010-NLR-NLR-V-19-DIAS-v.-DANO-et-al.pdf
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1M6.Present: Ennis J.
DIAS v. DANO et al.
453—454—P. C. Qdlle, 2,042.
Abetment—Giving false evidence to support a false charge—Abetment ofthe institution of a false charge.
To convict a person of aiding and abetting the institution of afalse chargeit isnot sufficientto prove thathegave evidencein
support ofthefalse charge.There mustbeevidence ofa
conspiracy to give false evidence,' prior to the institution of thefalse charge.
FJlHE facts appear from the judgment.
J. S. Jayewardene, for appellants.—The evidence shows that theaccused gave evidence in support of the false charge. If theirevidence was false, they may be guilty of giving false evidence.
i 8. C. Min., Feb. 7, 1916.* 8. C. Min., Sept. 39, 1914.
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But they cannot be said to have abetted the institution of thefalflp charge. Counsel cited Gout’s Indian Penal Code 451; Moyne'sCriminal Law of India 475; 18 W. R. 28.
May 19, 1916. Ekkis J.—
In this case the two accused appellants were chargod andconvicted of aiding and abetting the institutipn of a false chargeby ^ft first accused, an offence under section 208 of the Penal Code.It is urged by the counsel for the appellants that a person couldnot be convicted of abetting* the offence of instituting a false chargeon evidence which show's only that he gave evidence in support ofthe charge considered to be false. Certain Indian oases in supportof that proposition were cited. Mayne, in the third edition of hisCriminal Law of India, page 475, comments on this question asfollows: “ The decision was, no doubt, right in the particularinstance stated. Where there was. no case whatever against the.prisoners, except that they had given evidence which the Court"considered to be false, it is plain that they ought to have beencharged with that as a substantive offence. It is an evasion of thelaw to twist a primary into a secondary offence, merely for thepurpose of introducing a different jurisdiction, or a lower scale of
punishment It is quite true that assistance given to
another, subsequent to and independently of the substantiveoffence, does not amount to an abetment of it. f But if the assistancewas given as part of the original schema for committing the offence,and for the purpose of furthering or facilitating it, the case wouldfall under the second and third clauses of section 107. For instance,the mere harbouring of- a murderer is punishable under section 212,and hot as an abetment of the murder. But if it were arrangedthat a .murder should be committed at a particular place at night,and that the prisoner should leave his house door open so that themurderer'might at once slip in and so escape observation, there canbe no doubt that the proper way to charge the offence would1 be asan abetment'
I would follow this exposition of the law on the subject. Theremust be some evidence of a conspiracy to give false evidence, priorto this false evidence being given, before a person can be convicted-of abetting the offence of instituting a false charge. In the presentcase the charge against the appellants is that they committed the*offence charged on January 24 before the Sub-Inspector of Badigama.A petition by the principal offender, dated January 24,. hs& beenfiled in the case. In. that petition the first accused states thatno one in the village will give evidence against the Peace Officer.This statement negatives any suggestion that there was- a conspiracy,,prior to the complaint, to support the evidence. In the circum-stances, them is an absence of evidence that the accused, before9-
1M6.
Dias tvDano
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ISkkxs J.
Dim «.
D<*no
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the false charge was instituted, conspired to shoot; and, followingMayne’s exposition of the law, I would hold that the evidenceonly that the accused gave evidence in support of the false chargeis insufficient to the conviction. I accordingly set aside theconviction.
Set aside.