[1950] EACA 81

## APPELLATE CRIMINAL

#### Before MODERA, J., and CONNELL, Ag. J.

### MAKHAN SINGH s/o SUDH SINGH Appellant (Original Accused)

ν.

# REX, Respondent (Original Prosecutor)

### Criminal Appeal No. 271 of 1950

### (Appeal from decision of Resident Magistrate's Court at Nyeri-A. C. Harrison, Esq.)

Perjury—Penal Code, section 104—Giving of false testimony—"Suggestio falsi"— Intention to mislead-Not sufficient Proof of facts showing statement to be not only incredible but also impossible—Testimony given on oath or under any other sanction authorized by law-Commissioners for Oaths-Duty of.

Appellant filed an affidavit in certain Habeas Corpus proceedings, containing the statement, "After leaving school, I joined my father in business and worked with him from June, 1931 to December, 1939". It appeared that, in fact, appellant had been absent in India for two short periods, in the years 1933-34 and 1935-36 respectively. He was charged with knowingly swearing this statement falsely, his intention being to convey to the Court the impression that he had been continuously in Kenya from 1927 to 1939, without a break, which intention was admitted by the appellant and he was convicted on the charge.

Appellant appealed.

Held (27-7-50).—(i) That as appellant had not stated that he had been "continuously" in<br>Kenya during the period in question, his two short absences in India were not incompatible with his having worked with his father during the whole period, and the suggestio falsi. made with the admitted intention of misleading the Court, was not sufficient. There must be proof of facts which, if accepted as true, show, not merely that the statement is<br>incredible, but that it is impossible that it can be true.

R. V. Ahmed Ali (1869) 11 W. R. Cr, 27, relied on.

(ii) That it is essential that Commissioners for Oaths should either be in possession of the proper Ceremonial Books before swearing the deponent, or should record properly whether the deponent assents to the forms or ceremonies actually used, unless the deponent is a pagan, in which case it should be recorded that he was solemnly affirmed.

Appeal allowed. Conviction quashed and sentence set aside.

Cases referred to: Reg. v. Ahmed Ali, (1869) 11 W. R. Cr. 27.

D. N. Khanna for the appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal against a judgment by the Resident Magistrate, Nyeri, convicting the appellant Makhan Singh on a charge of perjury contra section 104 (1) of the Penal Code.

The charge itself sets out that Makhan Singh on 5th October, 1948, in an affidavit sworn by him before Mr. M. K. Bhandari, and wherein he first alleged that he first arrived in Kenya Colony in 1927, "knowingly gave false testimony touching a matter material to be raised in a proceeding for Habeas Corpus", and alleges that Makhan Singh "knowingly swore falsely as follows:—

After leaving school I joined my father in business and worked with him from June, 1931 to December, 1939".

It is then alleged that the meaning and intention of this statement was that the Judge in the said proceeding should understand that from 1927 to 1939 Makhan Singh was in Kenya without a break, whereas in truth he was absent from Kenya in the years 1933 to 1934 and 1935 to 1936.

We remark at the outset that the charge is framed in an unusual manner by setting out the "meaning and intention of the words", which appears to us a departure from the form given in Archbold, 1949 Edn., at page 1252.

It became apparent to us during the argument of the appeal by Mr. D. N. Khanna that the whole crux of the matter was whether the statement already quoted and taking it at its face value, amounted to the "giving of false testimony" within section 104 of the Penal Code. Mr. Khanna in fact summed the issue up by stating "there was no false statement, its falsity was not shown by evidence".

The important words of course are the words "worked with him (i.e. my father) from June, 1931, to December, 1939".

Now it is fully admitted that the appellant was in fact absent in India on two visits, the first in 1933-34 on the occasion of his own marriage when he was away for three months, the second in 1935-36 when he was away for two and half months on the occasion of his sister's marriage. There was nothing to show that the appellant was not still working with his father during both those visits. For aught that the Court knows the appellant conducted business in India on behalf of his father on both occasions. There was certainly no evidence to the contrary.

Mr. Todd in the course of his argument was unable to assist the Court on that particular aspect of the statement except to say that it amounted in effect to a "suppressio veri". Whilst the withholding of information required by statute to be disclosed may well constitute a criminal offence no authority has been cited for the proposition that the offence of perjury can be committed purely by omission.

It seems to us that the law on the subject of false testimony could not be better summed up than it was by Norman, J., in the case of Reg. v. Ahmed Ali, 1869, 11 W. R. CR., page 27, where he states: "It appears to us that the true rule is that no man can be convicted of giving false evidence except upon proof of facts, which, if accepted as true, show not merely that it is incredible, but that it is impossible that the statement of the party accused made upon oath can be true. If the inference from the facts proved falls short of this, it seems to us that there is nothing on which a conviction can stand, because, assuming all that is proved is true, it is still possible that no crime was committed".

Both from a common sense point of view and applying the same reasoning to the facts of this case there is nothing on the record in our view to show that it was "incredible" or "impossible" that the appellant was not still working with his father during the two periods above mentioned.

Having come to this conclusion we do not feel called upon to examine the question of the "materiality" of the statement, beyond stating that we are of the opinion that the statement was material. Likewise we do not base our judgment on the arguments regarding the "intention" of the appellant at the time he subscribed to the affidavit of the 5th October, but we would state this, that in our view the Madras cases (1937 Madras, page 358 and 1904 Madras, page 238) cited by Mr. Khanna do not support the proposition that previous admissions in other proceedings, even though apparently adverse or of a confessional nature, may not be relied on by the prosecution if properly proved; as is stated in Woodroffe's Evidence, page 226 (1941 Edn.), "Evidence may be given of a confession provided it be not expressly excluded". The alleged admission is a

statement before Thacker, J., in C. C. 327/49 "I intended the Judge to understand that from 1927-1939 I was in Kenya without a break". We will assume against the appellant that was his intention.

If the appellant had said in his affidavit that he was in Kenya continuously from 1927-1939 it may be we would have taken a different view in the present appeal. But as we have already pointed out the appellant in fact said nothing<br>of the sort. The statement put at its highest against accused was vague or ambiguous but we do not consider that a vague or ambiguous statement can be made the foundation of a criminal prosecution for perjury.

We would add finally, on the arguments addressed to us as to whether the appellant was properly sworn by Mr. M. K. Bhandari that even taking the view which we do that the appellant was in fact sworn, nevertheless in our view it is essential that Commissioners for Oaths should either be in possession of the proper Ceremonial books before swearing a deponent or should record properly whether the deponent assents to the forms or Ceremonies actually used, unless the deponent is a pagan, in which case it should be recorded that he was solemnly affirmed. We would also draw attention to the fact that there are no forms at present prescribed for use by Commissioners, either under the Indian Oaths Act or under the Commissioner for Oaths Ordinance.

For the reasons we have stated we are of the opinion that the conviction cannot be supported and it is therefore unnecessary to deal with the several other grounds of appeal addressed to us by Mr. Khanna.

We allow the appeal, quash the conviction and set aside the sentence: We substitute a finding of acquittal and the appellant will be discharged.