133-NLR-NLR-V-22-AHAMATH-v.-SILVA.pdf
Present: Schneider A. J.
AHAMATH v. SILVA.
730■—P. C. Balapitiya, 48,178.
Criminal Procedure Code, s. 440—Conflict oj testimony between twowitnesses—False evidence.
The appellant in his evidence said that (1) he did not sell rubberto the accused; and (2) that he did not state to the Inspector thathe had sold rubber to the accused.
To contradict these statements the Magistrate called the.Inspector, who stated that the witness did tell him that he had soldrubber to the accused.
Held, that the Magistrate should not have proceeded undersection 440 of the Criminal Procedure Code under the circumstances.
“ The provisions of the section are not intended to apply to acase where a conflict arises between the testimony of two witnesses. ’ *
T | IHE facts appear from the judgment.
F. de Zoysa, for the appellant.
October 11, 1920. Schneider A.J.—
This ia an appeal by a witness who has been convicted undersection 440, and sentenced to pay a fine of Us. 50. He has beenconvicted in respect of two statements; First, that he did not sellrubber to the accused; and secondly, that he did not state to thePolice Inspector that he had sold rubber to the accused. Thewitness’ own evidence was that he had not soldrubber to the accused,and that he made no statement to the Inspector that' he had soldrubber. To contradict these statements, after the witness hadgiven evidence, the Magistrate called the Inspector, who statedthat the witness did tell him that he had sold rubber to the accused.Upon this material the Magistrate convicted the accused. I donot think the conviction should stand, because it has been pointedin a number of cases that section 440 should not be utilized in themanner in which it has been done by the Magistrate in this case.It has been pointed out that the provisions of that section werenot intended to apply to a case where a conflict arises betweenthe testimony of two witnesses. The principle which should guideCourts in resorting to the provisions of section 440 is to be foundin the following cases: Achcki Kannu v. Ago Appu;1 MariampillaiLoonappenv. MariapiUai ;a Bandar a v. XJkhuwa;® Sanitary Inspectorv. FernandoA I, therefore, set aside the conviction, and acquit theaccused.
Set aside.
3 (1914) 4 Bat. Notes oj Cases 18.
1 (1914) 2 Cr. A. R. 55.
1 (1901) 5 N. L. R. 87.
* (1911) 6 S. C. R. (Weera.) 32.