Thuraisamy, V. V. The Queen

[COURT OF CRIMINAL APPEAL]

1952 Present: Gunasekara 1. (President), Pub 1. and Swan J.

V. THURAISAMY, Appellant, and THE QUEEN, Respondent

APPEAL 51 WITH APPLICATION 81

S. C. 11.-M. C. Mannar, 13,646

Criminal Procedure Code-Evidence in rebuttal-Section 237(1)-Scope of- Evidence Ordinance, a. 155.

Accident-Burden of proof -Misdirection-Penal Code, a. 73.

Evidence of admissible admissions by the accused that could have been given before the close of the case for the prosecution cannot be given subsequently as evidence in rebuttal to impeach the credit of the accused as a witness.

In a trial for murder by shooting the fact that the accused gives evidence to the effect that the gun went off accidentally does not place on him a burden to satisfy the jury that his version is probably true. The question is not whether there are circumstances bringing the case within the exception of accident but whether the prosecution has proved that the accused fired the gun intentionally, and he is entitled to be acquitted if there is a reasonable doubt on that point.

APPEAL, with application for leave to appeal, against a conviction trial before the Supreme Court.

V. S. A. Pullenayagam, for the accused appellant.

J. G. T. Weeraratne, Crown Counsel, for the Crown.

October 15, 1952. GUNASEKARA J.-

At the close of the argument in this case we quashed the conviction of the appellant and ordered a new trial, and we said that we would give our reasons later.

The appellant, a man of 27, was convicted of the murder of a young woman of 17 named Mariyai by shooting her. He was a servant in the employ of a landowner named Soosapillai living in, the village of Manalkoddai in Mannar. The deceased too lived in that village with her parents; and a young man named Subramaniam, to whom she was engaged to be married, lived with them in the same house. At about 8 am. on the 20th March last when the deceased was in her garden she was fatally wounded by the discharge of a shotgun which belonged to Soosapillai's father Roche and was in the appellant's hands at the time. Hearing the report of the gun and a cry of distress, Subramaniam ran up from a vegetable plot close by, and the appellant shot at him, wounding him on a leg, and ran away. At the trial the appellant gave evidence to the effect that the gun went off accidentally and wounded the deceased, and that he shot at Subramaniam in self-defence when

the latter came at him with an uplifted mammoty. The main grounds of appeal relate to the admission in evidence of certain statements alleged to have been made by the appellant about his relations with the deceased and about a visit early that morning to Roche's house where Soosapillai was living, and to the presiding judge's directions on the effect and bearing of that evidence and on the burden of proof.

The prosecution closed its case without adducing evidence of any facts constituting a motive for the alleged murder. For proof that the appellant shot the deceased intentionally it relied in part upon evidence to the effect that on the morning of that day, before the shooting, the appellant had taken the gun from Roche's bedroom in the absence of both Roche and Soosapillai from their house. This evidence was given by a woman named Sinnamma, of Pallimunai, who claimed to have been at Roche's house that morning. The appellant denied the truth of this evidence and said that on the contrary Soosapillai himself had given him the gun and three cartridges early that morning and ordered him to go to Soosapillai's fields and see if they had been damaged by cattle and elephants. In cross-examination it was put to him by crown counsel that he had been on very friendly terms with the deceased, that she had promised to marry him, and that two weeks before her death he had asked her to marry him. He denied these suggestions, and also denied a further suggestion that on the 21st March he

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