COURT OF APPEALPALAKIDNAR, J. (P/C.A.) ANDGUNAWARDANA, J.
H.C. MATARA NO. 38/90
COURT OF APPEAL NO. 165/90
30 OCTOBER AND 02 NOVEMBER 8, 1992
Criminal Law – Giving false evidence – Procedure to be followed to prove acharge under Section 190 of the Penal Code, read with section 448 of theCriminal Procedure Code.
The accused was Indicted in the High Court for giving false evidence. At the trial,the only evidence was that of the Interpreter Mudaliyar of the High Court, whoproduced extracts of the non-summary proceedings. In answer to leadingquestions, the Interpreter Mudaliyar had stated that the accused had givencontradictory evidence in the High Court. The extracts of the accused’s evidencein the High Court were not produced.
The proper procedure to prove a charge under Section 190 of the Penal Code,read with Section 448 of the Criminal Procedure Code, is to mark and producethrough the appropriate Court official, the extract of the Magistrate's Court recordof the non-summary inquiry and the extract of the evidence of the accused, givenIn the High Court.
This procedure will not only provide adequate proof ofthe contradictory evidencegiven by the accused, but also would facilitate the Jury to compare the two setsof evidence, and arrive at the verdict, whether the accused had givencontradictory evidence, without having to rely on any opinion expressed by awitness.
Per Gunawardana, J., “Otherwise, as it appears to have happened in the instantcase, the Jury is called upon to reiy on an opinion given by a witness, and not extthe actual contradictory items of evidence. This would result in begging the veryquestion from the Jury, which they are called upon to decide."
Case referred to:
1. S. Pedrick Singho et at. v. The King 52 NLR 241.
APPEAL from order of High Court of Matara.
Or. Ranjith Fernando with J. Fernando tor accused-appellant.
R. Aresecularatne Senior State Counsel for the State.
Cur. adv. vult.
2nd November, 1992.
The accused in this case was charged in the High Court of Matarawith having given false evidence, an offence punishable underSection 190 of the Penal Code, read with Section 448 of the CriminalProcedure Code.
After trial,, before a Jury, the accused was convicted andsentenced to 3 years rigorous imprisonment and a fine of Rs. 100/-.This.appeal is from the said conviction and sentence.
The accused was a witness for the prosecution in a High Courttrial, where another person was charged for murder. It was allegedthat the accused retracted or contradicted the evidence given by himbefore the Magistrate, and the other person who was charged for1murder was acquitted.
After that trial was concluded, the accused was indicted beforethe same Jury on a charge of giving false evidence. At the trial of this
accused, the only evidence that was led, was that of the InterpreterMudaliyar of the High Court of Matara, who produced the relevantextracts of the evidence of the accused, given in the MataraMagistrate’s Court, in non-summary proceedings, in case No. 88285.The four extracts of the accused’s evidence in the Magistrate’s Courtwere produced by him, marked X1, X2, X3 and X4. Thereafter inanswer to a leading question by the learned State Counsel, as towhether the accused in his evidence in the High Court has statedthat, he did not see anything of the incident, the Interpreter Mudaliyarhas said “yes". To another leading question as to whether theaccused had denied being there at the scene or having seenanything, although he has stated so in X2, the witness has answered“yes”. In answer to a question whether the accused had stated thathe did not see one Wasantha Batagoda, but in cross-examinationhad stated that Wasantha Batagoda was there with another person,although he has stated otherwise in X3, the witness had answered“yes”, In reply to a question as to whether the accused has stated inthe High Court, that he went from another place to the scene withWasantha, the second witness for the prosecution, at the time thedeceased sustained the injuries, the witness had stated “yes”. Finally,when he was asked as to whether the accused had stated in theHigh Court, that the accused delayed to make the statement to thepolice, because the accused had not seen the incident, the witnesshad replied “yes”. No extracts from the evidence of the accused inthe High Court were produced.
The above questions were reproduced in detail firstly, to show thatthe form and content of the questioning is erroneous. All thequestions are leading questions to which the witness has merely said“yes”. Secondly, it is not discernible from the questions as to whatcontext in the High Court record, the learned State Counsel isreferring to, when he traced the said questions. Thirdly, the actualcontents of the High Court record not being before the Jury, it wouldamount to the witness giving an opinion, on whatever the contents ofthe High Court record, the Interpreter Mudaliyar was looking at, whenhe gave evidence. Fourthly, it would tantamount to negativing thefunction of the Jury, because the Jury being judges of fact, mustconsider the two sets of evidence given by the accused, and then
decide whether one is contradictory of the other, rather than rely onan opinion given by a witness.
In the light of the procedure adopted by the prosecution in thiscase, the learned Counsel for the accused submitted that there wasno proof before the Jury that the accused had given false evidence inthe High Court. He argued that, therefore the charge must fail. Hecited the case S. Pedrick Singho et al. v. The Kingm where the. maindecision did not however deal with the procedure to be adopted inproving a charge for giving false evidence, nevertheless, it sets outthe extracts of the proceedings of the Assizes which show theprocedure that had been adopted to prove the charges in the threecases considered in that judgment. It is discernible from the extractsquoted in the said judgment, that the procedure adopted in the saidthree cases was to mark and produce through the Clerk of Assize theextract of the Magistrate's Court record of the non-summary inquiryand the extract of the evidence of the accused given before theSupreme Court. This procedure in our view not only providedadequate proof of the contradictory evidence given by the accusedbut also facilitated the Jury to compare the two sets of evidence andarrive at the verdict whether the accused has given contradictoryevidence, without having to rely on any opinion expressed by a thirdparty. This in our view, is the appropriate procedure that should befollowed in proving a charge of giving false evidence, Otherwise, as itappears to have happened in the instant case, the Jury is calledupon to rely on an opinion given by a witness, and not on the actualcontradictory items of evidence. This would result in begging the veryquestion from the Jury, which they are called upon to decide.
Therefore, we are of the view that the procedure followed in theinstant case has occasioned a failure of justice, and the verdict of theJury has thereby been seriously undermined. Hence, we set asidethe verdict of the Jury and acquit the accused.
PALAKIDNAR, J. (P/C.A.) – / agree.
VITHARANA v.THE STATE