1948     Present: Canekeratne and Nagalingam JJ.

THE KING v. GNANAPIRAGASAM

S. C. 44-D. C. Grim. Jaffna, 4,341 

Criminal procedure-Inspection of scene of offence-Parties noticed-Right of judge to inspect.

It is not improper for a judge trying a criminal case to inspect the scene of the offence provided he notifies the parties and allows them to attend him at the view.

APPEAL from a judgment of the District Judge, Jaffna.

M. M. Kumarakulasingham, with J. Pathirana, for accused, appellant.

A. C. Alles, Crown Counsel, for the Attorney-General. 

Cur. adv. vult.

September 24, 1948. CANEKERATNE J.-

The 2nd accused appeals from a judgment convicting him of causing grievous hurt to Police Constable Kumarasamy and simple hurt to Police Constable Kanagalingam, while they were in the discharge of their duty on August 14, 1946. The two Constables had stopped a rickshawman plying his vehicle, for hire, unlighted along a public street about 7.30 p.m. when the appellant went up to them and

requested them to release the man. On being asked " to mind his own business " he slapped Kanagalingam and when seized he shouted that he 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 was Kanagalingam, 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 effect " Further trial January 12, 1948. Inspection today at 7.30 p.m." The inspection was held by the learned Judge in the presence of Council for both sides. On January 12, Counsel for the 1st and 2nd accused called the latter and some other witnesses and after Counsel had finished their addresses the learned Judge delivered judgment. He said that the opportunities for seeing the 1st, 3rd and 4th accused clearly and identi­fying them were little and that he had grave doubts of their correct identity and acquitted them. He gave cogent reasons for convicting the appellant. His Counsel contends that the conviction is bad inasmuch as the Judge inspected the place, which according to him he was not entitled to do; and secondly that the Judge was not impressed with the evidence given by the prosecution witnesses at the time he fixed the inspection and should have given the benefit of the doubt to the appellant. , He referred in this connection to the absence of any provision in the Criminal Procedure Code (Cap. 16 of the Ceylon Legislative Enactments) similar to that relating to a trial by Judge and Jury (section 238). Thus if no statute had told the Judge how to perform his duty in some novel or unusual situation he should feel helpless.

Evidence includes all modes, other than argument, by which a party may lay before the tribunal that which will produce persuasion. There are three sources of belief, one is the testimony of a witness who had seen a thing, e.g., a two edged knife being used by the accused on t