082-NLR-NLR-V-75-K.-KANDAKUTTY-Appellant-and-THE-QUEEN-Respondent.pdf
H. N. G. FERNANDO, C.J.—Kandakutiy v. The Queen
457
[Court of Criminal Appeal]
1971 Present: H. N. G. Fernando, C.J. (President), Samerawtakrame, J.,
and Thamotheram, J.
K. KANDAKUTTY, Appellant, and THE QUEEN, RespondentC. C. A. Appeal No. 79 of 1970, with Application No. 128S.C. 109170—M.C.Kalmunai, 38125
Charge of murder—Defence of accident—Burden of proof—Misdirection.
In a prosecution for murder by shooting, the defence was that the deceasedman was shot accidentally in consequence of an attempt made by anotherman to wrest the accused's gun.
Held, that, where a plea of acoident is raised, it would be a misdirection totoll the Jury that there is a burden on the accused to satisfy them that hisversion is probably true. In the present case, it was the duty of the Judgeto have directed the Jury that, if on the evidence led in the whole case theyentertained a reasonable doubt on the question whether or not the shootingwas accidental, the accused was entitled to an acquittal.
Appeal against a conviction at a trial before the Supreme Court.
A. C. de Zoysa, with I. S. de Silva, Justin Perera, Anura Vellappali and
Asoka Ounasekera (assigned), for the accused-appellant.
P.Colin Thome, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
January 27, 1971. H. N. G. Fernando, C.J.—
The principal question which arose for the determination of the Juryupon the charge of murder in this case was clearly stated at thecommencement of the summing-up of the learned trial Judge:—
“ The issue that calls for a decision by you in this case is : did theaccused deliberately with the intention to kill shoot at the aocused,or did this gun which the accused had with him fire off accidentallywhile he was struggling with the deceased’s father-in-law Ponnan.In short the issue iB, was the firing intentional or accidental ? ”
The summing-up further contained the usual general directions of lawand a summary of the prosecution evidenoe. Thereafter the trial Judgedirected the Jury as follows :—
" Now, Gentlemen, that is the essence.of the Crown case, which Ihave summed up to you. You will now turn to the defence. Thedefence is one of acoident. ”
Volume LXXV
468
H. N. G. FERNANDO, O.J.—KandaJcuUy v. The Queen
" The accused says that the shot went off accidentally. Now, Imust tell you the onus is not on the accused to prove his caseaffirmatively, like in the case of the Crown having to prove the casebeyond all reasonable doubt. The burden on the accused is not soheavy. If the accused’s story is a probable story, though you mightbelieve it, if you think it is a probable story then he had discharged theduty cast on him ; if the story is probable, you should in thosecircumstances acquit the accused. And again you must examine theevidence in the background of reality and aBk yourselves ‘ Is thiBstory, a story, which for a moment, can be believed ? ’ If you thinkit is a fantastic story then you are entitled to throw it over-board andreject his evidence. If you think it is a false story you reject it. Then,Gentlemen, however painful it may be, you will have to do your duty,and if you reject the defence version then the verdict that you willbring will be one of guilty of murder, or as indicated by me. ”
The principal argument of Counsel for the appellant was that thesedirections wrongly placed on the defence the burden of proving that thedeceased man was Bhot accidentally.
The case of Dionis1 was, like the instant case, one in which the accusedhad stated in evidence that his gun went off in consequence of an attemptmade by another man to wrest the gun. This Court made the followingobservations:—
‘ ‘ In the opinion of the Court there was no burden on the appellantto prove any of the facts alleged by him. The burden lay throughouton the Crown to prove beyond reasonable doubt that the death inquestion was caused by an act done by the appellant and doneby him with the intention or knowledge requisite for the constitution ofthe offence of murder. If his version of the circumstances created areasonable doubt either as to the factum or as to the mens rea he wasentitled to be acquitted of the offence charged. It was a misdirectionto tell the Jury that there was a burden on the appellant to satisfythem that his version was probably true and that* he must not leavethe matter in doubt ”
Again, in the case of Thuraisamy *, where also the accused gaveevidence as to an accidental shooting, this Court held that it was a mis-direction to tell the Jury that there was a burden on the accused tosatisfy them that his version was probably true. Gunasekara, J. addedthat the appellant in that case would have been entitled to an acquittal“ even if it waB not proved that the injury was a result of an accident butthere was a reasonable doubt on that point” . In the instant case theJury were not directed that, if on the whole of the evidence they enter-tained a reasonable doubt on the question whether or not the shootingwas accidental the accused was entitled to an acquittal.
.* {1951) 52 N. It. R. 547.
(1982) 88 N. L. R. 449.
Samerakoon Banda v. The Queen
456
We were in agreement with CounBel’a submission that there was a mis-direction as to the burden of proof, which in the words of Gunasekara, J.1is " a misdirection on a fundamental point
Learned Senior Crown Counsel submitted that we should order a freshtrial. We did not however consider this a fit case for a fresh trial,because there were several matters which cast doubt on the truth of theprosecution evidence
It suffices to mention only one of these matters : the evidence of theprincipal witness Ponnan was that he was walking along the road, withthe deceased man following him just two feet behind. According toPonnan the accused approached him from the opposite direction anduttering some words of abuse fired a gun from a distance of about 10feet, and it was this shot which injured the deceased man. Accordingto his evidence, the deceased man received an injury from a gun shotfired at a range of less than 15 feet.
The Assistant Government Analyst who was a witness at the trial statedhis opinion that the minimum range at which the shot had been fired was40 feet. His opinion as to a range of 40 feet supported the accused’sversion that when Ponnan tried to wrest the accused’s gun and the gunfired, the deceased man was not close to Ponnan.
Had the attention of the Jury been directed to the evidence of theAssistant Government Analyst, it is unlikely that the Jury would havefound acceptable Ponnan’s version that the accused fired towards twopeople who were then only about twelve or fifteen feet away from theaccused.
For the reasons now stated 'we quashed the conviction and acquittedthe accused.
Accused acquitted.