King V. Wijeyesekere

1940     Present: Keuneman and Nihill JJ. 

THE KING v. WIJEYESEKERE.

7-D. C. (Crim.) Colombo, 87. 

Giving false evidence in judicial proceeding-Evidence of accused taken down in shorthand-Record of statement put in-Non-compliance with Civil. Procedure Code, s. 169-No presumption under Evidence Ordinance., s. 80. 

Where evidence is taken down in a civil proceeding by a shorthand writer under the direction of the Judge it does not amount to a sufficient compliance with the requirements of section 169 of the Civil Procedure Code. 

Such a record of the evidence given by a witness is not legally admis­sible evidence against that witness in a prosecution for intentionally giving false evidence in a judicial proceeding.

AN appeal from a conviction by the District Judge of Colombo.

 The appellant was convicted of intentionally giving false evidence in a judicial proceeding under section 190 of the Penal Code.

 The alleged false statement which formed the basis of the charge was given by the appellant in evidence in a matrimonial action brought by

him against his wife for divorce on the ground of malicious desertion. The evidence in the case was recorded by a shorthand writer. At the trial before the District Court the prosecution relied on the record of the matrimonial action in order to prove that the accused made the false statement attributed to him. It was contended on behalf of the accused that the statement was not recorded in accordance with the requirements of section 169 of the Civil Procedure Code and was therefore inadmissible against him.

 H. V. Perera, K.C. (with him C. E. S. Perera, P. H. K. Goonetilleke, Dodwell Goonewardene, and T. D. L. Aponso), for accused, appellant.-The appellant had no intention to deceive the Court. His intention right through the divorce proceedings was to say that his wife was guilty of malicious desertion. The words complained of are " about 1937 she left me altogether ". There is evidence that the appellant had as his hobby the study of law. He made the layman's mistake of not properly under­standing the difference between " left" and " deserted". Further, he says that the shorthand writer had wrongly taken down " altogether " in place of " in September ".

 There is no legal proof that the accused actually stated what he is alleged to have stated. The deposition which is the foundation of the case was not taken down in accordance with the provisions of section 169 of the Civil Procedure Code. Section 80 of the Evidence Ordinance cannot help the prosecution if the deposition is proved to have been irregularly recorded. Section 169, Civil Procedure Code, requires the evidence of a witness to be taken down in writing in the English language by the Judge. There is no provision in our Code for a shorthand writer. Although the failure of the Judge to have taken down the evidence himself might not vitiate a

Click Here to Read the rest of this document