[Court of Criminal Appeal]

1949 Present : Canekeratne J. (President), Dias and Windham JJ.

THE KING v. DHARMASENA et al.
Appeals 10-11 of 1949

S. C. 1-M. C. Colombo 36,089

Court of Criminal Appeal-Charge of murder-Cross-examination by Judge- Hostility to accused-Presumption of innocence-Jury might disregard-" Any other ground "-Ordinance 23 of 1938-Section 5 (1).

Where a Judge takes on himself the burden of cross-examination of the accused and conducts it in a manner hostile to the accused there is a miscarriage of justice if such cross-examination may be reasonably considered to have brought about the verdict of " Guilty " where on the whole facts and without this attitude on the part of the Judge the Jury might fairly and reasonably have found the appellant " Not guilty ".

An act of this kind on the part of a Judge comes within the words-" any other ground " in section 5 (1) of Ordinance 23 of 1938 and the-Court of Criminal Appeal can grant a re-trial.

APPEALS from two convictions in a trial before a Judge and Jury.

S. B. Lekamge, for 1st accused appellant.

A. B. Perera, for 2nd accused appellant.

H. A. Wijemanne, Crown Counsel, with J. A. P. Cherubim, Crown Counsel, for the Crown.

March 26, 1949. Canekeratne J.-

The two appellants were convicted of the murder of Govipolagodage Dionysius de Silva Seneviratne, and were sentenced to death, the first appellant being convicted on count one of the indictment, an offence punishable under section 113b read with sections 296 and 102 of the Penal Code, and on count two, an offence punishable under section 296 of the Penal Code. The second appellant was also convicted on count one. She was also charged with having abetted the first accused in the commission of the offence set out in count two but the Jury did not consider that count, as the learned Judge told the Jury that if they were left in a state of honest doubt as regards the charge of conspiracy then both counts one and three fall. On March 16, 1949, this Court dismissed the appeal of the first appellant and quashed the conviction of the second appellant and ordered a new trial, and we now proceed to give our reasons for so doing.

According to the evidence, the first appellant who lives at Nugegoda came to the house of the deceased, 107, College Street, Kotahena, about 8.45 in the morning at a time when the servant woman, Alice Nona, was the only inmate in the deceased's premises and having sent the servant woman away or just after she left the place awaited the arrival of the deceased and proceeded to kill him. Apparently just after this he ran to the adjoining house, threatened the servant woman there, dropped the knife he had and also his sarong with which he had covered his head and ran outside. He had left his umbrella at 107, College

Street; one Khalid saw this accused drop his coat which was found to be stained with human blood, and a purse a little further away and then depart.

The first and main contention of counsel for the first accused was that the method adopted by the learned Judge of refreshing the memory of the witness Alice Nona by rea