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September 8and 9.
WiTHffi&S, J.
“ I oannot say whether Baba Appu was seated in my boutique“ at the time the notice was handed to me *** there
“ was a large crowd *** I cannot say if Baba Appu
“ was there. I have no recollection of having seen him that day.”
The Magistrate charged him fvith falsehood in making the twolast statements which I have underlined. Now, in the case ofAndries v. Juanis (reported in 2 N. L. R. 74), the Chief Justiceexpressed the opinion that this summary procedure should onlybe used in cases where it is clear on the face of the proceedingsthat witnesses have been guilty of wilfully giving false evidence,not in cases where there is a conflict of testimony. It is quiteimpossible to say that the falsity of the appellant’s evidence istransparent in this case. Of course it may be a wilful lie whenhe says that he has no recollection of seeing Baba Appu there (i.e.,in his boutique) that day, but it is not a transparent one, havingregard to the rest of the evidence in this proceeding, which is allconsistent.
It happens, however, that some two months before in a judicialproceeding in which the same counterfeit note, as the one in thiscase, was the subject of inquiry (though the person charged withuttering it was different), this witness was asked about the presenceof Baba Appu at the place where and time when the counterfeitnote was presented, and he answered, “ Baba Appu was there at“ the time,” but shortly afterwards he qualified that statementwhen further examined in the former proceeding by saying, “ I“ cannot say whether Baba Appu was there when accused handed“ me the note.” He could not be certain, he added, because of thegreat crowd of people at the time when this tom counterfeit notewas offered in payment.
As the first inquiry was the earlier one it is (natural to supposethat the witness would better remember who were present andwhat occurred at a certain time and place, and if the witness wasthen speaking the truth Baba Appu was “ there,” but even thenthe witness was not certain whether Baba Appu (now the accused)was there at the time when the former accused offered thecounterfeit note to the witness. Now, all that he says is thathe cannot recollect whether Baba Appu was there or not. It isea9y to assert that the witness is lying when he says so, but verydifficult to prove it. What if it was a careless utterance of hiswhen he said at the previous inquiry Baba Appu was there ? It ishis present statement that must be the falsehood for which he isfined, and it requires some courage to convict a person of a wilfullie when he says he cannot recollect whether a thing happened ornot. Is it necessarily more than a cautious attitude and a wish
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not to commit himself to a positive statement ? For it must beremembered that Baba Appu is now charged in connection withthe same notes. What was then said of Baba Appu did not concernhim. What is said of him now is of grave importance, and mayseriously incriminate him. The witness, indeed, should not lightlyanswer any question damaging to the accused. But after all, whatthe appellant complains of, and has a right to complain of, is this :—
The Magistrate did not say to me “ On the former occasion in“ the course of inquiry into the charge against Hendrick about“ this note you deposed that Baba Appu was there, i.e., at your“ boutique, about the time the note was tendered. Now you say“ you cannot recollect whether Baba Appu was there or not. I am“ convinced the statement you now make is a lie ; unless you can“ explain it or reconcile it with your former statement I shall be“ obliged to punish you.”
It is clear that this explanation should have been asked for, andthe Magistrate should have stated why the explanation (if so) wasunsatisfactory, and why he believed the statement impeached to bea deliberate lie. The Ordinance, I feel sure, was not intended topunish a witness as for contempt in a summary trial, because hisevidence, though quite consistent at the trial, differs materially fromwhat he said in another judicial proceeding. That class of casesshould be referred to the Attorney-General.

September 8and 9.
Withers, J.