DRIEBERG J.—Rex. v. Carupiyah.
1933Present: Drieberg J.REX v. CARUPIYAH et al
23—P. C. Matale, 3,189.
[Second Midland Circuit.]
Footprint impressions—Right of Court to order an accused’s footprints to betaken—Photographs of impressions taken by police—Admissibility inevidence—Method of proof—Criminal Procedure Code. s. 73.
A Court has no power to order an accused person to submit impressionsof his foot to be taken for the purpose of allowing a photograph of suchimpression to be used as evidence against him. Photograph of animpression taken by the police at the police station without objectionby the accused may be led in evidence.
It is open tp the jury to examine the photograph of the impressionand to compare it with certain blood-stained footprints, the identity ofwhich with the accused’s it is sought to establish.
HE accused in this case was charged before the Supreme Court withmurder of one Victoria Jesudasen. The Crown Counsel asked the
Court for a ruling on the admissibility of certain evidence he proposed tolead. The facts appear from the order.
R. S. S. Goonewardene, for first accused.
Mackenzie Perera, for second accused.
R. St L. P. Deraniyagala, C.C., for the Crown.
Cur. adv. vulc.
October 3, 1933. Drieberg J.—
While opening the case for the prosecution, Crown Counsel asked for aruling on the admissibility of certain evidence he desired to lead.
On the floor of the house, in which Victoria Jesudasen was found deadof injuries,'were blood-stained footprints; one of these was photographed(exhibit P 31a). For the purpose of comparison, two impressions weretaken of the right foot of the accused, one by the police when the accusedwas at the police station—the photograph of this is P 54; the Courtordered the other impression to be taken and the photographs of this areP 32 and P 33.
The photograph P 31 ( shows certain marks on the ball of the foot andon the heel which it is said are scars, and it is sought to produce for com-parison the photographs of the impressions taken of the foot of the firstaccused. The question is whether these are admissible in evidence.Two questions arise, firstly whether evidence can be led of the impressionstaken, and secondly whether, if these photographs are admissible, in whatmanner and to what extent they can be utilized as evidence.
The impression, of which P 32 and P 33 are photographs, was taken onthe order of Court despite the objection of the first accused. It ufoscontended by Crown Counsel that the Court had the power to order theimpression to be taken, and I was referred to the case of The King v.Suppiah In that case the Court ordered the accused to give an impres-sion of his fingerprints for comparison with finger impressions found on35/ 291 (1930) 31 N. L. R. 435.
DRIEBERG J.—Rex v. Carupiyah.
the broken glass panes of a building he was charged with having brokeninto. The decision is in itself of little help in this case, for it proceeded onthe construction of section 73 of the Evidence Ordinance which enables aCourt to direct any person present in Court to submit impressions of hisfingers. It was held that this provision extended to an accused, and inmy opinion the judgment could have been based on the reason only thatthe provision applied to any person in Court and there was nothing toexclude its application to an accused.
In this case it is said that the first accused has certain scars on the soleof his right foot which can be seen in the impression of it and that tracesof similar scars are to be found in the footprint in the room (P 31a).Section 73 empowers a Court to direct anyone present in Court, and thatincludes an accused, for purposes of comparison to write words or figuresor give fingerprint impressions, but this does not empower a Court todirect an accused to submit for examination and comparison the impres-sion of any other part of his person. Lyall Grant J. in The King v, Suppmh(supra) referred to the case of The King Emperor v. Tun Hlaing whereit was held that the taking of fingerprints was an entirely differentmatter to putting questions to an accused person, and that in giving theprints the accused could not be said to be providing evidence againsthimself “ since what really constituted the evidence, namely, the ridgesof his thumb, are not provided by him any more than the features of hiscountenance I have not had the advantage of seeing the report ofthat case, but I cannot agree with the principle laid down in it.
The Police Magistrate had no power to ask the first accused whetherhe had on the sole of his right foot scars, and on what part of the sole theywere. He could only question him as provided by section 295 of theCriminal Procedure Code, and such a question would not be for the purposeof enabling him to explain any circumstance appearing in the evidenceaganist him, but would be for the express object of obtaining evidenceaganist him, that is, of procuring proof that he had on- the sole of his rightfoot marks which would identify him with the person who left the impres-sion of his foot in the room where Victoria Jesudasen was murdered. Ifthe Magistrate could not obtain this evidence by questioning the accusedregarding the appearance of the sole of his foot, could he obtain it bycompelling the accused to show it for inspection ? In my opinion thePolice Magistrate could not, for I can see no difference in this connectionbetween the Police Magistrate asking the accused, “ Have you got thesescars on the sole of your right foot ? ” and his saying to the accused,4‘ Show me the sole of your right foot so that I may see for myself whetheryou have these scares on it ” ; the latter does not lose the character of aninterrogation for the reason that the answer is not in words but is displayedto the eye. A person in reply to a question whether he has a thumb ofone hand missing may answer it by showing his hand as well as by saying“ Yes ” or “ No I am of opinion that the impression taken in Court mustbe regarded in the light of an answer to a question which the Magistratehad no power to ask the accused, and that it is not admissible inevidence.
i 28 Cr, L. /. 108; 2 Bur. L. J. 270.
DRIEBERG J.—Rex. v. Carupiyah.
Different considerations apply to the impression taken by the police atthe station. This was given by the first accused without objection. Butapart from this, there is nothing so far as I know to prevent a police officerfrom questioning an accused and there are no limitations on the questionswhich might be asked, but if an answer amounts to a confession it cannotbe proved against him. In The King v. Francis Perera the accused were’ charged with forgery, and when they were in custody the police got themto write certain words on paper and it was sought to compare these withthe writings said to be forged. It was held by a Bench of three Judgesthat the writings obtained from the accused, though they suggested aninference of guilt on comparison with the alleged forgery, were not -confessions for the reason that they were not statements; a statementbeing an expression of fact or opinion or the formal embodiment inlanguage of facts or opinions. A confession is an admission of a certainnature made by an accused, and an admission is a statement oral ordocumentary which suggests certain inferences—section 17, EvidenceOrdinance. The principle of this decision applies to foot impressions andI hold that the photograph, P 54, is admissible in evidence.
There remains to be considered the manner in which the photograph ofthe impression of the first accused's foot can be used in evidence. Thesimilarity, if any, between it and P 31a is not a matter on which theopinion of an expert can be received. It does not concern a matter ofscience like the proof of identity by fingerprint impressions, and is there-fore outside the scope of section 45 of the Ordinance. The similarity, ifit exists, is a matter on which the Judge and jury are entitled to formtheir opinion. The position is similar to that of comparison of finger-print impressions in India before sections 45 and 73 were extended toinclude fingerprint impressions. In the case of Rex v. Fakir Mohamed %which was before the inclusion of finger impressions by Act 5 of 1899,it was decided that though the opinion of an expert on the similarity ofthe impressions was not admissible under section 45 it was open to theCourt itself to make such a comparison. It was said that they would beadmissible under section 9 if the similarity of the impressions couldestablish indentity, or under section 11 if their dissimilarity made suchidentity improbable. I have not seen the report of this case, and I quote .from the reference to it in Ameer Ali’s Law of Evidence on page 432(8th edition).
I hold therefore that it is open to the jury to examine the photographof this impression, to compare it with that joi the impression in theroom, and to form their opinion of the sinularify or dissimilarity of theimpressions.u
These questions were argued in the absence of? the jury. I gavemy fiiling at the time, but said I would give my reasons in Writinglater.v
The Registrar will show this to counsel for the prosecution and for the ‘defence, but it must not be shown to anyone else until the conclusion ofthe trial.
* (1906) 9 N. L. R. 122.* (1896) 1 C. W. N. 3$ and 34.
REX v. CARUPIYAH et al