047-NLR-NLR-V-33-KING-v.-DHARMASIRIWARDENE.pdf
AKBAR J.—King v. Dharmasitiwardene.
185
1931Present : Akbar J.
KING v. DHARMASIRIWARDENE.
110—D. C. (Crim.) Colombo, 9,874.
Perjury—Explanationsdemandedfrom accused—Onus wrongly placed—
Penal Code. s. 190.
A convictionfor perjurycannotstand wherethe onushas been-
wrongly placed and explanations demanded from the accused, when,there was no occasion to give any.
^^PPEAL from a conviction by the District Judge of Colombo.
H. V. Perera (with him Sri Nissanka), for accused, appellant.
Deraniyagala, Acting C.C., for Crown, respondent.
November 23, 1931, Akbar J.—
The appellant was charged on two counts with giving false evidence-at an election inquiry, held by the Supreme Court on October 30, 1930,by stating falsely as follows:—“It is not true that I went to see Baja-ratnam and Karunaratne with Mr. de Soyza, Brampy Bass, and K. G.Silva between the 2nd and 7th or at any time or that I received anypayment whatsoever in connection with this election.” On the second,count he was further charged with giving false evidence when he statedas follows:—" It is not a fact that I received Rs. 75 in connection withthis election.” The learned District Judge acquitted the accused on the-second count and when the case for the prosecution was closed, he askedthe accused’s Counsel to restrict himself only to that portion of the firststatement given above ending with the words “or at any time ”. Itwill be seen that the first count contains answers given to really three-questions. The Shorthand Writer who produced the evidence givenby the accused stated that he had taken down .the evidence in narrativeform, whereas answers are elicited from witnesses by questions put to the-witnesses by Counsel. So that it may well be that Counsel put one longstatement containing. really three questions and that the accused-answered the whole statement in the negative. As Counsel for the-
186
AEBAB J.—Ktng v. Dhanruuiriicardent:
accused point out, an answer given in this form may well have been.given by the witness with his mind concentrated on the last questionwhich contained the most serious charge against him, namely, that hehad received money illegally in connection with the election. ThereforeCounsel urged that it was not fair for the District Judge to have acquittedthe accused with regard to the most serious part of the statement andthen to have called upon him for his defence with regard to what after,all was the most trivial part of the alleged false statement. I thinkCounsel is clearly right in urging this plea in these circumstances (seeRex v. Lee *). I have no doubt at all that Crown Counsel who framedthe indictment regarded the answer as one answer given to three questionsrolled into one statement, for otherwise there would have been four.charges on the indictment which is against the Criminal Procedure Code.But apart from this objection it seems to me that on the facts the con-viction is wrong. The prosecution case really depends on the evidenceof Rajaratnam and Karunaratne who said that they were present on the,occasion when the accused came there along with the others. So thatin effect the two witnesses, Rajaratnam and Karunaratne, who werereally speaking to the same incident may be regarded as one witness.It was held by the Supreme Court in the case of King v. Sirimana 3that an accused should not be convicted of perjury on the uncorroborated.evidence of a prosecutor. The two witnesses, Karunaratne and Raja-ratnam, are the only material witnesses against the accused and theirwere bribed by Mr. de Soyza on the occasion in question and actuallyreceived payment thereafter. There is a notable contradiction betweenthe evidence of Rajaratnam and Karunaratne as to who actually intro-duced Rajaratnam to Mr. de Soyza. The accused gave evidence andstated that he went in a car with Brampy Bass to see Mr. ProctorAbeyanayake over a certain temple dispute in which Brampy Bass wasinterested as trustee and his evidence is corroborated by Mr. ProctorAbeyanayake. The accused stated that as they passed Karunaratne'sshop, Brampy Bass got down and went to Karunaratne *s shop andthat the accused did not go into the shop. His evidence is corroboratedby that of O. S. Perera who was the owner of this shop and under whom■apparently Karunaratne worked. Nothing has been urged against •
S. Perera and if he is believed the accused never went into Karuna-ratne’s shop. It is unsafe to convict on a charge of perjury on theevidence of witnesses of the character and standing of Karunaratneand Rajaratnam, in the absence of other corroborative material. AsJenkins C.J. stated in the case of Emperor v. Tilak 3 a conviction forperjury cannot stand where the onus has been wrongly placed andexplanations have been demanded from the accused when no occasionior them existed; he further remarked that the rule was that there must.be something in the case to make the oath of the prosecution witnessespreferable to the oath of the accused. As I have pointed out the evidence■of Rajaratnam and Karunaratne is really the evidence of one witness;moreover, it is tainted, and .against this evidence there is the evidenceof the accused and 0. S. Perera.
1 2 CampbeU 759.1 7 C. L. R. 7. s 28 {Bombay) X. L. R. 479.
AKBAB J.—Ismail t. Colombo Municipal Council.
187
The learned District Judge convicted the accused because he was notsatisfied with the accused’s statement that it was on June 8 thatthe incident of ‘Brampy Bass going into Karunaratne’s shop took placeand because he thought the truth was what the prosecution witnesses-said namely, that it was on June 7. In my opinion, as statedby Jenkins C.J., there was really no case for the accused to meet afterthe prosecution case was closed. On a review of the whole evidence*I have grave doubts whether the prosecution case is true and I wouldset aside the conviction and sentence, and acquit the accused.
Set aside.