THE KING v. DIAS.

False evidence-Penal Code, s. 190-Contradictory statements-Alternative count in indictment-Criminal Procedure Code, 1883, s. 509, and form, of indictment at p. 368-Criminal Procedure Code, 1898, s. 489 (2).

The Criminal Procedure Code of 1898 nowhere provides that, in a prosecution for intentionally giving false evidence under section 190 of the Penal Code the Attorney-General may present to the Court an indictment setting forth two irreconcilable statements made by an accused person, and averring in such indictment that one of such statements the prisoner either knew or believed to be false, or did not believe to be true.

An indictment for breach of that section must aver that the accused intentionally gave false evidence by knowingly and falsely stating something which he knew or believed to be false, or did not believe to be true, and that he thereby committed an offence punishable under section 190 of the Penal Code.

THE accused was convicted for an offence punishable under section 190 of the Penal Code, in that on the 24th March, 1902, in the course of an inquiry into case No. 74,945 in the Police Court of Colombo, he stated to the Magistrate in evidence, " The first accused Anthony came back with an open knife in hand, and without a word he stabbed the complainant. I saw him draw the knife from his waist and open it;" and that on the 7th August, 1902, in the course of the trial of case No. 441 of the District Court of Colombo he stated to the District Judge in evidence, " I did not see an open knife in the first accused's (Anthony's) hand as I told the Magistrate. I did not see him come with an open knife, nor did I see him stab."

The District Judge (Mr. N. E. Cooke) found the accused guilty and sentenced him to six months' rigorous imprisonment, holding that the two statements set out in the indictment were so contradictory and irreconcilable that one of them must be false and intentionally spoken.

The accused appealed.

Dornhorst, K.C. (with him Van Langenberg), for appellant, and Râmanâthan, S.G., for the Crown, were heard on 24th July, 1902.

In view of the doubt entertained by the presiding Judge as to the soundness of the judgment of the Supreme Court, pronounced in Reg. v. Jasik Appu (4 N. L. R. 18), in which Browne, A.J. held that, where two statements were so irreconcilable that one or

the other must be necessarily false, it was needless to offer any evidence to negative either statement, the case was ordered to be put on for argument before the Collective Court.

On 18th May, 1903, the case was taken up before Layard, C.J., Middleton, J., and Grenier, A.J.

Dornhorst, K.C., and Van Langenberg, for appellant.-The form of the indictment adopted in the present case is taken from page 868 of the Criminal Procedure Code of 1883. Such a form was sanctioned by section 509 of that Code, but that Code has been repealed by the present Code of 1898, and this form of indictment does not appear in it. It has been repealed. Nevertheless Browne, A.J., in Reg. v. Jasik Appu (4 N. L. R. 18), saw no objection to its use at present His reason was that it had been approved in India and followed by Lawrie, J. But all Indian decisions are founded on the form sanctioned by schedule V. of the Indian Code. Starling's Indian Criminal Law, chap. XI. p. 234 (Sixth Edition). As that form copied into our Code of 1883 has been repealed by the Code of 1898, the decision of Browne, A.J., is not according to law, and should not guide the decision of this case. In section 439 (2) of the Code it is specially provided that in the case of the Supreme Court only it shall not be necessary to prove which of the contradictory statements alleged is false. That section does not apply to District Courts Queen v. Podinaide (1 Browne, 99). If the Supreme Court accepts this contention, it will not be necessary to go into the second question raised in the Court below, vi