015-NLR-NLR-V-53-KRISHNAPILLAI-Appellant-and-KONCHIPPALI-Village-Headman-Respondent.pdf
Krishnapillai v. Konchippali
96
1961Present :Gratlaen J.
KRISHNAPILLAI, Appellant, and KONCHIPPALI (Village Headman),
Respondent.
_ S. C. 1314—M. G. Batticaloa, 10,619
Criminal procedure—Inspection of scene of offence-^Statements of witnesses—Re-■ quirements of oath and cross-examination.
Where there ia an inspection by Court of the locus in quo, statements madeat the spot by . witnesses shonld be made on oath or affirmation and anopportunity should be given to the parties to cross-examine the witnesses12 – N. L. R. Vol. – Uii
GRATIAEN J.—Krishnapillai t>. Konchippali
./^.PPEAL from a judgment of the Magistrate’s Court, Batticaloa.
Wanigatunga, with M. D. H. Jayawardene and D. R. P. Goonetilleke,for the accused appellant.
B. T. Premaratne, Crown Counsel, for the Attorney-General.
Cur. adv. vult_
March 13, 1951. Gratiaen J.—
In my opinion the conviction in this case cannot stand. A vitalquestion which arose for the learned Magistrate's decision was whetherthe accused could have been identified by the witnesses for the pro-secution on the night when the offence is alleged to have be'en committed.In these circumstances, at the close of the case for the defence, the learnedMagistrate made the following record: —
As there seems to be some disagreement with regard to thequestion of whether two lights alleged to have been placed in thefront compounds of the accused’s house and his mother-in-law’shouse could have shed their light at the spot where the stabbing isalleged to have taken place it is the wish of parties that I shouldinspect this spot and test the light for myself before I give judgment.I am therefore, fixing an inspection at 6 p.m. at the spot tomorrow.Thereafter, I shall give my judgment on Friday morning.
The inspection of the scene took place as arranged, and it seems clearfrom the learned Magistrate’s judgment that on this occasion certainwitnesses were invited, admittedly in the presence of the parties andwithout objection, to reconstruct the scene of the alleged offence andto point out various relevant positions to the Magistrate. The state-ments made at the spot by these witnesses were not made on oath oraffirmation and no opportunity of cross-examining them was offeredto the defence. In the result, the decision of the learned Magistratewas to some extent influenced by the unsworn statements of the witnessesconcerned. This is yet another illustration of a well-intentionedMagisterial inspection of the locus in quo which was unfortunatelyattended by substantial irregularities. (Barnes v. Pinto 1 and AronSingho v. _Buultjens 2T) In the circumstances I quash'the conviction and
order that the case be retried before another Magistrate.
%
C»
Sent back for re-trial.
1 (1938) 40 N. L. R. 125.
(1947) 48 N. L. It. 285.