COURT OF CRIMINAL APPEAL

1948 Present : Jayatileke S.P.J. (President), Canekeratne and Gratiaen JJ.

THE KING v. SATHASIVAM APPEAL No. 72 OF 1948

S. C, 8-M. C. Jaffna, 10,091

Court of Criminal Appeal-Charge of murder-Confession of accused-Jury may believe part and disbelieve rest.

Where an accused makes a statement, part of which incriminates him while part is exculpatory, the whole confession must be taken and it is open to the jury to attach different degrees of credit to the different parts.

APPEAL from a conviction in a trial before a Judge and Jury.

S. Sharvananda, with A. Jayasuriya and G. A. Thavathuray, for the appellant.

J. A. P. Cherubim, Crown Counsel, for the Crown.

Cur. adv. vult.

September 24, 1948. JAYETILEKE S.P.J.-

The appellant was convicted at the Jaffna Assizes on August 25, 1948, of murder and was sentenced to death.

The deceased was the wife of one Kandiah, a dhoby, who washed for the appellant and the members of his family. The prosecution led evidence to prove that the appellant went to Kandiah's house on the morning of the tragedy with a message from his mother requesting the deceased to come for her wages, and the deceased went with the appellant. A little later one Ponniah, a boutique-keeper, went into a palmyrah grove hearing crief of murder and saw the appellant running away from it and the deceased lying fallen in a dying condition. The prosecution proved further a confession made by the appellant to one Suppiahpillai that he had killed a woman, and another confession (P9) made by him to the magistrate. In P9 the appellant has stated that two or three days before the tragedy the deceased abused him for not paying a sum of Rs. 2 which he owed her, and attempted to strike him with an ekel broom. On the day of the tragedy he met the deceased when he went to cut palmyrah leaves, and the deceased abused him again. He then lost his temper and stabbed the deceased. The prosecution led evidence to prove that there was no quarrel between the deceased and the appellant two or three days before the tragedy, but it was unable to lead any evi­dence as to the circumstances under which the appellant inflicted injuries on the deceased.

The presiding Judge in his charge to the jury pointed out that there was no motive for the crime and invited the jury to consider whether the circumstances under which the appellant inflicted the injuries were such as to reduce the offence from one of murder to culpable homicide not amounting to murder. He said :-

Once the Crown has discharged the burden, then prima jade it will be a case of murder. Then you will go on to consider, on all the evidence, that these blows were delivered upon grave and sudden provocation while the accused was deprived of his power of self-control. And you will bear in mind that the only evidence as to the circumstances in which they were delivered, is his confession to the Magistrate. But, of course, it is open to you, if you feel like that, to find that that confession was a fabrication, and you will bear in mind the evidence of Kandiah, who certainly contradicts some of the earlier par