[IN THE COURT OF CRIMINAL APPEAL]

1962 Present: Basnayake, C. J. (President), Herat, J., and
G. P. A. Silva, J.

THE QUEEN v. K. A. SANTIN SINGHO
APPEAL No. 57 OF 1962, WITH APPLICATION No. 61

S. C. 250161-M. O. Colombo,144489/B

    Circumstantial evidence-Burden of proof-Summing-up-Misdirection.

In a case of circumstantial evidence, a direction given by the trial Judge, in his summing-up, that the accused person must explain each and every circumstance established by the prosecution is wrong and would completely negative a direction given earlier by him that the circumstances must not only be consistent with the accused person's guilt but should also be inconsistent with his innocence.

The direction that if a prima facie case is made out the accused is bound to explain is wrong and misleading.

APPEAL against a conviction in a trial before the Supreme Court.

Colvin B. de Silva, with S. S. Basnayake, B. Weerakoon and R. Baja-singham (assigned), for Accused-Appellant.

P. Colin-Thome, Crown Counsel, for Attorney-General.

October 16, 1962.   BASHAYAKE, C. J.-

The appellant was by a unanimous verdict of the jury found guilty of the murder of Heenmulle Arachchige Yasawathie and sentenced to death. The case against the appellant rested on circumstantial evidence. The appeal is from that verdict. The grounds urged in the notice of appeal fall under the broad heads of misdirection and illegal reception of evidence.

Shortly the facts are as follows :-The appellant and the deceased were servants employed under George Wijesinghe, proprietory planter of Cotta Road, Borella. The former was his motor car driver and the latter was his cook. The appellant had been two years in his service and the latter had been two months. Before her, the appellant's mistress Alice had been the cook. The other servants in the house were an old man called Agoris and a thirteen year old girl called Magilin. Agoris was a trusted servant who had been about 5 years in the household. The deceased had complained to her mistress about the unseemly behaviour of the accused in trying to enter the bath-room one morning when she was in it, but no action was taken on that complaint.

There is also the evidence of two employees-Jamis and Siyadoris-of the Wijesinghe household in which the appellant and the deceased were both employed. To each of them the appellant had mentioned the bath room incident; and to one of them he had said that Yasawathie was a proud girl and to the other he had said that she was not a person to whom one should speak and that he would not allow her to remain there for long. To one of them he had also mentioned an incident in which the deceased was seen speaking to a man over the parapet wall, and to the other he had mentioned an incident in which she was seen speaking to a man near the bath room. All these circumstances, if established, would point to ill-will on the part of the appellant towards the deceased.

Agoris shared the room at the back of the garage with the appellant. After his noon meal on the day in question when Agoris wanted to have a chew of betel, to slice an arecanut, he looked for his knife which he had concealed under the bench, but it was missing. He stated hi his evidence that only the appellant knew where it was kept and that the appellant also used that knife whenever he needed it. On the day of the murder the appellant had returned after two days' leave and had driven his master's car to Colpetty and returned home about 9.30 a.m. He had brought with him a lunch packet and had his noon-day meal there. After the members of the household had had their lunch, they rested. The servants finished their meals that day about 12.30 p.m. The deceased went to the bath room to bathe and Magilin, the other servant, heard the splashing of water and inferred that she was bathing. When she went to the front compound at about 12.30 p.m. the accused w