[IN THE COURT OF CRIMINAL APPEAL]

1958 Present : Basnayake, C.I. (President), Sansoni, I., and
Sinnetamby, J.

THE QUEEN v. K. A. WIJEHAMY et al.

APPEALS 55 AND 57 OF 1958, WITH APPLICATIONS 72, 73, 74 AND 76

S.C.6--M.C. Colombo,37797

Evidence-Finger prints and palm prints-Mode of proof-Evidence Ordinance, s. 45.

When, in a criminal case, the prosecution relies on the report of a finger print expert to the effect that the finger prints said to have been found at the scene of the offence were those of an accused person, there must be direct evidence that the finger prints of the accused were handed to the finger print expert.

Evidence should not be elicited from a finger print expert as to the opinion he formed from a comparison of photographs of finger prints, when the photographs are not productions in the case. Under section 45 of the Evidence Ordinance it is for the Court to form an opinion as to the identity of finger and palm impressions, assisted by the opinion of an expert.

APPEALS, with applications for leave to appeal,' against certain convictions in a trial before the Supreme Court.

C. S. Barr Kumarakulasinghe, with T. W. Rajaratnam, for the 5th accused-appellant.

V. T. Thamotheram, Senior Crown Counsel, for the Attorney-General.

Cur. adv. vult.

July 21, 1958. SANSONI, J.-

Five accused were indicted in this case on charges of being members of an unlawful assembly, rioting, house-breaking by night, and robbery. The offences were committed in the early hours of 22nd January 1957. The 1st, 2nd, 3rd and 5th accused who were found guilty on all the counts of the indictment appealed. The appeals of 1st, 2nd and 3rd accused were dismissed after hearing, and we reserved judgment in regard to the appeal of the 5th accused.

The case against the 5th accused which the prosecution sought to make out was based entirely. on circumstantial evidence. The circumstances relied on by the prosecution were-

(a) that he had borrowed car No. CL 8711 from its owner on the evening of 21st January 1957 promising to return it at 2 p.m. the next day,

(b) that the car was seen at Weliwita near the scene of the offence at about the time it was committed,

(c) that the 5th accused was stopped and arrested at 2.30 a.m. on 22nd January at Ganagama junction eight miles from Weliwita, as he was driving from the direction of that village towards Kotte,

(d) that there were in the car

(i) two finger prints and four palm prints of the 5th accused,

(ii) one finger print and one palm print of the 1st accused.

The finger prints and palm prints do not necessarily connect the 5th accused with the crime, because it is established that the car was loaned to him and it is natural that the car should contain his finger and palm prints. The presence of the 1st accused's finger prints also does not by itself connect the 5th accused with the crime, because the owner of the car who gave evidence for the prosecution stated that the 1st accused went out with him in the car for a driving lesson on the morning of 21st January.

At the trial, but not at the Magisterial inquiry, the prosecution sought to produce evidence of the fact that there was on the ash tray of the car, which was at the rear of the front seat, two finger prints of a man called Obias who was one of the persons originally charged and who died during the Magisterial inquiry. Obias was identified as one of the members of the unlawful assembly.

We shall assume that if the finger prints of Obias were in fact proved to have been found on the ash tray in that car, the 5th accused was rightly convicted in the absence of an explanation by him as to how these finger prints came to be there. We must now consider whether the prosecution did establish by evidence that the finger prints found on the ash tray were in fact the finger prints of Obias.

The first witness whose evidence has a bearing on this point is P. C. 4968 AIagara