1933 Present: Drieberg J.

REX v. CARUPIYAH et al.

23-P. C. Matale, 8,189.

 [SECOND MIDLAND CIRCUIT.]

Footprint impressions-Right of Court to order an accused's footprints to be taken-Photographs of impressions taken by police-Admissibility in evidence-Method of proof-Criminal Procedure Code. s. 73.

A Court has no power to order an accused person to submit impressions of his foot to be taken for the purpose of allowing a photograph of such impression to be used as evidence against him. Photograph of an impression taken by the police at the police station without objection by the accused may be led in evidence.

It is open to the jury to examine the photograph of the impression and to compare it with certain blood-stained footprints, the identity of which with the accused's it is sought to establish.

THE accused in this case was charged before the Supreme Court with murder of one Victoria Jesudasen. The Crown Counsel asked the Court for a ruling on the admissibility of certain evidence he proposed to lead. The facts appear from the order.

R. S. S. Goonewardene, for first accused.

Mackenzie Perera, for second accused.

R. St. L. P. Deraniyagala, C.C., for the Crown.

Cur. adv. vult.

October 3, 1933. DRIEBERG J.-

While opening the case for the prosecution, Crown Counsel asked for a ruling on the admissibility of certain evidence he desired to lead.

On the floor of the house, in which Victoria Jesudasen was found dead of injuries, were blood-stained footprints; one of these was photographed (exhibit P 31A). For the purpose of comparison, two impressions were taken of the right foot of the accused, one by the police when the accused was at the police station-the photograph of this is P 54 ; the Court ordered the other impression to be taken and the photographs of this are P 32 and P 33.

The photograph P 31 ( shows certain marks on the ball of the foot and on the heel which it is said are scars, and it is sought to produce for comparison the photographs of the impressions taken of the foot of the first accused. The question is whether these are admissible in evidence. Two questions arise, firstly whether evidence can be led of the impressions taken, and secondly whether, if these photographs are admissible, in what manner and to what extent they can be utilized as evidence.

The impression, of which P 32 and P 33 are photographs, was taken on the order of Court despite the objection of the first accused. It Was contended by Crown Counsel that the Court had the power to order the impression to be taken, and I was referred to the case of The King v. Suppiah 1[(1930) 31 N. L. R. 435.] In that case the Court ordered the accused to give an impression of his fingerprints for comparison with finger impressions found on

the broken glass panes of a building he was charged with having broken into. The decision is in itself of little help in this case, for it proceeded on the construction of section 73 of the Evidence Ordinance which enables a Court to direct any person present in Court to submit impressions of his fingers. It was held that this provision extended to an accused, and in my opinion the judgment could have been based on the reason only that the provision applied to any person in Court and there was nothing to exclude its application to an accused.

In this case it is said that the first accused has certain scars on the sole of his right foot which can be seen in the impression of it and that traces of similar scars are to be found in the footprint in the room (P 31A). Section 73 empowers a Court to direct anyone present in Court, and that includes an accused, for purposes of comparison to write words or figures or give fingerprint impressions, but this does not empower a Court to direct an accused to submit for examination and comparison the impression of any other part of his person. Lyall Grant J. in The King v. Suppiah (supra) referred to th