KULATUNGE AND ANOTHER

KULATUNGE AND ANOTHER

Vs.

COMMISSION TO INVESTIGATE ALLEGATIONS OF BRIBERY OR CORRUPTION AND ANOTHER

COURT OF APPEAL
KARUNARATHNA, J.
GURUSINGHE, J.
CA/HCC/APPEAL/419/2018
HCB COLOMBO 1971/2013
OCTOBER 6, 2021

Code of Criminal Procedure Act, No. 15 of 1979, section 449(1)-Perjury in open court-Ingredients of the offence-Standard of proof

The appellant was the second defence witness in a bribery case heard before the High Court. She was convicted and sentenced to one year's

rigorous imprisonment for perjury under section 449(1) of the Code of Criminal Procedure Act. The appellant appealed to the Court of Appeal.

Held:

1. The proceedings and punishment under section 449(1) of the Code of Criminal Procedure Act for perjury requires a high degree of proof that the witness has deliberately given false evidence to mislead the court; it should not be applied in instances where the court should only disregard the witness' evidence as untrue.

2. In this case, the High Court judge disbelieved the evidence of the appellant. Her evidence does not meet the higher degree of deliberate falsehood amounting to perjury.

Cases referred to:

1. Attorney General v. Silvan Silva [1981] 1 Sri LR 364

2. Attorney General v. Sandanam Pitchi Mary Theresa (SC/ APPEAL/79/2008, SC Minutes of 06.05.2010)

APPEAL from the Judgment of the High Court of Colombo.

Dimuth Senarath Bandara with Malindu Peiris and Keheliya Alahakoon for the 2nd Defence Witness-Appellant.

Sudharshana de Silva, D.S.G., for the Complainant-Respondent.

cur. adv. vult.

December 7, 2021

KARUNARATHNA, J.

This appeal is preferred against the Order, delivered by the learned Judge of the High Court of Colombo, dated 07.12.2018, by which, the 02nd defence witness-appellant, was convicted and sentenced for 12 months Rigorous Imprisonment for 2 counts, to run concurrently. The learned High Court Judge acting under section 449(1) of the Code of Criminal Procedure Act, sentenced the 02nd defence witness-appellant for perjury.

When I consider the background story, it is evident that the accused appellant above named was indicted in the High Court of Colombo in Case No. HCB 1971/13 on four separate counts under sections 16(b) and 16(c) of the Bribery Act for soliciting and accepting a bribe of Rs.

2,500/- from one Wijesiri Buddhakoralage Mahinda Lal Gunawardene to refrain from taking legal action against him for a traffic offence which he had committed on 10.09.2008.

The said trial commenced on 17.09.2014 and evidence of PW 01, PW 02, PW 03, PW 04, PW 05 and another official witness was led by the prosecution, marking its documents from P1 to P8 (6). Upon the defence being called, the accused-appellant himself gave evidence and thereafter called the 02nd defence witness-appellant as a witness for the defence. After the trial, the learned High Court Judge by his judgement dated 16.11.2018 convicted the accused-appellant for all 04 counts and imposed a sentence of 05 years Rigorous Imprisonment for each count to run concurrently, and a fine of Rs. 5,000 for each count with a default term of one year's Rigorous Imprisonment.

Having concluded the said order to the effect that the 02nd defence witness-appellant had given false evidence in her testimony, the learned Judge of the High Court proceeded to act under section 449(1) of the Code of Criminal Procedure Act, against her for perjury. The Registrar of the High Court containing the following allegations of perjury was served on the 02nd defence witness-appellant on 30.11.2019, who was directed to show cause against imposing punishment under section 449(1).

Allegation 1: that the evidence she had given at the trial to the effect that she was present at the occasion of the arrest of the accused and that the accused did not ask for any money from the person who had come there, was in the opinion of the court, false evidence as interpreted by section 188 of the Penal Code.

Allega

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