LIYANAGE v. OFFICER-IN-CHARGE, CHILAW POLICE STATION

005-SLLR-SLLR-1994-V1-LIYANAGE-v.-OFFICER-IN-CHARGE-CHILAW-POLICE-STATION.pdf


CA
Liyanage v. Officer-in-Charge, Chi law Police Station
(Dr. Gunawardena, J.)
223
LIYANAGE
v.
OFFICER-IN-CHARGE, CHILAW POLICE STATION
COURT OF APPEAL.
DR. GUNAWARDENA, J.
CA APPEAL NO. 1/89NIC CHILAW NO. 92865OCTOBER 10TH, 1994.
Criminal Procedure Code – Section 449 – Conviction for giving false evidence ina judicial proceeding.
The accused was a witness tor the prosecution. There was a discrepancybetween the evidence given by the accused and that of his wife. The accusedwas convicted for giving false evidence in a judicial proceeding.
Held:
That the provisions of Section 449 of the Criminal Procedure Code are notintended to apply to a case where a conflict arises between the testimony of twowitnesses.
Per Gunawardena, J.. *ln the instant case too the conflict of testimony isbetween the two witnesses, viz. the husband and wife, therefore the learnedMagistrate could not have acted under Section 449 of the Criminal ProcedureCode, as it would not amount to giving false evidence under the provisions of that
Section."
Case referred to:
Ahsmath v. Silva (1920) 22 NLR 444
APPEAL from conviction by the Magistrate, Chilaw.
L.V.P. Wettasinghe for accused-AppellantP. Mahindraratne S.C. for the AG.
Cur adv vult.
October 10th, 1994.
DR. GUNAWARDENA, J.
The Accused-Appellant was a witness for the prosecution, in acase where some other accused were charged for an offence underthe emergency regulations. There was a discrepancy between the
224
Sri Lanka Law Reports
[1994} 1 Sri LR.
evidence given by the accused-appellant and that of his wife. Thediscrepancy was that the Accused-Appellant had stated in hisevidence that he returned home after a hunt along with the 3rd, 4thand 5th accused and also brought his gun with him. The evidence ofthe wife was that the Accused-Appellant came back without the gunand that the said 3 accused came back after about 30 minutes, withthe gun. The Magistrate has called upon the Accused-Appellant toshow cause as to why he should not be punished for giving falseevidence, at the said trial. Although the learned Magistrate has notedin the record that he had explained the charge to the accused-appellant, the record does not indicate that a specific charge wasframed against him.
The learned Counsel for the petitioner submitted that, the evidencedoes not show that the accused had given false evidence, but is amere variation of the sequence of events. He further pointed out that,the evidence of the wife was not quite specific about the return of thegun.
More importantly, the conviction of the Accused-Appellant by thelearned Magistrate appears to be fundamentally erroneous. In thisinstance, the learned Magistrate seems to have acted under Section449 of the Criminal Procedure Code, in convicting the Accused-Appellant, for giving false evidence in a judicial proceeding. In thecase of Ahamath v. Silva “’dealing with the provisions of Section 440of the old Criminal Procedure Code, which are similar to the presentSection 449, it has been pointed out that, "The provisions of theSection are not intended to apply to a case where a conflict arisesbetween the testimony of two witnesses." In the instant case too theconflict of testimony is between the two witnesses, viz. the husbandand wife, therefore the learned Magistrate could not have actedunder Section 449 of the Criminal Procedure Code, as it would notamount to giving false evidence under the provisions of that Section.
Therefore, the conviction and sentence of the Accused-Appellantis hereby set aside and Accused-Appellant is acquitted..
Appeal allowed.
Accused-appellant acquitted.