1927 Present : Schneider J.

THE KlNG v. PODI APPUHAMY

76-D. C. (Crim.) Kandy, -3,995.

Perjury-Two contradictory statement-Materiality-Criminal Procedure Code, ss. 439 and 440.

A witness can he convicted for giving false evidence under section 439 of the Criminal Procedure. Code only where he contradicts the evidence given by him previously on a material point.

Section 439 is not intended to be applied to cases where the offence is of a grave nature and calk for a heavy sentence.

The scope and application of section 439 and 440 of the Criminal Procedure Code explained.

APPEAL from a conviction by the Additional Judge of Kandy.  The, facts appear from the judgment.

Mervyn Fonseka, C.C., for the Crown.

August 12, 1927. SCHNEIDER J.-

There are two appeals in this case by two witnesses who were convicted upon two indictments in one proceeding under section 439 of the Criminal Procedure Code in connection with the trial of this case and each of whom has been sentenced to undergo 18 months' rigorous imprisonment and to pay a fine of Rs.1,000, and in default of payment to undergo a further term of 18 months' rigorous imprisonment. They are both ordinary carters, and in all probability are not in a position to pay the fine, and will therefore each have to undergo in all three years' rigorous imprisonment. I notice that their petitions of appeal have been prepared and lodged in Court by the Jailer of the Bogambra jail. The petitioners are therefore already suffering imprisonment under the order of the District Judge. The sentences imposed being so startling by their very severity, I felt that I ought to examine the whole of the evidence in the case. There was no appearance for the appellants. I am indebted to Mr. Crown Counsel Fonseka for the assistance he rendered to me as Amicus Curiae, not only in studying the facts of the case, but for the references to certain authorities. The appellants are Kalu Banda and Rattaranhamy, two of the witnesses for the prosecution. The charges against the accused in this case were that on April 25, 1927, he committed housebreaking by entering into a rice store, and also committed theft of rice at the same time from that store. The accused was a carter employed by the occupiers

of the stove, whose business would appear to ha\e been forwarding rice to estates.  On the night in question there were seven carts in the " gala," or halting place for carts, which adjoined the store. All the carters had received their loads, and the poonac for their bullocks, and should have been ready to start at an early hour the next morning. The watchman of the store, when going his rounds at about 9.30 p.m., discovered the accused near one of the doors of the store, and that a space between the shutters of the door was held open by a wedge of wood, driven in between the two shutters. He also saw in the hands of the accused the spoke of a wheel, which had probably been used in forcing the shutters apart to insert the wedge. The opening was large enough to insert a hand and to reach some bags of rice, He seized the accused and called out to the other carters. Only the two witnesses, who were also carters and whose carts were in the " gala " that night, came up. The watcher says that three bags containing rice had been cut, and he found about quarter of a bushel of rice spilt inside and outside the room and that he pointed out the spilt rice to the appellants. The bags, he says, were all inside. Kalu Banda said in the District Court that when he went up the watcher showed him and Rattaranhamy some spilt rice outside and a larger quantity spilt inside. Under cross-examination he said on this point that he saw the bags distinctly and that the watcher showed him and Rattaranhamy the cuts in them, and that there were only a few grains of rice inside. In the District Court Rattaranhamy stated that he saw the bags, but did not see if they were cu