I 417 )
Present: Dalton J.
POLICE SERGEANT, DEMATAGODA v. AROMA.719—P. C. Negombo, 52,771.
False evidence—Summary trial—Uncorroborated testimony—CriminalProcedure Code, s. 440.
A person oannot bo convicted summarily of giving false evidenceunder seotion 440 of the Criminal Procedure Code, on uncorrob-orated testimony.
PPEAL from a conviction for perjury under section 440 of
the Criminal Procedure Code. The faots appear from thejudgment.
Ameresekere, for witness-appellant.
December 21,1925. Dalton J.—
The appellant, Ranohothipedige Davitha, has been convictedunder the provisions of section 440 of the Criminal Procedure Codefor perjury. Ho was a witness for tho prosecution in a case of theftin the Negombo Police Court, and at the close of the proceedings hewas called upon to show cause why he should not bo punished forgiving false evidence.
It appears that before tho appellant was called evidence was givenby one Sardia, Police Vidane. The dofence in the theft case wasbased upon the suggestion that the complainant’s wife was of a badcharacter. Aftor Sardia had given evidence Davitha was calledand then sworo that complainant went with him to the PoliceVidane and complained to him about the elopement of his (com-plainant’s) wife with another man. Thereupon the Magistrateimmediately rc-callcd the Police Vidane, who had been asked nothingabout this alleged particular complaint before, and lie denied thatany such complaint was ever made to him in DaVitha’s presence.After tho Police Vidane had given this evidence, other evidence inthe thoft case was led, which is not, however, material to the chargeagainst appellant.
Tho first ground of appeal is that evidence was called after Davithahad given the evidence complained of specially to disprove hisstatement. The authorities relied upon by appellant, however, dealwith cases where evidence has been called after the closing of thecase to prove that a witness lias perjured himself. They lay downthat it is necessary that the falsity of a witness’s evidence shouldappear from what has taken place in the course of the trial, and not
( 418 )
PoliceSergeant,Dematagoda,v. Arum a
from something that has taken place subsequently (Achcki Kannu
Ago Appu1 and Mariampullai v. MariapuUai2). As the Magis-trate points out in view of the defence in the theft case, it wasnecessary for him to know whether or not any complaint had beenmade to the Police Vidane respecting the complainant’s wife, and itwas for this purpose that he re-called the Police Vidane. It is cleartherefore that if he chose to believe the Police Vidane. on this pointand to disbelieve Davitha the falsity of Davitha’s evidenceappeared from evidence given in the course of the trial.
It is equally clear, however, that there was a conflict of testimonyon this point between Davitha and the Police Vidane. I have beenreferred to a decision of this Court where it has been held that theprovisions of section 440 were not intended to apply to a case wherea conflict arises between the testimony of two witnesses (Ahamath
w.Silva?). In an earlier decision also De Sampayo J., whilst notgoing so far on the question of the intention of section 440, holdsthat it is not safe or desirable to' bring in the machinery of section440, so far as it deals with summary procedure. When the conflictis between the complainant on the one side and the witnesses on theother.. Applying this authority (Sanitary Inspector v. ThemisFernando)4 which commends itself to me to the case before me, itseems to me neither desirable nor safe to make use of the summarypowers given by section 440, when the conflict as here is between twowitnesses, even assuming for the moment that no corroboration ofthe Police Vidane*s evidence of Davitha’s false evidence is necessary
In Bex v. Sirimanaf however, it has recently been held by thisCourt that an accused person should not be convicted of perjury onuncorroborated evidence. In that case a trial was held and theproceedings were not summary. The offence charged was laidunder section 190 of the Penal Code. Whether however the pro-ceedings be summary or otherwise the offence charged is still“ perjury ” or giving false evidence,” as defined in section 188 ofthe Code, and therefore this decision is applicable Apart from thisit might well be argued that if corroboration is necessary in a formaltrial, it is all the more necessary in the interest of the accused whenuse is made of summary powers as here. There was no corroborationof the evidence of the Police Vidane as to the false evidence ofDavitha. I understand that the point had not been raised inCeylon before (Rex v. Sirimana (supra)), but the question appears tohave been fully argued in that case. On two grounds of appeal,therefore, the appeal must be upheld.
The appeal is allowed, and the conviction quashed.
> 5 X. L. X. S7.3 22 N. L. B. 444.
2 6 1 Veerakoon's Bepovts. 32.4 2 Or. A. B. 55.
•rC. L. Bee. 7.