Queen vs Nomal

Norman, J.—This is one of four cases sent for by myself, and Mr. Justice E. Jackson, u/s 403 on a review of the abstract statement of cases tried before the Court of Session by the Officiating Judicial Commissioner. They are all convictions for giving false evidence on alternative charges based on supposed contradictions. In two cases the prisoners have been already released, there being in our opinion no ground for saying that there was any real contradiction between the two depositions.

In the present case the prisoner has been tried and convicted by the verdict of a Jury of giving false evidence, either before the Assistant Commissioner of Nowgong in a preliminary enquiry or in the Court of Session before the Officiating Judicial Commissioner, stating on solemn affirmation that just before we saw a light outside and went out to see what it was, we then saw the complainant''s brother''s house was on tire, and by the light of that tire we saw a man named Tahiram, putting his hand into the roof of Shiva''s house which is close to complainant''s; when I saw accused putting his hand into the roof of Shiva''s house, I saw there was something in his hand which was smoking : the fire broke out in Shiva''s house almost immediately afterwards," or as specified in the second head of charge, namely, that he, on or about the 22nd June, 1869, intentionally gave false evidence at Nowgong before the Court of Session in a stage of a judicial proceeding at the trial of a case, by stating on solemn affirmation, that "when I first came out and saw the fire, through the light of the flame I saw the accused at the dung shed," and that the said statements being opposed to each other be knew one of them to be false. The prisoner was sentenced to two years'' rigorous imprisonment.

The evidence against the prisoner consisted solely of the two depositions which are supposed to be contradictory.

In both these depositions be charges or means to charge Tahiram with having set fire to the houses of Kaminohola and Shiva, and of course the really important question was whether the charge made by him in those two depositions against Tahiram was false. If in making a charge which is in substance true, a witness in giving accounts at different times of what be saw makes contradictory statements, such contradiction is not per se proof that the witness is intentionally giving false evidence.

The Judicial Commissioner, assuming to act under the powers. conferred on Courts of Session by the 172nd section of the Code of Criminal Procedure, on the same day in which the prisoner had given evidence against Tahiram, charged and then and there forthwith tried the prisoner on two charges, one of having given false evidence before the Deputy Commissioner, and the other of having given false evidence before himself.

By section 359, it is provided that except in the cases referred to in section 172, a Court of Session as a Court of Original Criminal Jurisdiction shall not take cognizance of any offence but upon a charge preferred by a Magistrate or other officer empowered to make commitments to such Court.

The 172nd section empowers a Court of Session to charge a person for an offence committed before it or under its own cognizance. As I understand the expression under its own cognizance it is meant to provide for a case where it is brought under the notice of the Court of Session in the course of a judicial proceeding, that the crime with which the party is to be charged has been committed by him. If on the trial of a prisoner before a Court of Session, a witness gives evidence which contradicts that given by the same witness before the committing officer, and there is no evidence whatever to show which statement is true, it appears to me that it cannot be said to be within or under the cognizance of the Sessions Judge that the witness has given false evidence before the committing officer. What is brought under the cognizance of the Judge is that the witness may have given false evidence before the committing officer. It appears to me that without further inquiry the case is not ripe for commitment.

To apply a simple test, if the Judge, in making out a commitment of the prisoner for trial before himself on a charge of giving false evidence before the Assistant Commissioner, had attempted to recite the facts which are necessary to give him jurisdiction, he could not have written that it had come under his cognizance that the prisoner has committed an offence punishable u/s 193 of the Indian Penal Code by giving false evidence in the Court of the Assistant Commissioner, and therefore he would at once have been stopped if he had attempted to draw out a commitment on such a charge. I did not fully explain my views on this subject in the case of Queen v. Matikhowa 3 B.L.R.A.Cr. 36 = 12 W.R. Cr. 31. The Judicial Commissioner put the prisoner on his trial on the same day on which he had given evidence in the case against Tahiram. There seems to have been undue haste. I fear that the Judicial Commissioner did not give himself time for reflection, or the prisoner a fair opportunity to prepare his defence. Though the substantial question was whether the prisoner saw Tahiram set fire to the houses or not, the Judicial Commissioner did not examine Tahiram or any other witness to show that the charge was false. There is not on the record any contradiction of the prisoner''s statement that Tahiram did set fire to the houses.

If the prisoner saw Tahiram set fire to the houses, his story is in the main true, and neither the Judge nor the Jury in the absence of evidence had a right to assume as against the prisoner that Tahiram did not set fire to them. But suppose that the variance between the story told by the witness before the Assistant Commissioner of Nowgong and that before the Judge shew that both cannot be true, it would follow that one must be false, or at least inaccurate. But it is one thing to show that a particular statement made by a witness is inaccurate or even false, to say that a Judge cannot safely act, or ought to disbelieve the evidence of that witness because part of it cannot be true; and another to say that the witness has intentionally given false evidence. Every judicial officer knows from experience that if a person speaking from memory of a transaction which be has witnessed repeats the story after the interval of a few weeks, he will not on the second occasion relate what he has seen in the same words, nor unless he is assisted or his memory refreshed will he probably give the same details on each occasion. At one time one fact, on another occasion another fact will present itself more prominently to his memory or imagination. Such variances will occur between statements made at different times by honest people intending to tell nothing more than the exact truth, speaking entirely at their case and having the full command of their faculties. Such variances become more considerable if the speaker is in any way deprived of his self possession or hurried or confounded by questions which he understands but imperfectly. To overlook the difference between the making of contradictory statements by a witness under examination, and the giving of intentional false evidence is to shut one''s eyes to the infirmities of human memory, to fail to understand how slow are the intellects, and how imperfect the powers of expression of uneducated peasants; how readily the fears of such people are excited in Courts of Justice; how completely they lose nerve and presence of mind when frightened. I firmly believe that if a witness could be convicted upon alternative charges of giving false evidence on contradictions of such a character as those supposed to exist in the present case, no native witness of the lower classes, subjected to cross-examination by an adroit and perhaps not over-scrupulous advocate, would be safe.

I now come particularly to the facts of the present case. I may premise that the house of Dobhagu, from which the prisoner says be came out and saw the fire, is close to the house of Kaminohola. Beyond Kaminohola''s house is a dung shed, and beyond that is the house of Shiva, Before the Assistant Commissioner the prisoner said "just before day" break we saw a light outside and went out to see what it was : we saw "that complainant''s brother''s (Kaminohola''s) house was on fire, and by the light of that fire we saw a man named Tahiram putting his hand into the roof of Shiva''s house which is close to complainant''s house : when I saw the accused putting his hand into the roof of Shiva''s house, I saw there was something in his hand which was smoking; the fire broke out in Shiva''s house almost immediately afterwards."

The statement which has been treated by the Judicial Commissioner as opposed to that given by the witness before the Assistant Commissioner, is this:--"When I first came out and saw the fire, through the light of the flame I saw the accused at the dung shed."

Now it must be observed that before the Judicial Commissioner the prisoner states where he first saw Tahiram at the time of the fire. The prisoner''s statement on that subject before the Judge is not directly contradicted by any statement made by him before the Assistant Commissioner. The prisoner was not asked and did not state before the Assistant Commissioner where he first saw Tahiram. It is not impossible that Tahiram may have been at the dung shed which was close to the house of Shiva when the prisoner first saw him, and may have then put his hand into the thatch of Shiva''s house, because the dung shed appears to be close to Shiva''s house. Before the Assistant Commissioner the witness''s mind was directed specially to the point as what Tahiram was doing. Suppose it had been intended to contradict the witness''s statement that be saw Tahiram put fire in the roof of Shiva''s house, if the witness were being cross-examined in a civil suit it would have been only common fairness on the part of the cross-examining counsel to direct the witness''s attention to the point and ask him what Tahiram was doing at the dung shed.

The last answer given by the witness on what is called the cross-examination was I have deposed to all I know." He had said nothing about Tahiram''s putting his hand into the thatch of Shiva''s house. The omission was most important. But before coming to the conclusion that the witness was swearing falsely, the Judicial Commissioner should without alarming him have drawn the witness''s attention directly to the subject on which no explanation had been given, by quietly putting some question direct or indirect to ascertain what the witness could say that Tahiram was doing, such as, did you see Tahiram''s face or his back? Instead of putting any such question of that sort, the Judicial Commissioner asked the witness. How came you to state before the Assistant Commissioner (reading what the witness did say) &c.? The reply is I cannot say what I said before the Magistrate; I may have made a mistake." The Judge does not follow it up by a question:--Then do you mean now to say that you did not see Tahiram put his band at the thatch?

No doubt from the omission by the prisoner of all mention before the Judicial Commissioner of so remarkable a fact as that he himself saw Tahiram put fire into the thatch of Shiva''s house, a strong suspicion arises that the charge may have been a false one. But it is one thing to suspect the truth of evidence and refuse to act upon it, and another to come to the conclusion that it must be certainly false. The strongest suspicion that a witness has spoken falsely will not justify his conviction for giving false evidence. Such an offence must be proved by the clearest and most conclusive testimony.

Now there is a fact which appears on the deposition of the prisoner as recorded, which goes in some degree to confirm his statement as to Tahiram''s presence at the fire. Tahiram on his trial seems to have put a question which be would hardly have put, if he had not been fully aware that there was a fire and that he himself was not far from the scene on the night of the fire. The question is not recorded. But the answer to the question is. I never went in company with Dobhagu on the night in question to beat the accused Tahiram."

If the Judge thought the evidence against Tahiram was false, be should have tried the prisoner on that charge; and called Tahiram and confronted him with the prisoner to prove that it was so. Tahiram might then have been cross-examined. As the case stands, I am of opinion that there is no evidence to support the finding of the Jury. There is no such conflict between the prisoner''s two statements as, taken by itself, shows that he intentionally gave false evidence on either occasion.

The conviction must be quashed and the prisoner released.

Kemp, J.

I concur generally in the remarks of Mr. Justice Norman, and think the prisoner ought to be released. There is to my mind no sufficient evidence that the prisoner intentionally gave false evidence.