Present: Lyall Grant J. 1930

KING v. SUPPIAH.

37-D. C. (Crim.) Colombo, 9,342.

Finger impressions-Power of Court to compel an accused to give them- Evidence Ordinance, s. 73.

A Court has power under section 73 of the Evidence Ordinance to compel an accused to give his finger impressions.

APPEAL from a conviction by the District Judge of Colombo.

Krishna Das, for appellant.

Crosette Thambiah, C.C., for the Crown.

May 28, 1930. LYALL GRANT J.-

The accused in this case was charged in the Police Court of Colombo with having (1) committed housebreaking by night by entering into a petrol depot with intent to commit theft, and (2) with having, in a building used for the custody of property, viz., a petrol depot, committed theft of Rs. 37.89 in cash, three pieces of chamois leather, four Champion plugs, and motor tail light bulbs.

He was committed to the District Court of Colombo and was tried and convicted on both of these charges and sentenced to nine months' rigorous imprisonment on each count, the sentences to run concurrently.

The principal ground of appeal is that the finger prints of the accused were taken without his consent and at the direction of the Police Magistrate and were improperly admitted and used as evidence against him, and the appellant further avers that the prosecution evidence is meagre and inconclusive.

The evidence shows that on the morning of April 15 a window of the petrol store was found to be broken and one of the doors opened, the table drawer had been forced open and some showcases were also open and some articles were missing and cash to the value of Rs. 37.89.

The store appears to have been opened by a pane of glass in a sliding window being broken, a hand inserted, and the window opened from the inside.

The pieces of broken glass were picked up by the police constable who was summoned, and upon them and on the window shutter were found finger prints.

These finger prints were sent by the police to the registrar of finger prints. The registrar of finger prints has given evidence and states that he first of all compared the finger impressions which he found on the glass with the impressions of the fingers of the accused taken by the police afterwards when the accused was produced in the Police Court.

The Police Magistrate ordered the accused to give an impression of his finger prints.

The finger print expert took the impression in Court and compared them with the original impressions on the glass. As a result of his comparison he found that the impressions taken in Court were identical with those on the glass. He also took an impression in Court of the palms of the accused and found them to be identical with the impressions found on the shutter.

The finger prints on the shutter had been found by the Inspector of Police at the store and were produced in Court.

On this evidence and on some evidence that the accused, who was a dismissed employee of the firm, had been seen in the vicinity on the night in question, he was convicted.

It was argued on appeal that the finger prints of the accused had been taken by the Police Magistrate without authority and were improperly admitted as evidence by the District Judge.

Section 73 of the Evidence Ordinance empowers the Court to compare any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written by a certain person to be compared with the signature, writing, or seal which is to be proved in order to ascertain whether that signature, writing, or seal is that of the person by whom it purports to have been written or made.

The section proceeds : " The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person .... and concludes with the words " this section applies also wi