045-NLR-NLR-V-61-M.-M.-BANDAPPUHAMY-Appellant-and-G.-M.-B.-EKANAYAKE-Inspector-of-Police-Re.pdf
SD?2{ETAMBY, J.—Sinna Guru v. Inspector of Police, Karawanella 181
Present: T. S. Fernando, J.
M. M. BANDAPPUTTATVIY, Appellant, and G. M. B. EKANAYAKE,
(Inspector of Police), Respondent
S. C. 232—M. G. Chilaw 16,487
Evidence—-Palm print or finger print—Mode of proving it—Expert—Is proof of hiscompetency necessary ?—Evidence Ordinance, s. 45.
In a case where the prosecution relies on the evidence of the palm print of theaccused as incriminating the accused, evidence must be expressly adduced toshow that the finger print slip alleged to have been taken in Court for examinationby an expert did in fact contain the palm prints of the accused.
Quaere, whether failure to prove the competency of a witness called as anexpert renders his evidence irrelevant.
1 (1935) I Ceylon. Law Journal 29.
188
T. S. FERNAISTDO, J.—Bandappuhamy v. Bkanayahe
-^^-PPEAL from a judgment of tlie Magistrate's Court, Chflaw.
E. A. G. de Silva, for the accused-appellant.
Ananda G. de Silva, Grown Counsel, for the Attorney-GeneraL
Gur, adv. vvM'~
June 20, 1957. T. S. Eebna^do, J.—
The negligence of the prosecution in the Magistrate’s Court is res-ponsible for the decision I have reached in this case that the convictionof the appellant must be set aside.
The appellant had been charged with the commission on 1st June1956 of the offences of housebreaking and of theft of articles, some ofwhich had been in a wardrobe in the burgled house. The wardrobeitself had been forced open and the contents of one of its drawers rifledby the thief or thieves. The only evidence which, according to theMagistrate, incriminated the appellant was the finding of a palm printon the exposed side of one of the doors of the wardrobe. The Magistratewas satisfied that this palm print had been identified as the left palmprint of the appellant by comparison of it with the palm prints of theappellant alleged to have been taken in court. I shall consider presentlythe nature of the evidence led to establish the identification. The ap-pellant in giving evidence on his own behalf attempted to give anexplanation of the circumstances in which his palm print could havebeen left behind on the wardrobe door, but this explanation has beenrejected by the learned Magistrate. If it has been proved that it was-the appellant’s palm print that was left on the wardrobe door, it followsthat the appellant has failed to account for the innocent presence thereof his palm print.
Learned counsel for the appellant has contended that no proof was-adduced in the Magistrate’s Court that the finger print slip (markedP6 in this case) with which the finger print on the wardrobe was comparedby the witness Velio did in fact contain the finger prints anr* palm printsof the appellant. Sergeant Daniel of the Chilaw Police who gave evi-dence before the Magistrate stated that on the orders of the Courthe obtained the finger and palm prints of the appellant in open court andthat the prints so taken were sent through the Court to the Registrar ofFinger Prints. He did not purport to identify the finger print slip sotaken or to refer to it by any identifying number. He did not even sayon which date he took the appellant’s finger prints. In this state offacts there was no proof before the Magistrate’s Court that the documentwhich Velin used for purposes of comparison with photographs of theprints left on the wardrobe was the document referred to by SergeantDaniels as that containing prints of the appellant. The case was there-fore left without proof as to the identity of the person whose finger andpalm prints were to be found on tbe document which was used by Velinfor purposes of comparison. The objection taken by counsel is, no doubt ?
Jayeuturiya v. WamaJculaauriya183
technical, but going as it does to the root of the wlv–.o case against theappellant cannot be brushed aside. Counsel’s contention that the guiltof his client has therefore not been established is in my opinion entitledto prevail.
Although the point referred to above is sufficient to dispose of the case,it is noteworthy that the lapses of the prosecution did not end in this casewith its failure to prove the finger print slip alleged to have been takenin court. Learned counsel has raised a farther point that there is noevidence that the witness Velin who has expressed an opinion upon acomparison of finger and palm prints is an expert. He contends thatVelin’s evidence would have become relevant only if evidence had beenadduced to show that he was an expert as contemplated in section 45of the Evidence Ordinance. Velin described himself as an Assistant tothe Registrar of Finger Prints. He did not say he had any expert know-ledge of the science of finger print comparison nor was a single questionput to him in an attempt to show that he was otherwise competent toexpress an opinion on identification by a comparison of finger prints.A question asked of this witness when under cross-examination appearsto suggest that the person putting the question assumed the witnessto be an expert on the particular science, and learned Crown Counselpoints out to me that in the report (P8) of this witness produced in courtthe legend " Finger Print Expert ” has been appended beneath his name.In the view I have taken of the first point raised by counsel for the appel-lant it becomes unnecessary for me to express any opinion on the meritsof this further point; but I should add that by a failure to prove thecompetency of a person a party calls into the witness box as an expert aserious and very real risk is being run of the evidence of such a personbeing ruled out as irrelevant.
As indicated above, the conviction and sentence must be set asideand the appellant acquitted.
Appeal allowed.
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