034-NLR-NLR-V-40-BARNES-v.-PINTO.pdf
ABRAHAMS'C-J.—Barnes v. Pinto.
125
1938Present: Abrahams CJ.
BARNES v. PINTO.
565—P. C. Colombo, 7,749.
Inspection of scene of offence—Duty of Magistrate—No occasion for freshevidence—Necessity for repeating evidence from witness-box—CriminalProcedure.
A Court is entitled to view the locus in quo in order to arrive at a betterunderstanding of the evidence. But the inspection should be carriedout with great care and should not be made the occasion for the takingof fresh evidence. If anything is said or done which amounts to thetaking of fresh evidence and the correction of any doubts in the mind of'the Court, that evidence should be repeated from the witness-box so.that no prejudice may be caused to the accused.
^^PPEAL from a conviction by the Police Magistrate of Colombo.
No appearance for accused.
E. H. T. Gunasekere, C.C., for respondent.
Cur. adv. vult.
November 7, 1938. Abrahams C.J.
The .appellant in this case iff a boy of eighteen. He was charged with"stealing a gun from the house of a^fnan called Vincent de Alwis withwhom the gun had been left by its owner, W. B. Fernando. Fernandostated that he had left the barrel of the gun wrapped up in paper andcloth. A little girl, Bridget, the daughter of Vincent de Alwis, statedthat the accused came to the house, pushed her on one side, entered intothe house and removed the gun from the loft where it had been placed.She cried out to her father who said that he saw the accused coming outof the house with the gun and pursued him and caught him at his housewhere his father and his brothers prevented Vincent from proceedingany further. Another witness, Romanis, said that he saw the accusedrunning with a gun and going towards his house followed by Vincent.The Police Vidane to whom a complaint was made by Vincent some hourslater, stated that he searched for the accused and could not find him norcould he get any information of his whereabouts. On a Police reporteight days after the alleged offence a warrant was issued which was notexecuted. From the record it would appear that the accused surrenderedtwenty-nine days after the alleged offence.
The accused said that the charge was completely false and was inspiredby spite as there was litigation between the complainant and the accused’sfather, but that there was some ill-feeling between the parties has beenaccepted by the Magistrate.
The evidence as it appears from the record had certain contradictoryfeatures about it, and the Magistrate says that at one time it seemedrather fantastic, particularly because of the peculiarities in the witness-box of the witness Vincent de Alwis, which made the Magistrate suspecthis honesty. At the (dose of the case for the prosecution the Magistratedecided to inspect the scene before he called on the defence. The time
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ABRAHAMS C.J.—Barnes v. Pinto.
was fixed for the inspection and notice was served on the prosecutingofficer and on the accused. At the scene of the inspection the Magistratesays that the witness Vincent de Alwis “took us through the wholeincident following the line the accused is alleged to have taken to hishouse with the gun The Magistrate was then convinced, after viewingthe scene, that the man was speaking the truth in the witness-box, andhe also thought that the peculiarity of his manner was due to nervousnesswhich he seemed “to shed out of the witness-box”. Now in order toarrive at a better understanding of the evidence the Court is entitled toview the locus in quo. But experience of Courts going beyond thepurpose of a view has shown that this inspection should be carried outwith great care and ought not to be made the occasion for the taking offresh evidence. In my opinion if anything is said or done which amountsto the taking of fresh evidence and the correction of any doubts whichmay be in the mind of the Court prior to the view it is essential that thatevidence should be repeated in the witness-box in order that no prejudice. should be occasioned to the accused. In this instance the inspectiondoes appear to have imported a certain amount of fresh evidence, butwhat to my mind is rather serious is that the demeanour of the witnessVincent de Alwis outside the Court was employed by the Magistrate tocorrect an unfavourable impression which was created when he was inthe witness-box. This is tantamount to the Magistrate using his ownpersonal knowledge to correct an unfavourable opinion that he hasformed as a Magistrate of a witness. I am bound to say that the Magis-trate has been very frank about what appears to me to have been anirregularity. So far as the evidence of this witness is concerned I amafraid it must be deemed to have been unsatisfactory, and I think thecase must now be looked at from the point of view of the other evidenceon the record and I must ask myself whether the accused ought to havebeen convicted in any event.
It appears to me that the case is a strong one even without the testi-mony of Vincent de Alwis, and though the Magistrate states that thelittle girl Bridget has drawn on her imagination in one respect, yet he saysshe was unshaken in cross-examination, and it was difficult to believethat she had been coached. If that is so, then there was no reason whythe Magistrate ought to have rejected her evidence. There is also thewitness Romanis who says that he saw the accused running with a guntowards his house followed by Vincent and that there was a big discussionon the accused’s land about the gun between Vincent and the accused’sfather and brothers. The accused himself, stated that Vincent came tohis house on the day in question, seized him and told his father that hehad stolen a gun from the complainant’s house and that he had comeafter him; that his father told him to look for it and take it if it was there,and that Vincent searched the house and went away. This appears tome to be 'corroborative of the evidence of Romanis. However, the clothand paper in which the owner of the gun says that the article was wrappedwas found near the house. It was found on the path along which theaccused is said to have run. Further the headman testified to the factthat on the morning of the alleged offence Vincent complained to himthat a gun had been stolen by the accused who ran away with it to his
127
WUE YEWARDENE J.—Wanigasekere v. Mustapha.
house. Whether that complaint was true or whether it was false, it wasmade. The headman says that in consequence of that he went to thehouse of the accused and did not find him there. -He could get no inform-ation about his whereabouts although his father was there. Theheadman searched for the accused in the neighbourhood and in the villageduring that day. The accused was not in the village after that. Noexplanation was given of what the accused was doing from that dateuntil the day that he surrendered to the Court. It was obviously astrong case for the accused to answer. In my opinion it has not beenanswered merely by saying that there was ill-feeling between his familyand that of the complainant. Despite then the substantial irregularityabove mentioned that the Magistrate committed, in my opinion theconviction was right and I dismiss the appeal.
Affirmed.