Yahonis Singho,K.D. V. The Queen

[COURT OF CRIMINAL APPEAL]

1964 Present : T. S. Fernando, J. (President), Sri Skanda Rajah, J.,
and G. P. A. Silva, J.

K. D. YAHONIS SINGHO, Appellant, and THE QUEEN, Respondent

C. C. A. 99 OF 1964, WITH APPLICATION 103

S. C. 41.-M. C. Panadura, 81251

Trial before Supreme Court-Defence of alibi--Burden of proof-Misdirection.

The accused-appellant was charged with murder, and his defence was that of alibi. The prosecution relied on the evidence of a witness who stated that he saw the accused stabbing the deceased. The accused called as his witness a man, S, who stated that, at the time of the offence, the accused was seen at a boutique which was about one-eighth of a mile away from the scene of the offence. When the trial Judge, in his summing-up, dealt with S's evidence, he omitted altogether to give the jury any direction as to what they were to do if they neither accepted S's evidence as true nor rejected it as untrue.

Held, that the omission to direct the jury on the intermediate position where there was neither an acceptance nor a rejection of the alibi was a non-direction on a necessary point and constituted a misdirection.

APPEAL against a conviction in a trial before the Supreme Court. Colvin R. de Silva, with L. V. P. Wettesinghe, for the accused-appellant.

V. S. A. Pullenayegum, Crown Counsel, for the Crown.

Cur. adv. vult.

October 26, 1964. T. S. FERNANDO, J.-

The appellant appealed against his conviction by a 6 to 1 majority verdict of the jury on a charge of murder of one Panditharatne and the sentence of death pronounced on him as a consequence of that verdict.

The point raised on his behalf at the hearing of his appeal was that in respect of the burden of proof in the case there was an inadequate direction of the jury by the trial judge. The defence relied on being that of an alibi, the point specifically urged on behalf of the appellant was that there was a failure on the part of the trial judge to direct the jury in regard to the impact of the evidence of the alibi on the case for the prosecution.

The prosecution led evidence of a direct nature, that of a son of the deceased, the witness Amaradasa, in an effort to establish that the appellant stabbed the deceased. The Appellant, who has a tea boutique about ode-eighth of a mile from the place where the deceased was alleged to

have been stabbed, called as his witness a man of the name of Sirimane who testified that the appellant was serving tea to his customers (including Sirimane himself) at the time cries were heard from the direction in which the stabbing of the deceased must have taken place. Sirimane went on to say that on hearing those cries he went in that direction and saw  the deceased lying fallen on the edge of the road, and that he waited at that spot for about ten minutes before leaving for his home.

In regard to this evidence of an alibi, the learned trial judge directed' the jury at two different stages of his charge. At the earlier of these two stages he stated:-

" I would like you at this stage to consider the evidence of Sirimane. Sirimane's evidence is that at the time he heard the cries of " ammo "-I believe in answer to you he said that the distance between the accused's boutique and the scene was about 1/8 of a mile- the accused was in his boutique serving customers. If you accept that evidence, it must straightaway throw doubt on the prosecution case and the accused is entitled to be acquitted. "

At the later stage, he addressed the jury thus :-

" As I told you a while ago, if you accept his (Sirimane's) evidence it throws doubt at once on the prosecution story and the accused is entitled to an acquittal; but, if you reject his story, it does not follow that the accused should be found guilty, because the burden is always on the Crown to prove beyond reasonable doubt that it was this accused who caused the fatal injury on the deceased. That

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