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QUEEN v. FERNANDO et al.D. C., Kegalla, 1,006.
Criminal Procedure Code, s. 440 (7)—Summary punishment for false evidence
in open Court—Irregularity—Evidence.
'Where a witness stated in the Police Court that the third accusedpulled the complainant out of the house, and in the District Court thatthe fourth accused did so, and the District Judge found him guilty ofcontempt of Court under section 440 (1) of the Criminal ProcedureCode,—
Held, that if the evidence given in the Police Court was false, theDistrict Judge had no jurisdiction to punish the witness for it.
The mere fact that .a-statement made before the District Judge doesnot accord with, and is even altogether inconsistent with, a statementmade by him in a Police Court, is no evidence that the witness hascommitted perjury in the District Court.
In- proceeding under section 440 (1), it is the duty of the DistrictJudge to find which of the statements made by the witness in the twoCourts is false.
And the District Judge has no right to re-model the evidence givenby a witness in a Police Court in order to convict him of perjury.
N this case of robbery and voluntarily causing hurt the District
Judge, after hearing the witnesses for the prosecution,recorded his opinion as follows:—
“ I will not call upon the accused for their defence, as the
evidence for the prosecution appears to be unreliable. The wit-“ nesses give a different version to the version given by them in“ the Police Court. I therefore acquit and discharge the accused.”
The District Judge then called upon three of these witnessesto show cause why they should not be convicted of contempt ofCourt (under section 440 (1) of the Criminal Procedure Code) fordeliberately giving false evidence within the meaning of section188 of the Penal Code. He read out to each of them the contra-dictory statements made by them before him and the committingMagistrate.
They had no cause to show.
He found them guilty of contempt of Court and sentenced eachof them to a fine of Rs. 25, in default whereof to one month’srigorous imprisonment.
Two of these witnesses appealed.
E. Jayawardena, for appellants.
Bonser, C.J., quashed the conviction and acquitted the appel-lants by the following judgments:—
In this case the appellant Appuhamv gave evidence for theprosecution at a criminal trial in the District Court of Kegalla.
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At the conclusion of the trial the District Judge records this: —“ I invite Appuhamy’s attention to the statement made to-day:
' ‘ The fourth accused Agonis pulled out the complainant,’ and he“ stated that the ‘ third accused dragged the complainant out,’ in“ the Police Court.
" I believe this witness Appubamy gave false evidence within“ the meaning of section 188 of the Code.
“ I call upon him to show cause why he should not be convicted“ of contempt of Court. He states: ‘ I have no cause to show.’ I“ convict him of contempt of Court under section 440 (1), Grimi-" nal Procedure Code, and sentence him to pay a fine of Rs. 25, in“ default to one month’s rigorous imprisonment.”
The defendant has appealed on the ground that there wasnothing recorded that justified the judge in making that orderand I agree with him. I gather that the alleged perjury was thatwhereas he stated in the Police Court that the third accusedpulled the complainant out of the house, he said in the DistrictCourt that the fourth accused pulled him out. Now, both ofthese statements might have been true. The District Judge hasnot found that one of them was untrue, nor which of them wasuntrue. It may very well be that Appuhamy told an untruth inthe Police Court and told the truth in the District Court. If thatbe so, the District Judge -had no jurisdiction to punish him forhaving committed perjury in the Police Court. The only case inwhich he can make the order is if he is satisfied that the witnesshas committed perjury before him; and the mere fact that astatement made before the District Judge does not accord and iseven altogether inconsistent with a statement made by him in aPolice Court is no evidence that the witness has committed per-jury in the District Court. I think the Judge must have had somevague and incorrect recollection of section 439 erf the CriminalProcedure Code, which provides—
‘‘If in the course of a trial by jury before the Supreme Court“ any witness shall on any material point contradict either ex-“ pressly or by necessary implication the evidence previously“ given by him at the inquiry before the Police Magistrate, it shall“ be lawful for the presiding Judge upon the conclusion of.such“ trial to have such witness arraigned and tried by the same jury“on an indictment for intentionally giving false evidence in a“ stage of a judicial proceeding.”
Here the witness may be convicted on the mere proof that hehas made inconsistent statements in two Courts, but that pro-vision does not apply to a trial in the District Court.
The appeal must be allowed.
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As regards the appeal of witness Podi Naide, his Lordship said,—
At the conclusion of the trial the Judge records thus: —
“ I invite Podi Naide’s attention to the statement made before“ me to-day, viz.:—‘ The first accused struck Thegis with the right“ hand and he put the sword in his left hand to assault him;’ and** ‘ whereas he stated in the Police Court,’ Thegis was beaten, and“ * that man is not here.’ I am of opinion that Podi Naide gave“ false evidence within the meaning of section 188, Criminal“ Procedure Code.
“ I call upon him to show cause why he should not be con-” victed of contempt of Court. He states he has no cause to“ show.
“ I convict Podi Naide of contempt of Court under section 440‘‘ (1), Criminal Procedure Code, and I fine him Es. 25 in default to“ one month’s rigorous imprisonment.”
In this case there was even less ground for making the orderthan in the last case, because I can see no ground whatever forcoming to the conclusion that the witness made an untrue state-ment in either Court. Before the Police Court he said: ” Tegiswas beaten, and that man is not here.” “ That man ” must mean” Tegis,” the only man referred to. Apparently the Police Magis-trate has remodelled the evidence given by the appellant in thePolice Court and makes it to read thus:—“ Tegis was beaten by aman, and the man who beat Tegis is not here.” The DistrictJudge had no right to remodel the evidence given by a witnessin a Police Court in order to convict him of perjury. But even ifhe made the statement in the form in which the District Judgeunderstood it, the District Judge had nothing before him to showthat the evidence the witness gave in the District Court wasuntrue.
The observations I made in the last appeal will apply in thiscase.
The appeal will be allowed.