078-NLR-NLR-V-62-THE-QUEEN-v.-K.-A.-WIJEHAMY-et-al..pdf
SANSONI, I.—The Queen v. Wijehamy
425
[In thk Court of Criminal Appeal]
Present : Basnayake, C.J. (President), Sansoni, J., and
Sinnetamby, J.
THE QUEEN v. K. A. WIJEHAMY el al.
Appeals 55 and 57 of 1958, with Applications 72, 73, 74 and 76
S. C. 6—M. C. Colombo, 37797 ,
Evidence—Finger prints and palm prints—Mode of proof—Evidence Ordinance, s. 45.
When, in a criminal case, the prosecution relies on the report of a finger printexpert to the effect that the finger prints said to have been found at the scene ofthe offence were those of an accused person, there must be direct evidence thatthe finger prints of the accused were handed to the finger print expert.
Evidence should not be elicited from a finger print expert as to the opinionhe formed from a comparison of photographs of finger prints, when the photo-graphs are not productions in the case- Under section 45 of the EvidenceOrdinance it is for the Court to form an opinion as to the identity of finger andpalm impressions, assisted by the opinion of an expert.
A
IaPPEALS, with applications for leave to appeal, against certainconvictions in* a trial before the Supreme Court.
S. Barr Kumarafculasinghe, with T. W. Rajaratnam, for the 5thaccused-appellant.
V. T. Tham other am, Senior Crown Counsel, for the Attorney-General.
Cur. adv. wit.
July 21, 1958. Sansoni, J.—
Eive accused were indicted in this case on charges of being membersof an unlawful assembly, rioting, house-breaking by night, and robbery.The offences were committed in the early hours of 22nd January 1957.The 1st, 2nd, 3rd and 5th accused who were found guilty on all thecounts of the indictment appealed. The appeals of 1st, 2nd and 3rdaccused were dismissed after hearing, and we reserved judgment inregard to the appeal of the 5th accused.
The case against the 5th accused which the prosecution sought tomake out was based entirely on circumstantial evidence. The circum-stances relied on by the prosecution were—
{a) that he had borrowed car No. CL. 8711 from its owner on the eveningof 21st January 1957 promising to return it at 2 p.m. the next day,
(6) that the car was seen at Weliwita near the scene of the offenceat about the time it was committed,
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SANSONI, J.—The Queen v. Wijehamy
that the 5th accused was stopped and arrested at 2.30 a.m. on22nd January at' Ganagama junction eight miles from Weliwita, as hewas driving from the direction of 1 hat village towards Kotte,
that there were in the car—
two finger prints and four palm prints of the 5th accused,
one finger print and one palm print of the 1st accused.
The finger prints and palm prints do not necessarily connect the 5thaccused with the crime, because it is established that the car was loanedto him and it is natural that the car should contain his finger and palmprints. The presence of the 1st accused’s finger prints also does not byitself connect the 5th accused with the crime, because the owner of thecar who gave evidence for the prosecution stated that the 1st accusedwent out with him in the car for a driving lesson on the morning of 21stJanuary.
At the trial, but not at the Magisterial inquiry, the prosecution sought toproduce evidence of the fact that there was on the ash tray of the car,which was at the rear of the front seat, two finger prints of a mancalled Obias who was one of the persons originally charged and who diedduring the Magisterial inquiry. Obias was identified as one of themembers of the unlawful assembly.
We shall assume that if the finger prints of Obias were in fact provedto have been found on the ash tray in that car, the 5th accused wasrightly convicted in the absence of an explanation by him as to howthese finger prints came to be there. We must now consider whetherthe prosecution did establish by evidence that the finger prints foundon the ash tray were in fact the finger prints of Obias.
The first witness whose evidence has a bearing on this point is P. C.4968 Alagaratnam. He stated that on the 25th of January 1957 on theorders of the Court he took the finger and palm prints of Obias, but hesaid nothing more with regard to these prints. He did not say whathe did with them or whether he gave them to anybody, and if so to whom.What is more, no prints were produced at the trial to be identified byhim as the prints in question.
After this witness concluded his evidence, Counsel appearing for the5th accused pointed out that no finger or palm prints of Obias wereproductions in the case. He objected to the finger print expertgiving evidence in regard to the finger and palm impressions ofObias under these circumstances. In reply to this submission CrownCounsel stated (to quote from the record) : “ I am only seeking to elicitfrom the Registrar of finger prints whether he knows where those printsare ”, and the presiding judge then made the order : “I allow thatevidence ”. It is difficult to understand what Crown Counsel meantby his statement, and what evidence the presiding judge meant to allow.P. S.1910 Alwis, who is a Police photographer, later gave evidence butnowhere has he stated that he photographed any finger and palm prints
SANSONI, J.—The Queen v. Wijehamy
427
of Obias. The only photographs he spoke to were photographs of 19palm prints and finger prints, some of which the finger print expert hasidentified as tallying with the finger and palm prints of the 1st and 5thaccused. Another witness P. S. 93 Alwis gave evidence that he visitedthe scene and had photographs taken by P. S. 1910 Alwis. He identifiedthe 19 photographs taken by the latter as the photographs which hehanded to the Registrar of finger prints. The evidence of these witnesseshas completely failed to establish that Obias’ finger prints were everhanded to the finger print expert. P. C. Alagaratnam in his evidencereferred to Obias, but there were significant omissions in that evidence,and neither P. S. 93 Alwis nor P. S. 1910 Alwis made any reference atall to Obias.
It is therefore surprising to find that the Registrar of finger prints(who is also the finger print expert) has in his report P 52, which wasproduced at the trial, stated that P. S. 93 Alwis handed to him 10 palmprints and 12 finger prints said to have been found by him at the sceneof the offence, and of these '* two sets of palm prints and one set offinger prints were identified as those of late M. Obias Perera. I producethe remaining prints marked P 20 to P 3S This statement in thereport that some of the palm prints and finger prints were those of Obiasis hearsay, in view of the omissions in the evidence upon which we havealready remarked. When the Registrar of finger prints was giving evi-dence the second question put to him by Crown Counsel was a leadingquestion in the following form :—
Q.Of these 22 sets of finger and palm prints there were two sets ofpalm prints and one set of finger prints were (sic) identicalwith those of Obias ?
A. Yes.
Then followed these questions and answers :—
Q.Are you aware where those two finger prints of Obias were ?
A. They were found on an ash tray in a car, the photograph of whichwas handed to me.
Q. You saw the ash tray with the prints on it ?
A. Yes.
Q. You produce the prints of P 20 to P 38 ?
A. Yes.
Questions and answers of this sort which elicited hearsay evidencemust undoubtedly have prejudiced the case of the 5th accused. Thejury would have been misled also into thinking that P 20 to P 38 includedthe finger and palm prints of Obias. In fact it was never proved thatObias’ finger and palm impressions ever reached the finger print expert.
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Fernando v. Mitraeeruz
But this is not all. The photographs of the alleged palm and fingerprints of Obias upon which the finger print expert sought to base hisopinion were neither listed among the documents specified in the indict-ment nor produced at the trial. Evidence should not have been elicitedfrom the .finger print expert as to the opinion he formed from a comparisonof photographs of those prints, when the photographs were not produc-tions in the case. Under section 45 of the Evidence Ordinance it isfor the Court to form an opinion as to the identity of finger and palmimpressions, assisted by the opinion of an expert. The non-productionin evidence of the impressions or photographs of them rendered theopinion of the expert irrelevant.
In view of the omissions in the proof adduced by the prosecution towhich we have drawn attention, the jury should have been directedthat there was no evidence upon which they could find that the fingerprints of Obias were found on the ash tray. In the result, the verdictof the jury in regard to the 5th accused cannot be supported havingregard to the evidence.
The appeal of the 5th accused is allowed, his conviction is set aside andhe is acquitted.
Appeal of the 5th accused allowed.