In Re: Venkataswami Chetti

Jackson, J.—The petitioner seeks to set aside the order of the Sessions Judge of Madura u/s 476, Criminal Procedure Code, complaining

against him for perjury, in that in Sessions Case No. 97 of 1925 he swore: ""He told me in a very low tone...that he had beaten his son and,

therefore, his son and son-in-law had both beaten him."" The learned Judge has not indicated in his complaint any reason for holding that this

statement is false. He merely gives it as his opinion that it is false. In an order of a week previous the learned Judge quoting Queen v. Ahmed Ally

11 W.R. Cr. 25 agrees that the opinion of a medical witness should not be considered witnesses. He says that ""in the present case there is no

reliable evidence of eyewitnesses running counter to the evidence of the medical witness and obviously there is a clear prima facie case against the

petitioner."" From these two proceedings it would be impossible to discover why the petitioner is being prosecuted. But further light is shown on the

matter by reference to the judgment in the main case. Apparently the learned Judge on referring to the, post mortem certificate has discovered that

there was a large clot of blood on the brain of the man alleged to hive spoken to the petitioner and has inferred from that fact that the petitioner

could not speak. This point was never put to the medical witness when he was in the box nor has the medical witness ever said in so many words

that he could not speak, and, therefore, at this stage of the case there is no reason to assume that the evidence of the medical witness is contrary to

the evidence of the petitioner. Over and above that the evidence, there are the statements of several witnesses which belie the reported statement

of the deceased; but even then there is no direct proof that petitioner was the liar, and the charge rests only upon a presumption that the deceased

himself was not lying. Even if there had been a statement directly contradicting the petitioner''s statement, it is not customary to prosecute persons

u/s 476 in mere matters of oath against oath; which may be a question of public policy rather than a quest of law. It would be manifestly absurd at

the end of most criminal trials to send all the alibi witnesses up for trial u/s 476, It is not easy to understand the distinction which the learned Judge

makes between the application of a principle at the trial and its application when the prosecution is under consideration. Before complaining against

a person u/s 476 the Judge must be convinced in his own mind that the trial will end in a conviction and he can hardly say that although the accused

will probably ultimately be acquitted because there is no evidence that his statement is more than incredible, yet at the same time this is not a point

to which he need direct his attention in framing a complaint.

In these circumstances the appeal is allowed and the complaint of the learned Sessions Judge should be withdrawn.