CANEKE.KATNVE J.—The' King v. Onanapiragasam.
1948Present: Canekeratne and Nagalingam JJ.THE KING w. GNANAPIRAGASAMS. O. 44—D. C. Grim. Jaffna, 4,341
Criminal procedure—Inspection of scene of offence—Parties noticed—Rightof judge to inspect.
It is not improper for a. judge trying a criminal case to inspect thescene of the offence provided he notifies the parties and allows themto attend him at the view.
Appeal from a judgment of the District Judge, Jaffna.
M.M. Kumarakulasingham, with J. PatTiirana, for accused, appellant.
C. Alles, Crown Counsel, for the Attorney-General.
Cur. adv. vult^
September 24, 1948. Canekebatks J.—
The 2nd accused appeals from a judgment convicting him of causinggrievous hurt to Police Constable Kumarasamy and simple hurt toPolice Constable Kanagalingam, while they were in the discharge oftheir duty on August 14, 1946. The two Constables had stopped a>rickshawman plying his vehicle, for hire, unlighted along a publicstreet about 7.30 p.m. when the appellant went up to them and
1*J. If. A 83745 (11/48)
CAJSTEICERATNE J.—The King v. Gnanapiragaaam.
requested them to release the man. On being asked “ to mind his ownbusiness” he slapped Kanagalingam and when seized he shouted thathe was being assaulted by the police ; three or four men then turned<up and the Constables were assaulted.
The trial commenced on January 7, 1948, three witnesses, one wasKanagalingam, gave evidence on this day. It was continued on.January 9 and on that day Kumarasamy and five others gave evidence.At the close of that day’s proceedings there is a note to this effeet
Further trial January 12, 1948. Inspection today at 7.30 p.m. ”The inspection was held by the learned Judge in the presence of Counselfor both sides. On January 12, Counselfor the 1st and 2nd accused calledthe latter and some other witnesses and after Counsel had finished their.addresses the learned Judge delivered judgment. He said that theopportunities for seeing the 1st, 3rd and 4th accused clearly and identi-fying them were little and that he had grave doubts of their correctidentity and acquitted them. He gave cogent reasons for convictingthe appellant. His Counsel contends that the conviction is badinasmuch as the Judge inspected the place, which according to himhe was not entitled to do ; and secondly that the Judge was not impressedwith the evidence given by the prosecution witnesses at the time hefixed the inspection and should have given the benefit of the doubtto the appellant. He referred in this connection to the absence of anyprovision in the Criminal Procedure Code (Cap. 16 of the CeylonLegislative Enactments) similar to that relating to a trial by Judge and■Jury (section 238). Thus if no statute had told the Judge how toperform his duty in some novel or unusual situation he should feel helpless.
Evidence includes all modes, other than argument, by which a partymay lay before the tribunal that which will produce persuasion. Thereare three sources of belief, one is the testimony of a witness who had seena thing, e.g., a two-edged knife being used by the accused on the personinjured : the second is the testimony of circumstance that a flesh woundat edges had narrow incisions—the witness who deposes to this mustfirst appear to be so qualified that his assertion is worth receiving ; thethird is the production of the knife and the inspection of it by the tribunal.This source differs from the other two in omitting any step of self consciousinference or reasoning, and in proceeding by direct self perception. It isusually called real evidence. In the first case demonstration is foundedupon the sight of others, in the last upon the sight of the tribunal The"tribunal in the first case is confined to hearing what other men. thinkthey have seen, in the last ease it sees for itself the thing. Where the-existence of the external quality or condition of a material object is inissue or is relevant to the issue, the inspection of the thing itself, producedbefore the tribunal is always proper, provided no specific reason of policyor privilege bears decidedly to the contrary. It does not appear thatthere is any distinction to be taken as regards the kind of fact to bepresented for inspection. Anything cognizable by the senses of thetribunal may thus be offered, e.g., the inspection of a maimed person on atrial for mayhem, tools, weapons, and other objects connected with a•crime may be proved by production, as well as the clothing of thrinjured person. In the present case some things were produced, e.g., P'
CAXKKERAT2STE J.—The King v. Onanapiragasam.
the tunic of one Constable, P2 the tunic of the other, P3 the buttons andP5 the slouch hat of one of them. Nor is any distinction to be taken asregards the mode of presentation by the party : nor is any distinction tobe taken as to the mode of inspection by the tribunal. It may employits senses directly, or it may use some suitable mechanical aid, such as amicroscope or a magnifying glass. It may merely look on, or it maytake an active share in the process of experimentation. Nor is there anydistinction as to the place of inspection : the thing may be brought intoCourt, or the tribunal may go to the place where the thing is,—thuswhere the object is immovable or inconvenient to remove, the naturalproceeding is for the tribunal to go to the object in its place and thereobserve it. A Judge can see a picture of the place. Why should not thetrier see the place itself ? Inspection may be forbidden in the same wayas the reception of other evidence is barred, e.g., it may be irrelevant;sometimes a Judge in the exercise of a discretion may refuse it becauseunfair prejudice may be caused to an accused person, e.g., the mutilatedmembers of the victim of the crime1. A judge could act on the testimonyof his own sense—Blackstone (1768) III, 331. The provision in the Code(section 238) is derived from English law. In the earliest Englishpractice, the granting of a view seems to have become almost demandableas of course : (those who are curious may see 1 Burr. 252). It was thusnecessary to make specific provision giving the trial Court its propercontrol. The theory of jury trials is that all information about the casemust be furnished to the jury in open Court, where the Judge can separatethe legal from the illegal evidence, and where the parties can explain orrebut. But if jurors were permitted to investigate out of Court, therewould be great danger of their getting an erroneous or one sided view ofthe case, which the party prejudiced thereby would have no opportunityto correct or explain. A view not had under the discretion of theCourt is therefore improper.
Whenever facts are tried by a Judge sitting alone, the Judge’s use ofreal evidence becomes an equally appropriate mode of ascertaining facts,and is a corollary of his general power to obtain evidence. The Judge,therefore, may equally well proceed from the Court room to the place inissue, whenever such a proceeding would be a suitable one, to take a view,provided only that he observes the usual rule of fairness for a jury view,viz., that he notify the parties and allow them to attend him at the view.
The second contention may well be examined from a practical commonsense point of view. An inspection is undertaken in order to enable theJudge to better understand the testimony of the witnesses respecting thesame and thereby the more intelligently to apply the testimony to theissues on trial before him. What is the appropriate stage for doing this,at the beginning of the trial, at the end of it, at the end of the prosecutioncase or at any time ? There is very little advantage in the firstmethod ; a Judge would not know whether such a change ofconditions has occurred that a view of the object in its present
1 Wigmore on Evidence—from section 1150 to section 1154.
I am indebted to Mr. Advocate V. A. Kandiah for getting me a copy•f this volume.
CA29EKERATNT2 J.—The King v. Onanapiragaaam.
state would be. misleading. Stopping the trial and proceedingfrom the Court room to the place seems too theatrical and maynot appeal to a Judge who is thought to he sober. In the presentease it was not practical to fix the inspection for January 7, as one of the .principal witnesses had not yet testified. There are obvious disadvant-ages in the second method and it. should not ordinarily be adoptedexcept on the application of the defence. The question, could he havefelt a doubt may be tested in two ways. Firstly, in a case tried by aJudge and Jury the opportunity to decide finally upon the evidentialmaterial offered does not go to the jury as a matter of course ; the prosecu-tion must first with its evidence pass the gauntlet of the Judge. TheJudge requires that the mass of evidence put in be at least enough to beworth considering by the jury, A Judge trying a case without a jurywould if he is properly doing his duty guide himself in the same way—ifthere is a sufficiency of evidence then there is a prima facie case to answer.Secondly, the two Constables were sent out from the Station on patrolduty and were to patrol the streets of beat No. 7. It is not denied thatthese Constables were assaulted by some person or persons at or near theplace specified. Proper seeing is a skill which needs to be learned likeplaying the piano or playing good golf. It is unlikely that they wouldbe sent on patrol duty in the night unless they were proficient to someextent. Constables who go on patrol duty are likely to be more observantof something that attracts their attention. In the first complaint one ofthe Constables had mentioned that the man “ who interfered with theirbusiness with the rickshaw puller ” was a slim tall man— a descriptionwhich, according to the Judge, fits the appellant: he was also identifiedat the identification parade.
Opposing pieces of evidence may leave doubt. Doubt means a pullingof the mind in two directions, that is, a state of discord or conflict due tothe action of two incompatible and antagonistic thought tendencies. Asagainst the evidence given by these witnesses, the only circumstance atthis time before the Judge was the suggestion that the light from theelectric road lamp was not sufficiently strong for an identification. Canany one reasonably say that this was sufficient to create a rationaldoubt at this time in the mind of the Judge ? The more natural explana-tion for what the Judge did is that he had formed no view of the case atthe time, the process of judging was in a suspended state : as the impulseto inquire was not satisfied he fixed the inspection. This is borne out bythe note of the Judge “ I wanted to see whether the light from the distantlamp lighted the spot sufficiently to enable the prosecution witnesses tosee clearly to identify the accused ”. The learned Judge has been hearingcases for a considerable number of years. It is hardly likely that onJanuary 9, he lost sight momentarily of the cardinal rule relating todoubt.
The appeal is dismissed.
Naoauhtgam J.—I agree.
THE KING v. GNANAPIRAGASAM