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Present : Jayewardene A.-T.
KANTHAR MURUGESU v. KANTHIAH SIVAGURCi.
486—P. C. Mallakam, 3,484.
Charyc of perjury—One of the statements obviously false—Materiality ofthe inconsistent statements—Criminal Procedure Code, s. 440.
Where a witness makes two contradictory statements one ofwhiefe is obviously false, he may be punished summarily for perjuryunder section 440 of tbe Criminal Procedure Code.
It is not necessary that the false statement should be upon amaterial poiDt in the case.
Spencer Rajaratnam, for complainant, appellant.
August 10, 1926. Jayewardene A.J.—
In this case the appellant appeals against his conviction undersection 440 of the Criminal Procedure Code and a fine of Es. 50.The appellant is the complainant in the case, and in the course of hisexamination he stated on oath “ I have not come to Court before ;
(1926) 21 N. L. R. 282.
c 216 )
192$.I have come to’watch cases; 1 have not come to Court as a party in
Javkwar- any case.’* Then in examination he said “ accused and his wifedene A.J. sued me in a dowry case. I filed answer."
Kanthar jn view 0f these two contradictory statements the learned Magis-
Jjf VTUQG8U. V.U°
Kanthiah trate called upon the complainant to show cause why he should not-Sivnqvru |3e dealt with under the section I have already referred to. Thecomplainant said “ I forgot." The learned Magistrate consideredthis explanation unsatisfactory for reasons given in the judgmentand sentenced him to pay a fine of Rs. 50. He appeals and on hisbehalf several legal objections are taken.
Reliance is placed on the case of Sivakolunthu v. Ghelliah,1 where itwas held by a former Chief Justice of this Court that a Magistratehas no power to punish summarily as to contempt of Court a witness,for making two contradictory statements. The principle laid downin that case might be accepted as a useful rule of guidance, but inthat case the statements made by the complainant, who was fined,showed that either of the inconsistent or contradictory statementsmight have been true. It is not a case in which the falsity of one ofthe statements is obvious.
In the present case the falsity of the statement of the accused thathe did not come to Court as a party in any case is manifestly untruein view of his admission that he was a party in a civil case. In myopinion, therefore, the case of Sivakolunthu v. Ghelliah (supra) has noapplication to the present case. Then it is argued that the point onwhich false evidence is given must be material to the case underinvestigation. A reference is made to the case of Gooray v. TheCeylon Para Rubber Co.t Ltdr That was a dictum of Sir Thomas deSampayo in the course of his judgment in that case, but the decisionof that case did not depend upon the fact that the statement madewas not material to the case. The learned Judge came to theconclusion that the explanation offered by the witness, who was theappellant, was in the circumstances of that case a satisfactory one.The witness stated " I have forgotten," and the learned Judgeobserves " I am not surprised that the man forgot, or had no clearrecollection of one small detail of a transaction which took placethirteen years before, and which, according to the District Judgehimself, was carried through by his brother Medduma Bandara. Tthink either the appellant's explanation should have been accepted,or the matter should have been overlooked as not worth noticing."
I may point out that under the definition of false evidence as givenin the Penal Code, and which has been incorporated into section 440expressly, it is not required that the false statement should be on anymaterial point. I believe the English law is different,, and requiresthat the false evidence or false statement should be on a materialpoint. In considering the sentence the materiality oi otherwise of
* 13 X. L. It. 289.
23 X. L. R. 321, alp. h2C
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the statement can be taken into consideration. In view of tbecharacter that the learned Judge gives the complainant I do notthink that he deserves very much sympathy. I may also point outthat in his evidence before the Magistrate he stated that he wasfifty-five years of age, and in his petition of appeal he says he issixty years of age and not of sound memory, and was thereforeconfused in the witness box. I think the appellant is scrupulous.
In any case, I think the fine of Rs. 50 is excessive, and I wouldreduce the fine to Rs. 25, or in default one month’s rigorousimprisonment.
Conviction affirmed; Sentence varied.
KANTHAR MURUGESU v. KANTHIAH SIVAGURU