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Present: Lyall Grant J.
KING v. SUPPIAH.37—D. C. (Grim.) Colombo, 9,342.
Finger impressions—Power of Court to compel an accused lo give- them—Evidence Ordinance, s. 73.
A Court has power under section 73 of the Evidence Ordinanceto compel an accused to give his finger impressions.
^ PPEAL from a conviction by the District Judge of Colombo.
Krishna Das, for appellant.
Crosette Thambiah, C.C., for the Crown.
May 28, 1930. Lyall Grant J.—
The accused in this case was charged in. the Police Court ofColombo with having (1) committed housebreaking by night byentering into a petrol depot with intent to commit theft,' and (2)with having, in a building used for the custody of property, viz.,a petrol depot, committed theft of Rs. 37.89 in cash, three piecesof chamois leather, four Champion plugs, and motor tail light bulbs.
He was committed to the District Court of Colombo and wastried and convicted on both of these charges and sentenced to ninemonths’ rigorous imprisonment on each count, the sentences to runconcurrently.
The principal ground of appeal is that the finger prints of theaccused were taken without his consent and at the direction of thePolice Magistrate and were improperly admitted and used asevidence against him, and the appellant further avers that theprosecution evidence is meagre and inconclusive.
The evidence shows that on the morning of April 15 a window ofthe. petrol store was found to be broken. and one of the doorsopened, the table drawer had been forced open and some showcases were also open and some articles were missing and cash to thevalue of Rs. 37.89.
( 436 .)
The Btore appears to have been opened by a pane of glass in asliding window being broken, a hand inserted, and idle windowopened from the inside.
The pieces of broken glass were picked up by the police constablewho was summoned, and upon them and on the window shutterwere found finger prints.
These finger prints were sent by the police to the registrar offinger prints. The registrar of finger prints has given evidence andstates that he first of all compared the finger impressions which hefound on the glass with the impressions of the fingers of the accusedtaken by the police afterwards when the accused was produced inthe Police Court.
The Police Magistrate ordered the accused to give an impressionof his finger prints.
The finger print expert took the impression in Court and comparedthem with the original impressions on the glass. As a result of hiscomparison he found thait the impressions taken in Court wereidentical with those on the glass. He also took an impression inCourt of the palms of the accused and found them to be identicalwith the impressions found on the* shutter.
The finger prints on the shutter had been found by the Inspectorof Police at the store and were produced in Court.
On this evidence and on some evidence that the accused, who was .a dismissed employee of the firm, had been seen in the vicinity onthe night in question, he was convicted.
It was argued on appeal that th.e finger prints of the accused hadbeen taken by the Police Magistrate without authority and wereimproperly admitted as evidence by the District Judge.
Section 73 of the Evidence Ordinance empowers the Court tocompare any signature, writing, or seal admitted or proved to thesatisfaction of the Court to have been written by a certain personto be compared with the signature, writing, or seal which is to beproved in order to ascertain whether that signature, writing, or sealis that, of the person by whom it purports to have been written ormade.
The section proceeds : “ The Court may direct any person presentin Court to write any words or figures for the purpose of enablingthe Court to compare the- words or figures so written with any wordsor figures alleged to have been written by such person ….and concludes with the words “ this section applies also> with anynecessary modifications, to finger impressions. ”
It seems to me clear that this section empowers the Magistrateto direct the accused who was present in Court to submit his fingerimpressions.
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It was argued tlfat no section of the Criminal Procedure Codeentitles the Court to compel an accused person to give evidenceagainst himself. The only section of the Criminal Procedure Codewhich allows an Recused person to be physically examined issection 149 (6)—a section which does not apply to the present case.■Section 295 empowers the Police Magistrate to question theaccused but does not compel the accused to answer.
I agree that these sections are irrelevant for the purposes of thepresent case, which depends entirely on the construction to be put.on section 78 of the Evidence Ordinance.
This is not a question of a confession or statement by theaccused; it is one of identification.
To my mind the section definitely empowers the Court to compelan accused person to give his finger impressions for the purpose ofsuch identification.
I have been referred to the case of King Emperor v. Tun Hiding,1where the Full Bench of the Burma High Court took this view.
It was there held that the taking of finger prints is an entirelydifferent matter to putting questions to an accused person.
One of the Judges in that case remarked that “ the Court wasnot in effect compelling him to provide evidence against himself,since what really constituted the evidence, viz., the ridges of histhumb, are not provided by him any more than the features of hiscountenance.”
In another case before the Burma High Court (Nga Tun 2) it washeld that the words " any persor. present in Court ” includes anaccused person.
Similar reasoning was applied by this Court in Rex v. FrancisPerera, 3 a decision of the Full Bench. There the question waswhether specimens of handwriting submitted by the accusedamounted to a confession within the meaning of section 26 of theEvidence Ordinances
In that case Middleton J. said : “ It seems to me that- the writing■ of these words and letter was merely the creation of facts, whichstanding alone were- of no probative value, but which, when coupledor compared with some other facts in the case, might suggest aninference one way" or the other and until that comparison orconjunction was made no inference arose. ” And Lascelles A.C.J.said:“ By a statement,.! understand some expression of a fact
or opinion by means of words, writing or otherwise. Here thevalue of the papers produced consisted not in their meaning, not in theexpression of any fact or idea but solely in certain physicalcharacteristics.”
» Ban. 759, 2 Bur. L. J. 27.2 28 C. R. L. J. 10S; 2 Bur. L. J. 270.
•» 9 N. L. R. 122.
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I think that precisely the same reasoning applies to fingerimpressions. They are not in themselves statements or evidencehut are facts which may become the basis of evidence.
In the present case the evidence given by the expert, whichincludes his report, is very strong on the question of the identity ofthe finger impressions of the accused and the finger impressionsfound at the scene of .the offence.
This evidence coupled with the other evidence in the case appears-to me to be conclusive of the guilt of the accused.