049-NLR-NLR-V-46-IN-re-SEEMAN.pdf
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WIJEYEWABDENE J.—In re Seeman.
1945Present: Wljeyewardene J.
IN re REEMAN.
761—M. C., httnitara, 23,906.
Criminal Procedure Code, s. 440 (1)—Perjury by Headman—Reference todiary—Oral testimony at variance icith entry in diary—Appropriatecase for summary punishment.
Where a Village Headman, while giving evidence, read the entry madeby him in his diary and told the court deliberately something differentfrom what was recorded by him—
Held, that it was an appropriate case for summary punishment forperjury under section 440 (1) of the Criminal Procedure Code.
y^I'PEAL against a conviction by the Magistrate, Kalutara.
H. V. Perera, K.C. (with him U. A. Jayasundera and S. E. J. Fernanda),for the petitioner.
Cur. adv. vult.
March 5, 1945. Wijeyewardens J.—
This is an appeal against the summary conviction of the petitionerunder section 440 (1) of the Criminal Procedure Code. He has also filedpapers in revision.
The case in which the petitioner, a Village Headman, gave evidencewas one filed by the Police against two persons, Dimitius and Pabilis,for tie theft of a bicycle. A warrant had to be issued for the arrest ofDimitius who surrendered to court about six months after the filing ofthe plaint. The trial had to be postponed once as Dimitius was absentand the petitioner stated to court that he knew Dimitius was ill. Whenthe trial was taken up ultimately, the petitioner said in the course of hisexamination-in-chief that the two eye witnesses of the thief. Sirisena andVelin, stated to him that “ a man like Dimitius removed the cycle ”.The Magistrate, thereupon, questioned him regarding his dairy andrepeated the question as to the statement made to him bv Sirisena andVelin. Then the petitioner referred to his diary and said, “ Sirisena andVelin told me that a man like Katuwellagoda Dimitius rode away on thecycle ”. The diary, however, when examined showed the entry " Siri-sena and Velin said Katuwellagoda Dimftaus rode away on the. cycle
De Zoysa v. Kulatilehe.
148
The Magistrate acquitted the accused in the case and called upon thepetitioner to show cause why he should not be punished under section440 (1). The petitioner’s explanation was, “ I gave ■ evidence accordingto the record in my diary—my memory was no.t fresh'
The Magistrate convicted the petitioner, as he was of opinion thatthe petitioner gave false evidence deliberately in order to make it unsafeto act on evidence of identification of Dimitius by the other witnesses.I would in this connection refer to the observations made by WoodRenton C.J. in The King v. Sedris 1—
“ Too little attention is paid, I think, sometimes in cases of this kindto the language of section 440 of the Criminal Procedure Code. Itfixes the penalty which it provides, to evidence which is false ‘ in theopinion of the court ’. (Treat weight should be attached, in consider-ing case of this kind on appeal, to .the importance attached by thelegislature itself to the opinion of the trial Judge as to the character'of any evidence whose veracity is impugned.”
It is, no doubt, true that Judges should act very cautiously in exercisingthe summary powers given by section 440 (1) but that does not meanthere should be any reluctance on the part of Judges to exercise thesepowers in an appropriate case. In the present case the petitioner did notpurport to rely on his memory in giving this particular evidence, as isshown by the record of the Magistrate and the explanation given by thepetitioner himself. He read the entry made by him in his diary andtold the court deliberately something different from what was recordedby him. Independently of the opinion expressed by the learned Magis-trate I have reached the decision that the petitioner made a deliberateattempt .to mislead the court and gave false evidence within the meaningof section 188 of the Penal Code.
I dismiss the appeal and refuse the application in revision.
Appeal dismissed-