Hit Narayan Singh vs Emperor

Sen, J.—The petitioner is a Civil Court peon and in that capacity effected dakhaldehani of a certain plot of land on the 21st September, 1924, to one Karu Gorain, the auction purchaser of that property in execution of a rent-decree. Subsequently a criminal case arose as between the judgment debtor in the civil case to whom the property belonged and Karu Gorain, and the crop of the fields of which delivery of possession had been given was cut and removed by the judgment-debtor. In this case the petitioner was called as a witness and he was giving evidence as to the delivery of possession which he had effected in September, 1924. In the course of his deposition he made a statement as follows:

I sent Ganesh chaukidar to call the men of Musammats Raj Kuer and Shewnandan Kuer at the field after I had delivered possession of the property.

Soon after wards in course of cross-examination he said "My statement just now that I sent Ganesh chaukidar to call the men of the Musammats is false."

On this ground the Deputy Magistrate of Bihar, Mr. Ozair, who tried the case preferred a complaint against the petitioner'' u/s 476 of the Cr. P.C. for an offence u/s 193 of the Indian Penal Code. The learned Counsel for the petitioner Urges that the petitioner as a witness had a. right to withdraw a statement which he had made in the previous part of his deposition when he became aware that it was not correct, and that on that ground his two conflicting statements taken together would not amount to an offence u/s 193 of the Indian Penal Code. I think there is a great deal of force in his contention. If the second statement had been recorded in a slightly different form, that is, if instead of the word "false" the word "incorrect" had been recorded, I think it would obviously not have come u/s 193 of the Indian Penal Code. The point of the whole objection is that he admitted that his first statement made in his deposition was "false". It is very difficult to say whether the witness really intended to say that the statement previously made was "false" or whether his intention was rather to say that it was "incorrect". When a witness is under cross-examination and the question is put to him by the cross-examining Counsel as to whether a statement previously made by him is false or not, he may assent to it or dissent from it and his "yes" or "no" would be in due course recorded in a narrative form. In those circumstances I have very great doubt as to whether this would be a fit case for prosecution u/s 193, Indian Penal code.

Moreover, the principle has been laid down in various judicial decisions that a witness should be given a lotus poenitentioe and an opportunity to correct himself and if he corrects himself immediately afterwards or on a second thought in the same deposition, a prosecution for perjury would not lie. This proposition is supported by rulings in the cases of Lachhmi Narain v. Emperor 19 Ind. Cas. 712 : 16 O.C. 81 : 14 Cr.i L.J. 280 , Maharaj Prasad Vs. Emperor, , and In re Pandu Namaji Gavande 39 Ind. Cas. 320 : 19 Bom. L.R. 61 : 18 Cr. L.J. 480. In the last mentioned case the learned Judge went into the principle in some detail and. observed that "a deposition must be read as whole and a witness must always be given an opportunity of correcting any answer given by him. The present case does not, I think, in law substantially differ from a case of more frequent occurrence where a witness, having made a false statement,'' is ''cautioned by the trying Judge and is informed of various circumstances which seem to establish the falsehood of that statement; and the witness after such caution acknowledges that his earlier statement was false and corrects it. In such circumstances, speaking within my own experience, I have not known any case where any Judge has thought it desirable to subject such a witness to a prosecution for perjury. And that a Judge should refrain from such directions seems to me not unreasonable, when it is remembered that the essence of the offence of perjury consists, as I take it, in an attempt to mislead and deceive the Court. In such a case, as we have here it cannot be truly said that the opponent left the Court under the lie with which he began by attempting to deceive it. On the contrary, before the deposition was finished, he withdrew, the lie and left the Court under the impression of the truth. It may well be, and in this case, I think, is the fact that his motive in thus withdrawing his lie was a motive which does him no credit. That, however, is not, it seems to me, a decisive consideration upon this question of discretion."

The facts in the present case are much more favourable to the accused than the facts in the last mentioned case. Here, as I have observed, it does not appear clearly that the accused deliberately meant to perpetrate a fraud upon public justice. He said no doubt that he had sent a man to the Musammats, but soon afterwards in cross-examination he said that his previous statement was false. The impression, therefore, left in the mind of the Court was clearly that he had not sent a man to the Musammats as he had previously deposed.

It is urged on the other hand, that the casa reported as In the matter of Palani Palagan 26 M. 55 : 1 Weir 166, should apply to the present case and that, therefore, this Court should not interfere in the matter. The facts of that case seem to be somewhat different. In that case a witness had given his evidence before a Court, the evidence had been read over to him and signed by him, and thereafter he was again called to the box and he made certain statements in cross-examination., It was found that his statements made in the first piece of deposition were in conflict with the statements made in the second and the question arose as to whether it was a proper case for prosecution in the circumstances. This case appears to have been also referred to in a later decision reported Girdharimal v. Emperor 34 Ind. Cas. 656 : 9 S.L.R. 202 : 17 Cr. L.J. 242. The question whether conflict of statements made in one and the same deposition can be subject-matter of a prosecution u/s 193 appears to have been the subject-matter of conflicting decisions. That question does not arise in the present case because, as I have observed, it is not at all clear from the facts of this case as to whether, the witness in question had a dishonest intention in making the statements that he did and from which he resiled later.

That being so, I am of opinion that the prosecution against the petitioner should be withdrawn.

The order of the learned Sessions Judge is, therefore, set aside.