Samaranayake V. Wijesinghe

1951 Present: Basnayake J.

SAMARANAYAKE, Appellant, and WIJESINGHE (Inspector of

 Police), Respondent

S. C. 1,315-M. C. Galle, 18,832

Inspection of scene of offence-Judge trying a case without jury-Scope of visit- Principles applicable-Stage at which inspection may be made-Criminal Procedure Code, ss. 238 and 482 (1) (c)-Evidence Ordinance, Proviso to section 60-Prosecuting officer-Should not have played leading role in detection. of offence.

It is not open to a Magistrate, in the course of an inspection of the scene of an offence, to carry out experiments for the purpose of verifying the veracity of witnesses or testing their evidence.

A Judge sitting alone as a judge of both fact and law has the power to view the scene of the offence at any stage of the trial. He must, however, exercise-that power within the limits allowed to a jury, for as a judge of fact his role is the same. The purpose of the view is to obtain a better understanding of the evidence but not to find out the truth or falsity of the oral evidence although incidentally a view may have the effect of exposing the false witnesses. Before a view is decided upon, the Judge must satisfy himself that no-material change has taken place in the surroundings since the date of the offence.

A public officer who has played the leading role in the detection of an offence should not, in the interests of justice, act as a prosecutor in that case.

APPEAL from a judgment of the Magistrate's Court, Galle.

G. E. Chitty, with A. W. W. Gunawardena, for the accused appellant

H, A. Wijemanne, Crown Counsel, for the Attorney-General.

cut. adv. vult.

 May 15, 1951. BASNAYAKE J.-

The appellant Peter Samaranayake has been convicted of the offence of selling fermented toddy without a licence and ordered to pay a fine of Rs, 150. The conviction is challenged on grounds of law and fact. The case for the prosecution is that in consequence of certain information received by him Inspector Wijesinghe arranged a trap for the appellant and obtained a search warrant to enter and search the premises known as Danwela Group, Baddegama, owned by one Henry Abeywickrema who manufactures vinegar therein. The appellant is an employee in the vinegar manufactory, his duty being to supervise the collection of toddy and its disposal into the appropriate vats.

The technique adopted was the usual one of sending a decoy with; a currency note the features of which were previously noted. In this instance Police Constable Banda acted as the decoy and he was accompanied by Police Constable Suraweera. It was a ten-rupee note that he tendered for the two bottles of toddy purchased by him, the total cost of which was Re. 1.40. The evidence relating to the sale of toddy if true, is sufficient to warrant a conviction on the charge.

The case for the defence is that this is a trumped-up charge. The allegations of the prosecution are denied and counter allegations of:

using violence on the appellant and others and of destruction of property and the breaking open of doors and windows and the fabrication of false evidence, are made against the police.

After hearing the case for the prosecution and the defence the learned Magistrate without recording his verdict made the following order: -

" In view of the sketch I propose to visit the scene tomorrow after the day's work. It is not possible to visit the scene today (4.80 p.m. now). As it is late and the road is said to be muddy and the distance is over 13 miles, I propose to visit the scene tomorrow after 4 p.m. Accused to be present in Court tomorrow morning. On same bail."

On the following day the learned Magistrate visited Danwela Group. The appellant and the prosecution witnesses were present. The following is the Magistrate's note of his visit: -

I first inspected the spot where the alleged sale is said to have taken place. I was shown the spot by P. CC. Banda and Suraweera. I g

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