005-NLR-NLR-V-04-THE-QUEEN-v.-JASIK-APPU.pdf
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1000.
January 22.
THE QUEEN r. JASIK APPU.
G.t Galle, 12,777.
Giving falsa evidence intentionally—Penal Code, 8. 190—Form of indictment—Two irreconcilable statements — Evidence negativing truth of eitherstatement.
In a prosecution for intentionally giving false evidence, under section190 of the Penal Code, the indictment set forth two irreconcilablestatements made by the accused, and averred, according to the formgiven in the Procedure Code, 1883, “one of which statements you eitherknew or believed to be false, or did not believe to be true/'
Held that such an indictment was good, and that in cases where the twostatements are so irreconcilable that one or the other must necessarilybe false, it was unnecessary to offer any evidence to negative eitherassertion.
T
HE indictment in this case of intentionally giving falseevidence ran as follows : —
Thatyou, onorabout the 5thday ofApril, 1899, atBalapitiya,
in theDistrictofGalle, in thecourseof the inquiryinto P. C.
case 18,930 before A. C. Gunetilaka, Esq., Police Magistrate ofBalapitiya, stated in evidence as follows:—" Whilst I, my mother44 Pol Babahamy, my cousin Aralishamy, and my younger brother44 Dedrick Appu were returning from the boutique, we met these
44 accusedsThereupon an altercation followed between my
41 mother and the first accused (meaning Wijemuni Marthelis).44 The first accused snatched a kattl from the second accused44 (meaning Wijemuni Amadoris) and aimed a blow with it on my44 mother, when I interfered and pushed the first accused. When41 firstaccusedwas advancing towardsmy mother, Ithought he
44 wasgoing todosome harm toherI did not hold the katti.
44 I held the first accused’s hand with which he held the katti.44 It was with my right hand I held the first accused, then he cut me44 on my left and ran away. When I got the cut, I had hold of his44 hand.” And that you, on or about the 3rd day of July, 1899, atGalle, in the course of the trial of the said case before F. J. deLivera, Esq., District Judge, stated in evidence as follows: —44 This hurt was caused when we were going to Umaris’s boutique44 to buy provisions. The hurt was not caused when we were
44 returning from Umaris’s boutique We had bought no
44 provisions I did not hold the accused at all. I did not
44 hold his hand. I did not hold accused’s hand; that is true.”One of which statements you either knew or believed to be falseor did not believe to be true, and thereby you have committed anoffence punishable under section 190 of the Ceylon Penal Code.
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The accused admitted that he made the two different state-ments disclosed in the indictment, but said that he made them bya mistake.
The District Judge found him guilty *4 of the charge laid in the** indictment ” and sentenced him to six months’ rigorous imprison-ment.
He appealed, but did not appear in support of his appeal whenit came on for hearing on the 18th January, 1900.
In his appeal petition it was stated that it was not impossiblefor an illiterate person like the accused to forget the statementhe made at the inquiry, and subsequently to make a different andcontradictory one with regard to the same matter at the trial,especially when a period of about three months had elapsed fromthe date of the inquiry in the Police Court of Balapitiya up to thetrial in the District Court of Galle; and a reduction of sentencewas prayed for.
Ramanatkan, S.-G., appeared for the Crown and referred toD. C., Galle, 12,370, decided on 7th June, 1897; and Browne,
P.J., referred to D. C., Galle, 12,533.
Cur. adv. vult.
22nd January, 1900. Browne, A.P.J.—
The indictment in this prosecution for an offence againstsection 190 of the Penal Code was drawn in the alternative form,which was originally prescribed by section 509 of the CriminalProcedure Code of 1883, and Schedule III., 22, 2, fourthly, thereof.This requirement was not re-enacted in the new Procedure Code,and much therefore of the comments of Withers, J., in 12,533,Criminal,D. C., Galle, S. C. M.,29th March, 1898 (2 Vand. Rep. 80),no longer apply. Mr. Solicitor has informed me that the indict-ment was designedly presented in this form in order that itmight be ascertained whether, although no longer prescribed, orsanctioned, it may not still be apposite. In view of its havingbeen approved in India (Mayne 511, Starling, 6th edition, p. 234),and therefore followed by Lawrie, A.C.J., in 12,370, D. C., Galle(S. C. M., 7th June, 1897), I see no objection to its use " where the“ two statements are so irreconcilable that one or other must“ necessarily be false.M In such a case it is unnecessary to offer, inaddition to the statements themselves, any evidence to negativeeither assertion. The statements on the subject of this prosecutionwere entirely irreconcilable, and I therefore affirm the conviction.
1900.
January 22.