Pedrick Singho V. The King

[COURT OF CRIMINAL APPEAL]

1950 Present: Dias J. (President), Windham J. and Gunasekara J

S. PEDRICK SINGHO et al., Appellants, and THE KING,

Respondent

APPEALS 63-65 WITH APPLICATIONS 168-170 OF 1949

S. C. 33-M. C. Horana, 7,848

Court of Criminal Appeal-Perjury-Burden of proof-Measure of punishment- Depositions-Effect of irregularity in taking down depositions-Calling evidence after case for prosecution is closed-Criminal Procedure Code, ss. 299, 429, 439.

In a charge, under section 439 of the Criminal Procedure Code, for giving false evidence, the burden of proof is on the prosecution to establish beyond reasonable doubt (a) that the witness made the statements set out in the indictment in the Court of trial and in the Magistrate's Court, (b) that such statements were made on oath or affirmation, (c) that such statements were on " material points ", and (d) that either expressly or by necessary implication the statement made by the witness in the Court of trial contradicts that given before the Magistrate. It is not necessary for the prosecution to go further and either allege or prove which of the two statements is false. The evidence, however, must be legally admissible evidence.

Where the deposition of a witness has been irregularly recorded by the Magistrate in breach of the provisions of section 299 of the Criminal Procedure Code, such a deposition is not legal evidence upon which the Court or jury can act in order to convict the witness. A conviction based on such evidence is liable to be quashed.

It is, however, open to the prosecution, where such an irregularity exists, to prove by other evidence in terms of section 299 (6) that the requirements of section 299 were, in fact, complied with. This can be done by calling the Magistrate and the interpreter of the Magistrate's Court, or by the cross-examination of the witness.

It is, however, irregular, after the case for the prosecution is closed, for evidence to be led under section 299 (6) in order to fill up gaps or to remedy defects in the case for the prosecution.

Under section 439 several witnesses should not be tried together, Each witness should be indicted and tried separately.

The provisions of section 439 are intended to provide a prompt punishment for perjury. A Judge of Assize may award a sentence up to the maximum prescribed by section 190 of the Penal Code. There is no warrant for giving the provisions of section 439 of the Criminal Procedure Code a restricted interpretation. R. vi. Podiappuhamy (1927) 29 N. L. R. 103, not followed.

APPEALS, with applications for leave to appeal, against certain convictions in a trial before a Judge and Jury.

M. M. Kumarakulasingham, with L. C. Gooneratne, for the appellants.

J. A. P. Cherubim, Crown Counsel, for the Crown.

Cur. adv. vult.

January 30, 1950. DIAS J.-

W. Aron Singho stood his trial for the murder of his wife Baby Nona. Amongst the prosecution witnesses were these three appellants.

W. D. Jinadasa is the brother of Aron Singho. S. Pedrick Singho and Sopihamy were the brother and sister of the deceased woman. These persons are said to have been dependent on Aron Singho's bounty for their maintenance.

The trial of Aron Singho commenced before Basnayake J. and an English-speaking Jury on November 21, 1949, and was concluded on the following day, when the jury unanimously acquitted him. The three appellants were the chief witnesses for the prosecution. It is alleged that the appellants at the trial before the Supreme Court retracted or contradicted the evidence given by them before the Magistrate in material respects and thereby made it impossible for the jury to reach any verdict-other than one of acquittal.

After the verdict of the jury had been recorded, the witnesses W. D. Jinadasa, S. Sopihamy and S. Pedriek Singho were called up. The learned Judge addressing them said:

I have directed the Registrar of this Court to

Click Here to Read the rest of this document