S. PEDRICK SINGHO et al., Appellants, and THE KING, Respondent

053-NLR-NLR-V-52-S.-PEDRICK-SINGHO-et-al.-Appellants-and-THE-KING-Respondent.pdf

[Court of Criminal, Appeal]
1950 Present: Dias J. (President), Windham J. and Gunasekara J,S. PEDRICK. SINGHO et al., Appellants, and THE KING,
Respondent
Appeals 63-65 with Applications 168-170 of 1949S. C. 33—Mt C. Horana, 7,848
Court of Criminal Appeal—Perjury—Burden of proof—Measure of punishment—
Depositions—Effect of irregularity tin taking down depositions—Calling evidence
after case for prosecution is closed—Criminal Procedure Code, ss. 299, 429;
439.'
In a charge, under section 439 of the Criminal Procedure Code, for givingfalse evidence, the burden of proof is on the prosecution to establish beyondreasonable doubt (a) that the witness made the statements set out in the indict-ment in the Court of trial and in the Magistrate’s Court, (b) that such statementswere made on oath or affirmation, (c) that such statements were on “ materialpoints ”, and (d) that either expressly or by necessary implication the statementmade by the witness in the Court of trial contradicts that given before theMagistrate. It is not necessary for the prosecution to go further and eitherallege or prove which of the two statements is false. The evidence, however,must be legally admissible evidence.
Where the deposition of a witness has been irregularly recorded by theMagistrate in breach of the provisions of section 299 of the Criminal ProcedureCode, such a deposition is not legal evidence upon which the Court or jury canact in order to convict the witness. A conviction based on such evidence isliable to be quashed.
It is, however, open to the prosecution, where such an irregularity exists,to prove by other evidence in terms of section 299 (6) that the requirements ofsection 299 were, in fact, complied with. This can be done by calling theMagistrate and the interpreter of the Magistrate’s Court, or by the cross-examina-tion of the witness.
It is, however, irregular, after the case for the prosecution is closed, for evidenceto be led under section 299 (6) in order to fill up gaps or to remedy defects inthe ease for the prosecution.
Under section 439 several witnesses should not be tried together, Eachwitness should be indicted and tried separately.
The provisions of section 439 are intended to provide a prompt punishmentfor perjury. A Judge of Assize may award a sentence up to the maximumprescribed by section 190 of the Penal Code. There is no warrant for givingthe provisions of section 439 of the Criminal Procedure Code a restricted inter-pretation. B. v. Podiappuhamy (1927) 29 N. L. R. 103, not followed.
A PPEALS, with applications for leave to appeal, against certainconvictions in a trial before a Judge and Jury.
M. M. Kumarakulasingham, with L. C. Gooneratne, for the appellants.J. A. P. Cherubim, Crown Counsel, for the Crown.
January 30, 1950. Dias J.—
W.Aron Singho stood his trial for the murder of his wife Baby Nona.Amongst the prosecution witnesses were these three appellants.
Jinadasa is the brother of Aron Singho. S. Pedrick Singhoand Sopihamy were the brother and sister of the deceased woman. Thesepersons are said to have been dependent on Aron Singho’s bounty fortheir maintenance.
The trial of Aron Singho commenced before Basnayake -J. and anEnglish-speaking Jury on November 21,c‘1949, and was concluded on thefollowing day, when the jury unanimously acquitted him. The threeappellants were the chief witnesses for the prosecution. It is allegedthat the appellants at the trial before the Supreme Court retracted orcontradicted the evidence given by them before the Magistrate in materialrespects and thereby made it impossible for the jury to reach any verdictother than one of acquittal.
After the verdict of the jury had been recorded, the witnesses W. D.Jinadasa, S. Sopihamy and S. Pedrick Singho were called up. Thelearned Judge addressing them said:
‘' I have directed the Registrar of this Court to indict you undersection 439 of the Criminal Procedure Code for giving contrary evidence.I remand you till you are indicted. ”
In making this order the learned Judge was exercising the discretionconferred upon him by section 489 of the Criminal Procedure Code,which reads as follows : —,
“ (1) If in the course of a trial in any District Court or of a trialby jury before the Supreme Court any witness shall on any materialpoint contradict either expressly7 or by7 necessary7 implication theevidence previously7 given by7 him at the inquiry7 before the Magistrate,it shall be lawful for the presiding Judge, upon the conclusion of suchtrial, to have such witness arraigned and tried on an indictment forintentionally7 giving false evidence in a stage of a judicial proceeding.In a trial before the Supreme Court the indictment shall be preparedand signed by the Registrar, and the accused may7 be tried by the samejury7. In a trial in a District Court the indictment shall be preparedand signed by the Secretary7 of such court.
At such trial it shall be sufficient to prove that the accusedmade the contradictory7 statements alleged in the indictment, and itshall not be necessary to prove which of such statements is false.
The presiding Judge may7, if he considers expedient, adjournthe trial of such witness for such period as he may think fit, and may-commit such witness to custody or take bail in his own recognizanceor with sureties for his appearance. In the Supreme Court suchadjourned trial shall be before the same or any other jury as the Judgeshall direct.”
There is no section corresponding to s. 439 in the Indian CriminalProcedure Code upon which our own Code is based. In the CeylonCriminal Procedure Code ot 1883, there was no section correspondingto s. 439 which first came into existence in 1898 when our present Codebecame law. That section only applied to trials before the SupremeCourt. In view of certain judicial decisions, by Ordinance No. 2 of2906, that section was repealed, and a new section in its present formwas substituted, making it applicable both to criminal trials in theSupreme Court and in the District Court.
It is convenient to consider the cases of these appellants together,although they were correctly charged and tried separately.
<*
Appeal 63 1949—S. Pedrick Singho:
The proceedings against this appellant Pedrick Singho commencedon November 22, 1949. He was undefended. Crown Counsel appeared,presumably as amicus curiae, to support the indictment which was inthe name of the presiding Judge. The indictment was signed by theClerk of Assize who under s. 442A (3) of the Criminal Procedure Codeexercises the power, duties and functions of the [Registrar of the SupremeCourt.
The prosecution commenced and ended with the evidence of the Clerkof Assize. He produced a copy of the evidence given by the appellantat the trial before the Supreme Court and also the -Magistrate’s recordof the non-summary inquiry.
At the trial of Aron Singho before the Supreme Court this appellantstated on oath:
“ The accused (Aron Singho) did not come to the cattle shed at about10 p.m. He did not tell me that a certain man had visited the houseearlier and ask me to be on the watch. The accused did not tell methat the deceased was pregnant, and that he must find out who isresponsible for it. I do not know whether the knife PI belongs to theaccused.”
It is common ground that this was material evidence.
The Clerk of Assize further stated:
“ At the [Magisterial inquiry this prisoner (i.e., the appellant PedrickSingho) has said ‘ The accused (Aron Singho) came to the cattle shedand told me a certain man had visited his house earlier and asked meto be on the watch. The accused told me that the deceased waspregnant and that he must find out who was responsible for it. Theknife PI belongs to the accused■
In a proceeding under s. 439^of the Criminal Procedure Code the burdenof proof rests on the prosecution to establish beyond reasonable doubt
that the witness made the statements set out in the indictment inthe Court of trial and in the Magistrate’s Courts, (6) that such statementswere made on oath or affirmation, (c) that such statements were on“ material points ”, and (d) that either expressly or by necessary impli-cation the statement made by the witness in the Court of trial contradictsthat given before the Magistrate. It is not necessary for the prosecution
to go further and either allege or prove which of the two statements isfalse—s. 439 (2). The evidence, however, must be legally admissibleevidence—R. v, Aziz x.
5 36 Gal. 808.
Unfortunately, this appellant was undefended. It now transpiresthat the deposition of this appellant in the Magistrate’s Court has beenrecorded irregularly.
S. 299 of the Criminal Procedure Code provides the procedure to befollowed by Magistrates when recording depositions in a non-summaryinquiry. The evidence of each witness must be read over to the witnessby the Magistrate in the presence of ^he accused person, if in attendance,or of his pleader, if he appears by pleader, and shall be corrected, ifnecessary, either when the evidence is completed, or at some time beforecommitment—s. 299 (1). In the ease of witnesses who do not understand"English, the evidence given by them must be interpreted to them in thelanguage in which it was given—s. 299 (3). Thereafter, it is the dutyof the Magistrate to append a certificate in the prescribed form to thedeposition—s. 299 (5).
Such a certificate has not been appended to the documents purportingto be the depositions of the appellants.
S'. 299 (6) of the Criminal Procedure Code provides that:
“ The absence of such a certificate in a deposition shall not be a barto the deposition being received in evidence in any case in which itis desired to tender the deposition in evidence, if it is proved by otherevidence that the other requirements of this section were, in fact-,complied with. ’ ’
There is, however, no proof at all in the case of two of these depositionsthat they were, in fact, read over or interpreted to the two male appel-lants in the presence of the accused, Aron Singho, or at all—s. 299 (1).There is no proof that the Sinhalese letters appended to two of the deposi-tions are the signatures of the male appellants—s. 299 (4). The pro-visions of s. 424 of the Criminal Procedure Code cannot apply to thedeposition of the appellant Pedriclc Singho because no extrinsic evidencewas tendered to remedy the defect. S. 80 of the Evidence Ordinancealso has no application to the facts of this case.
The authorities show that a defective deposition of this kind cannotbe utilised in order to convict a person of perjury. It was held in R.Gossami 2 under the corresponding section of the Indian Criminal Pro-cedure Code that the failure to observe the provisions of the section isan informality which renders the depositiqp inadmissible in a subsequentprosecution for perjury. In R. v. Mohendra 3 where the deposition wasnot read over to the witness in the presence of the accused, it was heldthat no prosecution for perjury would lie against the witness. The
decisions in R. v. Jyotish * and R. v. Rakhal 5 are to the same effect.
«
It might have been possible when this appellant gave evidence for theprosecution in cross-examination to have proved the regularity of thedeposition, but this was not attempted. The appellant was not evenasked whether the signature in the Magisterial record is his signature.
We are, therefore, constrained to hold that the statement of the appel-lent Pedrick Singho in the Magistrate’s Court has not been proved.Therefore, there was no case for this appellant to meet, because an essen-tial ingredient necessary to establish the charge against him was notestablished. The statement on oath in the Magistrate’s Court which thisappellant is alleged to have contradicted was never proved. The con-viction of the appellant must, therefore, be quashed. We, however,leave it open to the authorities, should they desire to do so, to take anyfurther steps against the appellant for his alleged perjury.
Appeal 64/194:9—TV. D. Jinadasa :
The trial against the appellant W. D. Jinadasa began on November 22,1949, and was continued on November 24, 1949. The prisoner had theadvantage of being defended by learned counsel.
The Clerk of Assize stated that at the trial before the Supreme Court theappellant stated on oath:
“ The accused (Aron Singho) did not occupy my bed on the verandahon the night of the 23rd August, 1949. The accused did not wake meat 12.30 or 1 a.m. The accused did not tell me that he found Baby Nonawith another man and that he stabbed Baby Nona with the knife Pi.The accused did not tell me that he was going to the Police Station withthe knife PI.”
The Clerk of Assize also produced the Magistrate’s record and statedthat in that Court Jinadasa stated:
“ Last night I slept inside the house with Sopihamy and the accused(Aron Singho) occupied my bed in the verandah. At about 12,30 or1 a.m. the accused woke me and told me that he found Baby Nona withanother man, and that he stabbed Baby Nona with the knife PI.The accused told me that he was going to the Police Station.”
This deposition is inadmissible for the reasons we have already given.
After the Clerk of Assize had given evidence Crown Counsel stated" That is my case ”. Therefore, the prosecution began and ended with theevidence of the Clerk of Assize. The appellant then gave evidence andthe trial was adjourned until November 24, 1949.
On that date counsel for the appellant discovered the irregularity inthe depositions. It was then suggested that the . Magistrate and hisinterpreter should be called, but learned counsel for the defence objectedto this being done at that stage. The Court, however, overruled theobjection, and called the Magistrate and the Interpreter Mudaliyar.
The point taken in this appeal is that the learned Judge was notjustified in calling the Magistrate and the interpreter after the prosecution,had closed its case., and the accused had given evidence in order to fillup gaps or to remedy defects in the prosecutor’s evidence. We considerthere is substance in this contention.
Under section 429 of the Criminal Procedure Code any Court may,at any stage of an inquiry, trial or other proceedings under this Code,summon any person as a witness, or,recall and re-examine any person,already examined; and the Court shall summon and examine, or recalland re-examine any such person, if his evidence appears to it essentialto the just decision of the case.c
The matter is one which is within the discretion of the presiding Judge.If a Judge exercises his discretion in a manner different from that inwhich a Court of Appeal would have exercised it, that factj per se is noba sufficient ground for quashing a conviction—R. v. AiyaduraiK Thesame case decided that what is done should not operate as a trap whichresults in injustice to the accused. The Judge’s discretion must be usedwith a due regard to the interests of the prisoner. He must not beplaced at an unfair disadvantage. It has also been laid down that theprovisions of section 429 must not be used so as to supply gaps or defi-ciencies in-the case for the prosecution—Ponniah v. Abdul Coder2, Vanden-driesen v. Houtoa Umma3. The facts of the unreported case 08, 69/19472 M. C. Batticaloa, 2,269 (decided by the Court of Criminal Appeal onSeptember 22, 1947) bear a strong resemblance to the facts of the presentcase. In that case the Crown closed its case. The counsel for the defencestated that he was not calling the prisoners, but that he would be callingthe Clerk of Assize to prove certain contradictions which had been elicited.The Court then adjourned for the day. On the following day CrownCounsel sought the permission of the Court to call a certain witness whohad not been called, although his name was on the back of the indictment,lie also moved to recall another prosecution witness. The trial Judgeallowed the application, despite objection from the defending counsel.The Court of Criminal Appeal held that this was irregular. The convic-tion rvas quashed and a new trial was ordered. We think the principlethere laid down applies with equal, if not with greater, force to a proceedingunder section 439. In such a case the trial Judge at whose direction thecharge was initiated occupies a position different from that of a Judgeof Assize trying an indictment or an information presented by theAttorney-General. It is, therefore, all the more necessary that he shouldstrictly follow, not only the procedure laid down by section 439, but alsosee that nothing happens which may embarrass or prejudice the accused.The failure to do so may result in vitiating a conviction—see R. v. Silva* ySivaholandu v. Chelliah5.
We are of opinion that the calling of this fresh evidence at this stageof the case was not justified. These witnesses were not called to rebutevidence which had been called for the defence; nor were they called toprove something which arqse ex improviso. They were called, to supply
(1942) 43 A. L. R. at. p. 291.3 (1937) 39 A. L: It. 63.• ,
(1937) 38 A. L. R. 281.4 (1915) 1 G. W. R. 84.
5 (1910) 13 A. L. R. p. 290.
b missing link in the case for the prosecution. In the circumstances, itis impossible to say that the appellant was not prejudiced by thisprocedure. We are not prepared to say that this was a case in whichit was essential to the just decision of the case that the Magistrate andthe Interpreter should be called at that stage. Normally the prosecutionmust stand cr fall by the evidence led before the case for the prosecutionis closed—see JRaaiah v. Suppiah l.
We, therefore, quash the conviction of this appellant but leave it opento the authorities, should they desire to do so, to take further steps againsthim for his alleged perjury.
Appeal 65/1949—S. Sopihamy :
At the Supreme Court trial Sopihamy stated on oath:
“ I did not come to know that the deceased was on intimate termswith the accused (Aron Singho). I did not hear a row at any timebetween the accused and his wife over the deceased. The accuseddid not sleep on Jinadasa’s bed in the verandah on the night on whichBaby Nona was killed. I was not awakened by the accused. He didnot tell me he found the deceased with Guneris, and he stabbed thedeceased with a knife. The accused did not show me and JinadasaPi or a knife like PI. The knife PI does not belong to the accused.The accused did not say he was going to the Police Station, and he wastaking the knife Pi with him.”
The Clerk of Assize also stated that in the Magistrate’s Court reeordthe appellant is recorded to have stated on oath:
“ I came to know that the deceased was on intimate terms with theaccused. I heard a row one day between the accused and his wifeover the deceased. The accused slept on Jinadasa’s bed in theverandah. About 12 or 1 a.m. I was awakened by the accused, andhe told me that he found the deceased with Guneris, and he stabbed thedeceased with a knife. The accused showed me and Jinadasa a knifelike PI. The knife PI belongs to the accused. The accused said hewas going to the police station and took the knife with him. ”
This deposition has the same infirmities which the other two depositionspossess. Before the case for the prosecution was closed, however,both the Magistrate and the Interpreter Mudaliyar were called. Theyhave sworn that the deposition appearing in the magisterial record is thatmade by this appellant, that it was recorded by the Magistrate, and thatit was interpreted to the appellant before she affix’ed her thumb impres-sion thereto. In spite of the absence of the certificate, and in spite of theirregularities committed by the Magistrate when recording the deposition,there is thus other evidence which proves, as the jury has found, that therequirements of section 299 have, in fact, been complied with. This wasconceded by learned counsel for the appellant.
The jury having convicted the appellant, her counsel pleaded in miti-gation of sentence. The learned Judge sentenced her to undergo two
1 {1949) 50 N. L. B.p. 271.
years’ -rigorous imprisonment, observing that he could not overlook theseriousness of her offence. He added that if what she told the MagistrateWas I true, her evidence before the Supreme Court had enabled a guiltypejjson; to evade the law through her perjury. On the other hand, ifwhat- she stated in the Magistrate’s Court was false, then she had placed aninnocent man in jeopardy.
Learned counsel for the appellant renewed his plea for a reduction ofthe sentence. He submitted that the appellant was a first offender,that she was forty years of age, that s^e was a helpless female who wasentirely beholden to Aron Singho, and that if she gave untrue evidence, atthe trial it was due to her desire to help her benefactor. He, therefore,suggested that a sentence of 6 months rigorous imprisonment would bean adequate punishment for this offence.
The appellant on her conviction became liable (in the Supreme Court)to be punished with imprisonment of either description for a term whichmay extend to seven years, and also to a fine—-see section 190, Penal Code.We:'must bear in mind the circumstances under which this perjury wascommitted by the appellant. It was admittedly with the intention ofsaving Aron Singho from a capital conviction, or from having to undergoa long term of imprisonment if he was eonvicted of a lesser offence. Wehave to take into consideration the circumstance which the DivisionalCourt pointed out in 1896 1 that “ perjury is rife in our Courts ’’ and thatit is necessary, when a person has been proved to have committed theoffence, that an adequate punishment should follow.
Our attention has been drawn to the case of E. v. Pocliappuhamy 2where Schneider J. in dealing with an appeal from a conviction undersection 439 in .a District Court expressed the view that the provisions ofsection 439 should not be invoked in cases where the offence is one of agrave nature calling for a heavy sentence. We are unable to place thisrestrictive interpretation on section 439 which the Legislature designedfor the prompt and speedy punishment of persons who deliberatelyretract or contradict the evidence given before the Magistrate. We arelikewise unable to subscribe to the view that the powers of punishmentunder section 439 are restricted. The Legislature has made it clear thatunder section 439, upon conviction, a Judge of Assize is vested with adiscretion to award a sentence up to the maximum prescribed by section190 of the Penal Code. A Court of Appeal will not lightly interfere withthe discretion vested in the trial Juclge, exeept in eases where such dis-cretion has been manifestly exercised wrongly or on wrong principles.Hach case must be decided upon its peculiar facts and circumstances.
We agree with the learned trial Judge that the offence committed by thisappellant is a serious- one. We are further of opinion that a sentence oftwo years rigorous imprisonment cannot be considered to be too severewhen the nature of this perjury and the circumstances under which theoffence were committed are taken into account. This appeal is dismissed.
_Convictions of 1st and 2nd appellants quashed.
CAppeal of 3rd appellant dismissed.
1 {1896) 2 N. L. R. 74. {Div. ct.)2 {1927) 29. N. L. R. 103.