,TAYKTJX EKE J.—Daasanayake v. Excise Inspector, Horana..
1946Present: Jayetileke J.DASSANAYAKE, Appellant, and EXCISE INSPEOTOR,HORANA, Respondent.
13,567— M. C., Panadure, 37,703.
False evidence—Conflict of testimony—Summary punishment-—CriminalProcedure Code, 8. 440.
The provisions of section 440 of the Criminal Procedure Code are notintended to apply to a case -where there is a conflict of testimony betweentwo witnesses.
PPEAL from an order fining a witness for perjury under section440 of the Criminal Procedure Code.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for theaccused, appellant.
T. K. Curtis, C.C., for the Attorney-General.
January 23, 1946. Jayetlleke J.—
In this case one Charles was charged under section 40 (a) of the ExciseOrdinance (Cap. 4^) with having failed to give notice to the properauthorities that one Seneris was unlawfully tapping for toddy twococonut trees standing on a land belonging to him. The Excise Inspectorwho entered the prosecution stated that Charles had not given infor-mation about the tapping to any authority The appellant, who isthe Headman of the village in which the tapping took place, stated thatCharles had given information to him about the tapping and that hetold the Inspector several times about it. The Magistrate convictedCharles on the evidence of the Excise inspector and called upon theappellant to show cause why he should not be dealt under section 440of the Criminal Procedure Code for giving false evidence. The appellantstated—
“ I have made a mistake. I beg of the Court’s pardon
The Magistrate treated this statement as an unqualified admission ofguilt and fined the appellant Rs. 50. I think the Magistrate has erredin treating the appellant’s statement as an unqualified admission ofguilt. But quite apart from that it seems to me that the convictioncannot stand. There is an entry in the appellant’s diary under dateDecember 13, 1944, which reads as follows :—
“ This day at about 12 a.m. Charles complained that of the treesleased out by him to M. D. M. Gunasekera two trees are being tappedby Dassanayakege Seneris without a licence ”
The entry supports the evidence which the appellant gave at the trial thatCharles gave him information about the tapping. The Excise Inspector
JAYKTXTjKKE J.—Dasaanuyatre v. B-ecise Inspector, Horana.
has not stated affirmatively that the appellant did not tell him whatCharles had conveyed to him, but his evidence seems to suggest that hewas not aware of the fact. It may well bo that he was mistaken andthat if he had been reminded of the occasions on which the appellantgave him the information he may have remembered it. Mr. Weerasooriainvited my attention to two decisions of this court, Ahamath v. Silva'and Mohamadu v. Porlentina?, where it has been held that the provisionsof section 440 are not intended to apply to a case where a conflict arisesbetween the testimony of two witnesses. These decisions seem to meto apply to this case. I would set aside the conviction and acquit theaccused.
1 23 if. L. R. p. 444
2 7 Law Recorder 120.
DASSANAYAKE , Appellant, and EXCISE INSPECTOR , HORANA , Respondent