DRIEBERG J.—Lebbe v. Lebbe.
1933Present: Drieberg J.
LEBBE v. LEBBE.
860—P. C. Gampola, 1,354
Perjury—Witness charged summarily—Criminal Procedure Code, s. 440.
Where a witness is charged with perjury under section 440 of theCriminal Procedure Code it is no topen to the Court to base the chargeon depositions other than those in the proceedings.
A proctor should no tbe allowed to contradict the evidence of his ownwitness by deposing to what the witness had told him at a consultation,
^ PPEAL from a conviction by the Police Magistrate of Gampola.
H. E. Garvin, for appellant.
February 24, 1933. Drieberg J.—
The appellant was a witness for the defence, the charge being one ofunlawful assembly against the first accused Abdul Rahiman Saibo andfive others. A point to which attention was directed at the inquiry waswhether the first accused had gone to the Walauwa of the Ratemahatmayato make his complaint at about 1 or 1.30 p.m. The complainant saidhe had gone there at about that time and it was apparently a matterof some importance whether the first accused too had gone there atabout the same time. The Magistrate acquitted all the accused andcalled, or recalled, a witness Abdul Rahiman Saibo Idroos. He isapparently the person who gave evidence before but it is not so stated; butthis does not matter. The Magistrate then charged the appellant undersection 440 (1) of the Criminal Procedure Code with having given falseevidence in making the following statements :—“ I did not tell Mr. Kanaga-sabai that the first accused came to the Walauwa at 1 or 1.30 p.m. Thefirst accused came there at 5 p.m. This was the first time”. The Magis-trate convicted the appellant and fined him Rs. 50 and he has appealed.
The case against the appellant must be considered apart from theevidence of Abdul Rahiman Saibo Idroos when called after the verdict.He was called after the accused were acquitted and the case concluded.The falsity of the evidence in regard to which this summary procedureis available should be manifest in the course of those proceedings and itis not open to the Court to base the charge of false evidence on depositionsother than those in the proceedings, Achchi Kannu v. Ago AppuThecharge against the appellant must therefore be considered in the lightof the evidence given before the verdict.
The first part of the charge is that he falsely stated that he did nottell Mr. Kanagasabai that the first accused came to the Walauwa at1 or 1.30 p.m. The appellant is the Ratemahatmaya’s clerk. Thisstatement was made in these circumstances. The appellant was calledby Mr. C. N. D. Jonklaas who was appearing for the defence. He began
* (1D0J) 0 N. L. H. SO.
DRDSBERG J.—Lebbe v. Lebbe.
his evidence by stating that the first accused came twice that day to meetthe Ratemahatmaya. Thereafter and apparently in answer to a questionas to what he had told Mr. Kanagasabai he went on to say “ I did nottell Mr. Kanagasabai that the first accused came to the Walauwa at1 or 1.30 p.m. ”. He then gave particulars of the two visits of the- firstaccused; he came for the first time at 5 p.m., waited on at the garage,and then came again at 6 p.m. Mr. Jonklaas then asked that Mr. Kanaga-sabai be called. Mr. Kanagasabai is a proctor who was appearing forthe defence with Mr. Jonklaas. This was allowed though objected toby complainant’s proctor, and Mr. Kanagasabai gave evidence thatMr. Jonklaas asked him to find out what the appellant’s evidence wasgoing to be. Mr. Kanagasabai was apparently not very confidentof himself and he asked Mr. Jonklaas to be present. He asked this,he says, knowing the witness as he did. Mr. Jonklaas could not bepresent, so he questioned the appellant in the presence of A. R. S. Idroos.Mr. Kanagasabai said that the appellant told him that the first accusedcame to him at about 1 p.m. or so, just after the complainant. Afterpronouncing judgment the Magistrate examined A. R. S. Idroos whoconfirmed what Mr. Kanagasabai had said. As I have pointed out, thecase against the appellant must be considered without regard to A. R. S.Idroos’ evidence given after the verdict and there is therefore only theevidence of Mr. Kanagasabai against that of the appellant regardingwhat passed at this interview. The appellant consequently has beenconvicted on the uncorroborated evidence of Mr. Kanagasabai. Sucha conviction is bad, as has been pointed out in Police Sergeant, Dematagodav. Aruma I wish to point out however the grave objections whichexist to the extraordinary course adopted in this case of a proctor askingto be allowed to contradict the evidence of his own witness by givingevidence of what that witness' had told him at a consultation or whenpreparing his case. If, as in this case, the proctor is believed it meansthat the Court rests its decision not on what the witness says but onwhat his proctor says the witness told him.
The other statement of his alleged to be false is that the first accusedcame to the Walauwa for the first time at about 5 p.m. This is in directconflict with the first accused who says he went to the Walauwa atabout 1 or 1.30 p.m. and met the appellant there. The only evidencewhich might possibly be corroboration of his statement is that of hisson A. R. S. Idroos, who lives in Kandy. He says he was in Kandythat day. He received the telegram D 3, despatched from Gampola at
30 p.m., informing him that there was objection to his father prayingat the Mosque and asking him to come. He went to Gampola and hesays his father there told him that he had been to the Ratemahatmaya’sWalauwa once at 1 p.m. and again at 6 p.m. This was evidence given inthe course of the proceedings. This is insufficient as corroborationfor he does not say that the first accused told him that he met theappellant there when he went at 1 p.m. The conviction on this chargetoo must fail for the reason that there is against the statement of theappellant only the uncorroborated testimony of the first accused.
I set aside the conviction and acquit the appellant.
> <im 27 N. T, R. ill
LEBBE v. LEBBE