they should have considered before they could properly have returned a verdict that the three persons who did not fire had the knowledge that the shooting by the fourth was done in such circumstances as was likely to cause death;

(iv) that, where in a summing-up there are substantial misdirections as to the Law, it is not safe to adopt the line of reasoning that because in other parts of the summing-up the Judge has adequately, although only in general terms, directed the Jury, the misdirections should be disregarded;

(v) that the misdirections in the summing-up made it impossible for the verdict agai