020-NLR-NLR-V-29-THE-KING-v.-PODI-APPUHAMY.pdf
( 102 )
1927.
Present: Schneider J.
THE KING v. l'ODI APrUHAMY
<6—1). C. (Crim.) Kandy, 3,99-j.
Perjury—Tito contradictory statements—Materiality—Criminal ProcedureCode, ss. 439 and 440.
A witness can be. convicted for giving false evidence undersection 43!) of the Criminal Procedure Code only where liecontradicts the evidence given by him previously on a materialpoint.
Section 439 is not intended to he applied to cases where theoffence is of a grave nature and calls for a heavy sentence.
The scope and application' of sections 43!) and 440 of theCriminal Procedure Cede explained.
A
PPEAL from a conviction by the Additional Judge of Kandy.The facts appear from the judgment.
Meroyn Fonsela, C.G., for the Crown.
August 12, 1927. Schneider J.—
There are two appeals in this case by two witnesses who wereconvicted upon two indictments in one proceeding under section439 of the Criminal Procedure Code in connection with the trial ofthis case and each of whom has been sentenced to undergo 18 months'rigorous imprisonment and to pay a fine of Rs. 1,000, and in defaultof payment to undergo a further term of 18 months’ rigorous imprison-ment. They are both ordinary carters, and in all probabilityare not in a position to pay the fine, and will therefore each haveto undergo in all three years’ rigorous imprisonment. I noticethat their petitions of appeal have been prepared and’ lodged in■Court by the Jailer of the Bogambra jail. The petitioners aretherefore already suffering imprisonment under the order of theDistrict Judge. The sentences imposed being so startling by theirvery severity, I felt that I ought to examine the whole of the■ evidence in the case. There was no appearance for the appellants.I am indebted to Mr. Crown Counsel Fonseka for the assistance herendered to me as A mints Curiae, not only in studying the factsof the case, but for the references to certain authorities. Theappellants are lvalu Banda and Rattarankamy, two of the witnessesfor the prosecution. The charges against the accused in this casewere that on April 25, 1927, he committed housebreaking by enteringinto a rice store, and also committed theft of rice at the same timefrom that store. The accused was a carter employed by the occupiers
( 108 )
of the store, whose business would appear to have been forwardingrice to estates. On the night in question there were seven cartsin the " gala,” or halting place for carts, which adjoined the store.All the carter's had received their loads, and the poonac for theirbullocks, and should have been ready to start at an early hour thenext morning. The watchman of the store, when going his roundsat about 9.30 p.ji., discovered the accused near one of the" doors ofthe store, and that a space between the shutters of the door washeld open by a wedge of wood, driven in between the two shutters..He also saw in the hands of the accused the spoke of a wheel, whichhad probably been used in forcing the shutters apart to insert thewedge. The opening was large enough to insert a hand and toreach some bags of rice. He seized the accused and called out tothe other carters. Only the two witnesses,'who were also carters andwhose carts were in the ” gala ” that night, came up. The watchersays that three bags containing rice had been cut, and he foundabout quarter of a bushel of rice spilt inside and outside the roomand that he pointed out the spilt rice to the appellants. The bagsrhe says, were all inside. Kalu Banda said in the District Court thatwhen he went up the watcher showed him and Rattaranbamy some-spilt rice outside and a larger quantity spilt inside. Under cross-examination he said on this point that he saw the bags distinctlyand that the watcher showed him and Rattaranhamy the cuts inthem, and that there ware only a few grains of rice inside. In theDistrict Court Rattaranbamy stated that he saw the bags, but didnot see if they were cut; but that the wa-tcher told them that thebags were cut, but did not show him the cut bags. The indictmentagainst Ivalu Banda was that he had made twd contradictorystatements, to wit: —
1927V
SCHNKIDEK
J.
The King-v. PodiAppu.hr.my
In the Police Court on May 2, 1927,, “ I did not see any rice on theground outside, and I cannot remember whether watchertold us that the bags had been cut,” and in the DistrictCourt on June 9, ” The watcher showed us some spilt riceoutside, and I saw the bags distinctly and the watchershowed us cuts in. them.” To this indictment he pleaded“ I forgetfully said so.”
The indictment against Rattaranhamy was that he too madetwo contradictory statements. One 5n the Police Courton May 2, 1927, “ Watcher showed me and Kalu Bandathese cut bags,” and the other in the District Court onJune 9, 1927, “ The watcher did not show the cut bags tome.” To that indictment he pleaded “ I do not remember.*'
The reasons given by the learned District Judge for holding theappellants guilty are that the case against the accused was anentirely false one, fabricated by the watcher, which the appellants-
29/11( 104 )
1927.
SCHXEI l>Kft
J.
The Kingv. Pod*Appuhauty
had agreed to support by their evidence, and that the statements arecertainly contradictory the one of the other. Those reasons aloneare notsufficient tosustain aconviction. It is obvious that the
DistrictJudge hadfailed tonotice that thespecial procedure
provided in section 489 is applicable only in those cases where thewitness contradicts the evidence previously given on “ any materialpoint.” He has failed to find expressly that the appellants contra-dicted their previous evidence upon any material point. Does hisfinding that the two statements made by each of the appellant'sare in fact contradictory one' of the other amount to such a finding?
[ do not think it does. The mere fact that the statements are'contradictory is notall thatmust he takeninto consideration.
There are . several other facts which have a material bearing. Theoffencewas allegedto havebeen committedon April 25, and
within a few minutes of its detection it is alleged that the watcher■took the accused before the manager o£ the store and that tneappellants accompanied him. The manager reported the theft tothe Police immediately. The Police Sergeant, who was called asa witness at the District Court trial, stated that he visited the sceneof the offence the next morning and found the wedge in the positiondescribed by the witnesses, and spilt rice inside, and outside, theroom. He must have questioned the watcher and the appellants,so must the manager before he wrote to the Police. The watcher■and the appellants very likely discussed the case both before andafter the Police Court inquiry amongst themselves and with others.There was an interval of nearly five weeks between the inquiry andthe trial. In the circumstances, unless the witnesses were speciallytutored, is it to be wondered that there should appear in theirtestimony the contradictions mentioned in the indictment ? Isthere any unreasonableness in their plea that the contradictionsin question arc really due to what they call forgetfulness, but whichmight more correctly he dedscribed as a confusion of recollections.as to what was seen and what heard by them at different stageswhen the facts were inquired into, or they were questioned as to•their knowledge, and as to what had actually been said or done ?I find no difficulty in accepting the explanations offered by thewitnesses in answer to tho indictment. In my opinion their explana-tions should have been accepted, and for that reason their convictionis bad. In my opinion the contradiction by them in the DistrictCourt of the evidence they gave at the inquiry by the PoliceMagistrate was not on any material point. If their explanationsbe accepted, it would appear that they stood by their statementsmade at the inquiry. In fairness to them, the contradictions inthe District Court should have been expressly put to them whilethey were giving evidence. If that had been done it would seemthat they would have stated that what they said at the inquiry
( 105 )
must be correct, and not what they, through forgetfulness, said inthe District Court. I see no reason why their explanations shouldnot have been accepted. There is absolutely nothing to show whythe watcher should have made a false charge against the accusedor why the appellants should have “ agreed,** as the District Judgeputs it, to support him. The accused himself does not say that' the watcher or any one else had made the charge falsely againsthim. He has not disclosed what his defence is. He has beencontent to confine his plea to a bare “ not guiltv.M From some state-ment made by his Counsel at the trial it would appear that the*defence admitted that the accused had gone to the verandah ofthe store, and that he had been seen there. I find it difficult tabelieve that the charge against the accused was primd facie a falseone, but even if it be false J do not think the appellants should*have been convicted upon the materials before the District Judge..I set aside their convictions and acquit them.
There is another reason for which their convictions might beset aside, and that is that both the accused were tried togetheralthough upon separate indictments. The charges were different..But that procedure, it might be argued, has not prejudiced them..Even so I think that the irregularity was of such a grave naturethat the convictions should be set aside on that ground too. Ifthey had been set aside on that ground, the proper order wouldhave been for a fresh trial. I prefer therefore to rest my decisionon the other reasons given by me..
These appeals call for some observations upon the procedureprovided in section 439 of the Criminal Procedure Code and the-penalty to be imposed upon a conviction under that procedure.
The Penal Code of 1883 in section 188 defined what giving falseevidence was, and provided the penalty in section 190. In 1895there came into operation the Oaths Ordinance, No. 9 of 1895. In.section 12 it provided for a person to be punished summarily asfor a contempt of the Court if he gave false evidence, in the opinion,of the Court, in any judicial proceeding before it. The penaltyimposable upon a conviction under that section was light—compared to the penalty imposable under section 190 of thePenal Code. The provision in section 12 was embodied verbatimexcept for a few verbal adaptations in the present Griminal ProcedureCode, No. 15 of 1898, which came into operation in March, 1899rsuperseding the Code No.. 3 of 1883. But section 12 was leftuntouched even as to the references to the sections of the repealedCode leaving those to be governed by the general provision insection 3 of the present Criminal Procedure Code. In 1900 irrthe case of The Queen v. Jasik Appu,l Browne A.P.J. held that airindictment charging an accused person with. having intentionally
1 4 N.L. R. 18.
ifcsV
SCHKXaDES
J.
The Ki*v. PodtA ppuhamg
( K* J
1927.
SCHNEmER
J.
The Kingv. PodiAppohamy
given false evidence by making two irreconcilable statementswithout stating which was false, was'good, and that it was unnecessaryto offer any evidence to negative either statement. This decisionwas overruled by the decision of the Collective Court in 100-1 inThe King r. Dion.' There it was held that such an indictmentwas bad,* and that the offence was not established except- uponproof in terms of sections 188 and 190 of the renal Code. In thejudgments of Layard O.J. and Middleton J., section 489 of thepresent “Criminal .Procedure Code is referred to ns granting poweronly to the Supreme Court to punish for giving false evidence in•cases of two contradictory statements. From these judgmentsI conclude that the present form of section 489. which includesDistrict Courts, was given to it after the date of that judgment,and by an amendment introduced probably by section 2 of theOrdinance No. 2 of 1906. I am unable to verify the correctnessof this conclusion with the Ordinances to hand in my own library,which are the only ones available to me at present. If my conclusionbe correct, it would suggest that the present form of section 489was given to it to meet in some degree the effect of the decision ofthe Collective Bench by conferring on District Courts also a powerwhich till then was confined to the Supreme Court.
It seems to me that there is a close connection between sections439 and 440 of the Criminal Procedure Code inasmuch as bothcontain special provisions for the summary trial of persons givingfalse evidence within the meaning of the same section of the PenalCode—section 188. Section 440 appears to have been intendedfor cases of a more venial nature than those for which section 489was intended. In proceedings under section 440 the Court must"have reasons for coming to the opinion that the accused has givenfalse evidence, not from evidence the Court might call for thespecial purpose of proving that false evidence was intentionally,given, but from what has taken place in connection with the judicial' proceeding held before the Court. The fact that the accusedmade two irreconcilable or contradictory statements would notbe sufficient. See SivakolunHhu v. Chelliahr Under section 439the trial must be upon an indictment indicating that the procedurehas to be more formal, but while under section 440 the offenceis made punishable as a contempt of the Court and the penalty isprescribed. Under section 439 the offence is described as intention-ally giving false evidence, and no special provision is made as regards-penalty. Obviously, the inference from that omission is, that thepenalty imposable is that prescribed generally in the Penal Codefor intentionally giving false evidence. But it introduces a materialvariation as regards the necessary evidence by permitting the proof‘■of the charge to be made by the inference to be drawn from the1 6 K. L. it 258.2 {1910) 13 .V. L. R. 289.
( :W )
two contradictory statements that the one or the other must befalse either to the knowledge or belief of the accused, or that liedoes not :believe one or the other of them to be true. Section 440contains an express provision that the Court, in lieu of exercisingthe power given by the section, might transmit the record to theAttorney-General or proceed under the provisions of section 38uof the Criminal Procedure Code.. That provision does not appearin section 439. That is another indication that the proceedings-under section 439 were intended in the special circumstances to<take the place of the inquiry and trial necessary for proceedings;upon a charge under section 190. Such being the case, I do notthink it would be correct to say that upon ,a conviction on an'indictment under section 439, the penalties prescribed by section190 cannot be imposed. But I do think that section 439 was notintended for those cases where the offence is of a grave nature andcalling for a heavy sentence. No Court can take cognizance of anoffence punishable under section 190, except with the previoussanction of the Attorney-General, or on the complaint of anotherCourt. See section 147 (1) (6) of the Criminal Procedure Code-That means an inquiry and a committal upon an indictment in thename of the Attorney-General. Those safeguards have no existencein proceedings under section 439, and it therefore does seem desirablethat in those cases calling for a deterrent punishment a Court should!not exercise its powers under section 439.
1927.
Schneider
J.
The Kingv. PodiAppuluwvj
Set aside.