Sirimane, J.—Peter Singho v. The Republic of Sri Lanka
Present: Sirimane J., Malcolm Perera J. and Weeraratne J.
W. M. PETER SINGHO and another, Appellants and Republic
of Sri Lanka
S. C. 106—107/74—H. C. Galle—73/74
Criminal Procedure—Inspection of the scene of the crime—failure torecall the chief prosecution witness who was present at the inspec-tion to give evidence—prejudice to the accused.
Held : Where an inspection is held at the scene of the crime andwitnesses are called to point out various spots, they should berecalled in Court and their evidence taken under oath or affirma-tion as to what they pointed out at the scene, so that it would formlegally admissible evidence UDon which a Jury can base its verdict.
A PPEAL against a conviction at a trial before the HighCourt, Galle.
E. R. S. R. Coomaraswamy With C. Chakradaran and E. R. S.R. Coomaraswamy (Jnr.) for the accused-appellants.
R. Gunatilleke Senior State Counsel for the Attorney-General.June 9th, 1975. Sirimane, J.—
We have considered a preliminary matter argued by learnedCounsel for the appellants namely, the question as regards-whether there has been material prejudice caused to the
. 34Sirimane, J.—Peter Singho v. The Republic of Sri Tanka
accused by sufficient evidence not being given in Court in res-pect of what transpired on a visit to the scene by the Judge andthe Jury. From the notes of the inspection produced by theRegistrar during the course of the trial it appears that the chiefprosecution witness Upasepa who had concluded his evidenceat the time of the inspection was questioned and requested topoint out various spots and distances at the scene. Some of thesematters were of vital importance such as the place where thePetromax lamp was and the distance to which it shed its light;the place from which the accused fired the shot and very manyother material matters. Some of the Jurors also put questions tothis witness Upasena at the scene and he answered them andpointed out various spots. In view of the fact that Upasena wasthe main witness for the prosecution the matters that took placeat the inspection appear to have been both an examination anddemonstration by this witness op very material points. It wastherefore essential that this witness should have been recalledand evidence elicited under oath or affirmation as to the pointshe showed at the scene of offence and thereby give an oppor-tunity to the defence to cross-examine him on those matters.By not calling Upasena and taking his evidence on oath, mate-rial questions which transpired at the inspection were left tothe Jury on unsworn statements and demonstrations given byUpasena.
It has been laid down in decisions of the Supreme Court thatwhere an inspection is held and witnesses are called to point outvarious spots they should be recalled in Court and their evidencetaken under oath or affirmation as to what they pointed out atthe scene, so that it would form legally admissible evidenceupon which a Jury can base its verdict. As stated earlier, in thepresent case a large number of matters which were very materialhave been spoken to and demonstrated by the main witnessUpasena without his subsequently having spoken to them underoath or affirmation. These cannot be regarded as mere technicali-ties as they could well have influenced the Jury in arriving attheir verdict in this case.
Learned Counsel for the State conceded that it was irregularfor Upasena not to have been called in Court and examined onwhat he did at the inspection but he submitted that no materialprejudice had been caused.
In view of what we have already stated we are of the viewthat such important matters like the means of identification andthe place from which the assailant fired pointed out by Upasena,together with very many other matters which in our view are
Sirimane, J.—A tula Rainayake v. Jayasiughe
quite material would have caused prejudice to the appellants*For these reasons we quash the conviction and sentence andsend the case back for retrial on the same charge.
Malcolm Perera, J.—I agree.WeeraratnEj J.—I agree.
Case sent back -for retrial.
W. M. PETER SINGHO and another, Appellants, and Republic of Sri Lanka