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Present: Bertram O.J.ANANTHAM v. SAIADO.67—P. C. Mannar, 9,638.
Falseevidence—Contradictorystatements—Prosecutionmust allege which
isfalse—Loose statements in immaterial introductory matters not
to be made subject of charge.
When a 'witness is charged for giving false evidence, it is nojtcompetent to the prosecution tO' allege that the witness made twocontradictorystatements,one of which mustbe false. The
prosecution must commit itself to one which it alleges to be false,and prove that it is false to the knowledge of the person making it.
“ Loosestatements in immaterial introductory matters, made in
such a manner that it is obvious that the witness is not thinkingwhat he issaying arenotappropriate subjectsfora charge of
giving false evidence."
'THE complaint in this case was as follows:—
Seemampillai MudaliyarMannar, complainant.
Kader Mohideen Saiado of Jaffna, accused.
On this 8th day of January, 1920.
I do hereby complain that the accused above named did on or aboutthe 30thday ofDeoember, 1919,atMannar, beingexaminedas a
witness inPoliceCourt, Mannar,caseNo. 9,633, ajudicial proceeding
then pending before the said Court, and being bound by an affirmation .to state the truth, intentionally give false evidence by knowingly andfalsely stating:—
(a) " Last Thursday .morning (meaning December 25,1919)—
do not know the date—I left Jaffna for Eantil&mpiddy. I brokejourney at Medawachchiya, and started again by the night mail. No, Icame by the day train and. got down at Maliwady and went to Eantilam*piddy. ” Whereas in truth and in fact he did not travel on that day bytrain fromJaffnaor break journey atMedawachchiyaand startagain
by night mail or day train and got down at Maliwady.
(i) " Beached Talaimannarnext morning ”(meaningDecember 28,
" No, IreachedTalaimannar thatnight about 10 p.u." (meaningnight
of December 27, 1919).
One of which statement must be false.
(e) “ I did not see the dog. ''
“ I saw the dog running. '*
One of which statement must be false, and that he has thereby com*mitted an offence punishable under section 190 of the Ceylon PenalCode
(Signed) 8. M. Anantham,
– Additional Police Magistrate.
The following was the judgment of the learned Police Magistrate(B. G. de Glanville, Esq.):—
Accused is charged with giving false evidence in making the statementsindicated in theplaint. It isquiteclear fromtheevidence ofthe
Magistrate before whom the statements were made that they were notmade inadvertently or without intention, but that in each case theaccused, when hefound that hehad made a statementwhich couldnot
be true or which was leading him into difficulties, promptly and deli-berately contradicted his first statement and made a completelyopposite statement.
Beading through his evidence as a whole, it is very difficult to getaway from the conclusion that the accused was inventing the greaterpart of his story, but of this there is, of course, no proof, and it is notasserted by the prosecution.
There can to my mind, however, be no possible doubt that the accuseddeliberately on the three occasions indicated made statements which beknew to be false. It is contended on behalf of the accused that nomotive isshown, but I see noreason tocome toany finding as to his
motive, whether his motive was originally to deceive the Court or toconceal his own actions, or whether he made the statements recklessly,and on finding they led to trouble equally recklessly contradicted them,is, I consider, immaterial.
The statementsstanding abovemayappear tobeinsignificant,but
on takingthem in conjunctionwiththerestofthe accused's evidence
and the account of the Magistrateas tohow theywere made, it is dear
that they were of considerable importance, as being details elicited fromthe accused in his account of his own actions and in support of his ownstory.
I findthe accused guilty undersection190,Ceylon ' Penal Code.
I considerthe offence a seriousone,andoneforwhich a fine alone is
inadequate. His evidence was being given in connection with a veryserious charge brought by him, and if believed would have led to verysrious consequences for the accused.
1 sentence the accused to three months' rigorous imprisonment.
H. J. G. Pereira (with him Retnam), for appellant.
Jansz, G.G., for the Crown.
February 13, 1920. Bertram C.J.—
In this case the charge practically consists of three counts. In itslast two paragraphs it has certain statements in the alternative,that is to say, it alleges that the witness made two contradictorystatements, one of which must be false. With regard to these twocounts—if I may call them counts—the form of the charge iscontrary to the law as stated in R. v. Dias.1 It is not competentto the prosecution to charge certain statements in the alternative.The prosecution must commit itself to one which it alleges to befalse, and prove that it is false to the knowledge of the personmaking it. This objection does not apply to the first count. Thereit is definitely alleged that the accused made certain statementsknowing them to be false. It appeare, however, from an examina-tion of the facts, that the point to which these statements were
H1903) 6 N. L. B. 2S8.
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directed was one of no material importance, and that there can havebeen no real intention in the mind of the accused to mislead theCourt. He said that he was going on a particular journey by aparticular train, and that that tram stopped at a particular place,where he alighted. It appears that the train in question, which hesaid was a night train, did not stop at that particular place. He,thereupon, altered his statement, and said that he went bythe day train. It may be quite true that no ordinarily intelligentperson, who has travelled by a night train, does thinks afterwardsthat he has travelled by a day train. But whether or not thisactually happened, in the present case must depend upon what iscalled the mentality of the accused, which in this case wasobviously a very low one.
The real principle at issue, I think, is this. Loose statements inimmaterial introductory matters made in such a manner that it isobvious that the witness is not thinking what he is saying are notappropriate subjects for a charge of giving false evidence. Undersuch circumstances, as the mind of the speaker is not at the timeconscious that the statement is false (inasmuch as his mind is notreally directed to the question of its truth or falsity), it can hardly besaid that he knows or believes the statement to be false at the timehe makes it. It would be otherwise if the witness is speaking ofsomething which is obviously crucial to the case, inasmuch as thiswould be a point to which his mind would in the circumstancesnecessarily be directed. This is in accordance with the law as laiddown by Bonser C.J. in the case of Q v. Habibu Mohamadu,1 whichMr. Pereira has brought to my attention. The Chief Justice theresays:“ Of course, the materiality of a statement, although not of
the essence of an offence, may have a considerable bearing on theintention of the accused. The statements may be so entirely un-important that a jury may be justified in coming to the conclusionthat the attention of the accused was not called to what he wassaying, and that there was an absence of any intention to wilfullymislead them and to make an untrue statement.” I may furthersay that there appears to me to be good reason why the law does notallow contradictory statements to be charged in the alternative,except under the special provisions of section 439 of the CriminalProcedure Code. It is not the intention of the law to punish everyloose and unthinking statement which a witness makes in the box,but only such statements as are deliberately made with the intentionof bringing about a miscarriage of justice. That appears to me tobe the reason why it is incumbent on the prosecution to allegedefinitely the falsity of the statement on which the charge is based.I allow the appeal.
1 (1894) 3 O. L. B. 57.
ANANTHAM v. SAIADO