[IN THE COURT OF CRIMINAL APPEAL]

1955 Present : Basnayake, A.C.J. (President), Pulle, J., and
Weerasooriya, J.

REGINA v. S. PINHAMY APPEAL NO. 102 OF 1955, WITH APPLICATION NO. 157

S. C. 16-M. C. Puttalam, 3,120

Evidence-Identification of a dead person by his skull-Medical witness-Expert only in medical matters--Evidence Ordinance, s. 45.

In a trial for murder the Judicial Medical Officer of Colombo expressed the opinion that the skull produced in the case was that of the deceased. He based his opinion entirely on the examination of a superimposition of an enlarged photograph of the head of the deceased on a photograph of his skull. There was, however, no evidence that the medical witness was an expert on identification by superimposition of photographs.

Held, that it was not established that identification of dead persons by superimposition of photographs was a science or art within the meaning of section 45 of the Evidence Ordinance. The mere reference to the medical witness as " Judicial Medical Officer, Colombo " was insufficient for the purpose of making his evidence relevant under section 45 of the Evidence Ordinance in regard to matters other than those which properly fell within the functions of a medical officer.

Witness-Right of a party to recall him-Discretion of Court-Evidence Ordinance s. 138 (4).

The Court is not bound to permit a witness to be recalled whenever an application is made in that behalf under section 138 (4) of the Evidence Ordinance, unless the party making the application gives satisfactory reasons.

Jury-Communication between juror and witness-Duty of Court to discharge jury-Oath of separation-Effect thereof.

A Judge would not be justified in discharging the Jury merely because a witness was seen conversing with a Juror, unless the conversation was improper and it is necessary in the interests of justice to discharge the Jury.

On the third day of trial it was alleged by the accused person's pleader that the medical witness was seen talking to a Juror during the luncheon adjournment on the previous day. The allegation was made in the Judge's Chambers without any application for a retrial after investigation. At the time of the alleged conversation the witness had finished his evidence. On the sixth data of trial application was made to discharge the Jury.

Held, that there was no valid ground for discharging the Jury,

Evidence-Opinions of experts expressed in text books--When Counsel may read them, during address to the Jury or cross-examine an expert witness on them- Evidence Ordinance, ss. 46, 57, 60.

The proviso to section 60 of the Evidence Ordinance does not enable Counsel to road to the Jury extracts from treatises on medical jurisprudence which were not properly admitted in evidence in the course of the trial and before Counsel's address. Counsel is not entitled to read to the Jury the opinion of an expert expressed in any treatise commonly offered for sale unless, -where the expert himself is dead or cannot be called as a witness, such opinion has been proved by the production of the treatise. R. v. Baba (6 N. L. R. 35), followed. Quaere, whether the Court could be called upon to take judicial notice of such opinion on application made under section 57 of the Evidence Ordinance.

Although, under section 46 of the Evidence Ordinance, Counsel may cross-examine an expert witness by reading to him extracts from a treatise written by an expert, the witness may be asked only questions which he is competent and qualified to answer.

APPEAL, with application for leave to appeal, against a conviction in a trial before the Supreme Court.

G. E. Chitty, with R. A. Kannangara, A. S. Vanigasooriar, Daya Perera, and N. C. J. Rustomjee (Assigned), for the Accused-Appellant.

Y. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

December 12, 1955. BASNAYAKE, A.C.J.-

At the conclusion of this appeal we di