SINGHO APPU, Appellant and THE KING, Respondent

014-NLR-NLR-V-46-SINGHO-APPU-Appellant-and-THE-KING-Respondent.pdf


HOWARD C.J.—Singho Appu and The King.
49
3944Present: Howard C.J. and Jayetileke J.
SINGHO APPU, Appellant, and THE KING, Respondent.
50—D. C. (Grim.), Colombo, 606.
Evidence—Foot-print—Charge of housebreaking and theft—Foot-print foundon a table, the only evidence—Inference of guilt—Evidence Ordinance,t. 45.
Where, on an indictment for housebreaking and theft, the onlyevidence against the accused was that of a foot-print which was foundon a table at the scene of the offence and which was identified as thatof the accused by an expert who gave adequate reasons for his opinion—
Held, that the Court could convict the accused on the evidence of thefoot-print though it was the sole ground of identification-
PPEAL from a conviction by the District Judge of Colombo.
L. A. Rajapakse, K.C. (with him S. W. Jayasurtya), for the accused,appellant.—The appellant has been convicted of housebreaking and theft.The conviction is based solely on the opinion of a finger-print expertthat a foot-print found at the scene of the offence is that of the accused.Finger impressions only, and not foot impressions, are mentioned insection 45 of the Evidence Ordinance. The evidentiary value of foot-printsis of a doubtful nature and not as high as that of finger-prints, and aCourt should not convict on the evidence of foot-prints alone—Doole v.Charles *; R. v. Matambo -2; R. v. Mlanto 3; Vol. 52 S. A. L. Journal,p. 359.
A. C. Alles, C.C., for the Crown, respondent.—The evidence of thefoot-print in- this case is very clear and was given by an expert of greatexperience. Knowledge regarding foot impressions has today reachedthe exactness and status of a science. Further, the words “ scienceand “ art ” in section 45 of the Evidence Ordinance are to be construedwidely. The conviction- in this case is right—Wilder and Wentworthon Personal Identification (1918. ed.) p. 26; Wills on CircumstantialEvidence (7th ed.) p. 230; Sidik Sumar v. Emperor *; In re MylaswamiGoundan ».
Cur. adv. vult.
January 16, 1945. Howard C.J.—
This is an appeal from a decision by the District Court of Colombo■convicting the appellant of (a) housebreaking under section 443 of, thePenal Code and (b) theft of a clock and other articles under section 367of the Code. The only evidence against the appellant was that of afoot-print found on a table. It is contended by Counsel for the appellantthat the latter could not be convicted on this evidence alone. On the
1 (1928) 6 C. L. W. 79.3 S. A. L. R. (1935) E. D. L., April 11.
* S. A. L. R. (1935) O. P. D. 143.1 (1941) 43 Cr. L. J. 308 at 309.
6 (1937) 39 Cr. L. J. X49.
3—xlvi.
60HOWARD C.J.—Singho Appu and The King.
night of January 21, 1942, a burglary took place at 46, Horton place-In the morning various articles were found, missing. On the same morningan Inspector of the Criminal Investigation Department visited thehouse in question and found a decipherable foot-print- on a table.This foot-print on the same morning was photographed bythe C. I. D. photographer. On September 15,1943, the appellant
was arrested by the Bambalapitiya Police and five foot-printswere taken with his consent. On September 16, 1943, the photographof the foot-print taken on January 22, 1942, – at 46, Horton place, wascompared by Inspector Wijemanne, the Finger-print Registrar, with thefoot-print of the appellant. Enlarged photographs had been made ofboth foot-prints. The Inspector found 37 sequent points of similarityand was of opinion that the two prints are of one and the same person.In giving evidence the Inspector stated that before he compared thefoot-print of the appellant with the foot-prints on the scene, he comparedover 700 other foot-prints. None of them tallied. He also stated that,apart from the 37 points of similarity, the pattern, formation and shapeof the foot-print found on the scene are similar to the appellant’s foot-print. Mr. Wijemanne also stated that he had received special trainingat Scotland Yard and had had considerable experience with regard to finger-prints as well as foot-prints. In both identifications he adopted ridgedetails. The appellant did not call any evidence.
Counsel for the appellant placed considerable reliance on the decisionof I/vall Grant J., in Doole (S. I. Police) v. Charles '. The learned Judgein that case held that section 45 of the Evidence Ordinance does not-entitle a Court to convict a person of theft merely on the opinion of afinger-print expert that a foot-print found at- the place where an offencehas been committed is that of the accused. In coming to this conclusionLyall Grant J. states that the Magistrate does not say in his judgmentthat he is satisfied from a personal comparison of the foot prints that theone on the car is that of the accused but relies entirely on the opiniongiven by the expert. I am of opinion that- the case of Doole v. Charlesdoes not have the far reaching effect contended for by the appellant'sCounsel and is not an authority so far as the present case is concerned.Mr. Wijemanne is not only a finger-print expert, but he has also made aspecial study of foot-prints. The learned Judge has also relied notmerely on the opinion of Mr. Wijemanne, but also formed his own opinionfrom 'a comparison of the two photographs. He states that in view of thepoints of similarity there can be no doubt- about the identification whichis absolute and positive. The evidence of Mr. Wijemanne concludesthe matter, particularly as the appellant has offered no explanation forhis .foot-print being found on the table.
Mr. Rajapakse has also invited our attention to two South Africancases, Hex v. Steven Mlanto 2 and Rex v. Matambo 3. In both of thesecases the appeal had been allowed because the apellant bad been con-victed on the evidence of foot-prints alone. But in both cases thisevidence was neither conclusive nor satisfactory.On the other hand
the evidence of the foot-prints in this case is of a very different character.
> 6 C. L. W. 79.
* B D. L. 11.4.1935—S. A. Law Journal, Vol. 52 (1935) p. 359.
3 S. A. Law Rep. D. F. S. Prov. Div. {1935) p. 143.
HOWARD C.J.—Sing ho Appu and The King.
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At page 230 of the 7th Edition of Wills on Circumstantial Evidence areference is made to the evidentiary value of foot-prints in the followingterms:
“ The impressions of shoes, or of shoe-nails, or of other articles ofapparel, or of patches, abrasions, or other peculiarities therein, discoveredin the soil or clay, or snow, at or near the scene of crime, recently afterits commission, frequently lead to the identification and convictionof the guilty parties (Menochius, De Praesumptionibus, Lib v. praes 31;
Mascardus, De Probationibus Concl. DCCCXXXI; Mittermaier,Traite de la Preuve, c. 57). The presumption founded on these cir-cumstances has been appealed to by mankind in all. ages and in inquiriesof every description, and is so obviously the dictate of reason, that itwould be superfluous to dwell upon its importance or upon the groundsof its acceptance
There is also a note making a reference to a number of Indian decisionsto the effect that evidence of tracks and foot prints should always be •accurate and unless there is independent evidence to corroborate, it cannotlead to an inference of guilt. The comparison made in the present easewas undoubtedly accurate. The foot-print on the table was photographedon the morning after the burglary had taken place. There is no sugges-tion that the testimony of the foot-print was fabricated with the inten-tion of diverting suspicion from the real offender or that the evidenceof the Police Officers was not thoroughly reliable and trustworthy. I canfind no Indian case to formulate the proposition that in such circumstancesthe Court could not convict. In Sidik Sumar v.. Emperor it was arguedin the Sind Chief Court that statements as to facts made by personsskilled in identifying foot-prints should be held to be excluded by section45 of the Indian Evidence Act. The case against the accused did notrest on the sole testimony of foot-prints. But Weston J., at page 309,dealt with the argument addressed to him with regard to such marksin the following manner: —
“ Evidence that there were foot-prints at or near a scene of offenceor that these foot-prints came from a particular place or led to aparticular place, is relevant evidence under s. 7 Evi. Act., and there isno reason why statements as to these facts made by persons skilled inidentifying foot prints, as undoubtedly many trackers in Sind are soskilled, should be held to be excluded by s. 45, Evi. Act. The learned .Judge’s argument is that as this section was amended in 1899 to includeopinion as to identity of foot impression, evidence as to the identityof an accused person's foot impression or impressions seen by a witnessat the scene of the offence and later in a test is not admissible.We do not think this view is correct. The words ‘ science ’ or ‘ artin s. 45, Evi. Act according to the authorities are to be construed'widely. The amendment relating to finger impressions appears tohave been made to meet particular decisions which had been givenby the Courts, and we do not think that this amendment operates tolimit in any way the wide meanings which should be given to the ex-pressions ‘ science ’ or ‘ art ’. There is no doubt that, particularly
1 43 Cr. L. J. 1942, p. 308.
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HOWABD C.J.—Singho Appu and The King.
in the Province of Sind, there are trackers who, though they may havedifficulty in explaining their methods, have a very high degree of skillin observing, tracking and comparing the foot-prints of persons.Whether a particular tracker called upon to assist, is or i6 not anexpert in this art or science, is of course a matter to be decided by the-Judge or Magistrate, before reliance can be placed upon his evidence.But if it is established to the satisfaction of the Court that the trackeris a person capable of distinguishing and identifying foot-prints, thereis no reason why his evidence should not be given such consideration-as it may deserve
The question of the relevancy of the testimon}' of a witness who-has made a study of the prints made by the human foot was also con-sidered by Burn J. in the case of in re Mylaswami Goundan 1 in the follow-ing passage:—
“ Mr. K. Krishnamurthi for accused No. 2 has contended that theevidence of the expert was inadmissible and referred to s. 45, EvidenceAct. He points out that though provision is made for expert evidenceregarding finger impressions, there is no provision for expert evidence-regarding impression of feet. He also contends that the study of foot-marks is not worthy of the name of science and that therefore theevidence regarding foot-marks cannot be brought under the generaldescription given in s. 45. There is some force in this contention.It is quite clear that the science, if it could be so-called, of foot-printshas not yet progressed very far. There is equally no doubt whatever' (as was observed m Emperor v. Babxdal 2) about the fact that—
‘ Evidence of similarity of the impressions of the feet, shod or un-shod, is admitted by the Courts in India and in Great Britain,and as far as I know in every-other country, though there isno science of such impressions ’.
The fact is that such evidence comes under the head of circumstantialevidence: vide Wills on Circumstantial Evidence, page 285. In a caseof this kind it is not the opinion of the expert that is of any importancebut the facts that the expert has noticed. It is quite clear that aperson who has made a study of the prints made by the human foot isbetter qualified to notice points of similarity or dis-similarity than onewho has made no such study. He is able to lay these points before theCourt and from his evidence the Court draws its own conclusions.That is precisely what has been done in the present case ”.
Here again the – testimony against the accused did not rest solely on theevidence of foot-prints. Applying the principles formulated by the Courtsin these two cases it would appear that the learned Judge in the presentcase was entitled to construe the words ‘ science ’ or 1 art ’ so widelyas to include within its ambit the testimony of a person who had studiedfoot-prints. If he was satisfied that such person was capable of distin-guishing and identifying foot-prints, he was also entitled to rely on his-testimony.
» 39 Cr. L. J. 161.
* A. I. B-, Bombay, 1928, 158.
HOWARD C.J.—Singlin Appu ami Tlic King.63
In Chanan Singh v. Emperor 1 the appellant had been convicted ofrobbery on the evidence of foot-prints and possession of the stolenproperty. It was held that the foot-print evidence was of no valueinasmuch as the comparison was made about two months after theoccurrence when the original tracks were no longer preserved. Similarlyit was held in Pathana and Another v. King Emperor 3 that track evidenceis hardly of any value when the comparison has been made 8 or 9 daysafter the affairs. In the present case the foot-print was examined atonce and preserved by photography.
In Indar Singh v. Emperor * it was held that foot-prints made by shoesand not by bare feet identified as similar to those' of the accused andfound some little distance from the scene of the offence, coupled with thepointing out by the accused of the place where the stolen property isconcealed, is not sufficient evidence to justify his conviction. It hasbeen held that the foot-prints of boots are less valuable than those ofbare feet.
That the evidence of foot-print experts is admissible in the IndianCourts is evident from the judgment of the Court in the King-Emperor v.Biseswar Dey and Othera *. At page 221. it is stated as follows: —
“ The learned Sessions Judge has stated in his letter of referencethat foot-print found close to the pool of blood was according to the foot-print expert the foot-print of the accused Biseswar; but we can findno such statement in the evidence given by the foot-print expert,Inspector Anansa Kumar Chakravarty (P. W. No. 20). He has statedin detail the points of similarity and dis-similarity between the im-pression that- was taken of Biseswar’s footprint and the foot-printfound at the scene of the murder. But he has not. stated that thepoints of similarity preponderate' over those of dis-similarity nor hashe expressed his opinion as an expert that the two foot-prin.ts are ofone and the same person. We are told by the learned Counsel for theCrown that he did give evidence to this effect before the CommittingMagistrate. But this deposition was not put in evidence at thesession trial and cannot be considered by us. In the case of Biseswarwe therefore hold there are no materials on the record to justify oursetting aside the unanimous verdict of the jury ”.
In the present case Mr. Wijemanne has stated his opinion as an expertthat the foot-prints are of one and the same person.
In Ronki v. Emperor5 it was held that track evidence of a flimsynature should not be believed without sufficient corroboration.
It would appear, therefore, that there is no authority for the contentionthat a conviction cannot rest on the evidence of the similarity of foot-prints alone. AVhen such evidence is inconclusive and unsatisfactorythere must no doubt be corroboration. In the present case the comparisonwas made by an expert'of undoubted experience who gave ample and
1 A. I. A. 1933, Lahore, 299.3 .4. I. B. 1921, Lahore, 385.
3 A. I. R. 1914, Lahore 431.* A. I. B., 1923, Calcutta, 217.
s A. I. B. 1915, Lahore, 469.
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JAYETI.LEKE .T.—Kawwaumma and David Sing ho.
adequate reasons lor his opinion that the foot-prints were made by oneand the same person. That evidence was accepted by the learned Judgewho also had the opportunity of examining the photographs and forminghis own conclusions. In these circumstances the conviction can besupported and the appeal must be dismissed.
Affirmed.