Shahzad Khan vs Emperor

Rowland, J.—The petitioner has been convicted u/s 199, I.P.C., and sentenced to three months'' rigorous imprisonment, and an appeal from the conviction has been dismissed by the Sessions Judge of Patna.

The charge was that the petitioner had presented a false affidavit on 23rd May 1932 in the Court of the Munsif of Patna. He had a rent suit pending in that Court against a lady, his tenant, She died, and in the affidavit it was Stated that the date of death as ascertained by the petitioner was 27th February 1932.

The affidavit was accompanied by a petition for substitution of her heirs. The usual notice having been issued, Leyakat, the lady''s husband, filed a counter-affidavit on 31st August 1932, that the date of death of the lady was not correctly stated; she had in fact died on 6th December 1931, and the application for substitution was out of time. The Munsif held an inquiry. He came to the conclusion that the date of the lady''s death was as alleged by her husband and not as stated in the petition of the petitioner, and he directed the presentation of a complaint u/s 476, Criminal P.C., for the prosecution of the petitioner for an offence u/s 199, I.P.C., with the result above stated.

Two points are taken. One is that the Courts should not have held the presentation of the affidavit which is based on information received, to be an offence u/s 199 merely on proof that the information contained in it was not correct. In the lower Court''s judgment the burden of proof, it is said, is wrongly placed on the accused to show both the correctness of the facts stated in his affidavit and his own good faith. It is said that this was an error of law and has led to a miscarriage of justice. The second point taken is that the affidavit filed did not fully comply with the requirements of Order 19, Rule 3, Civil P.C., and therefore was not such a declaration as a Court of justice, public officer or other servant so authorized by law to receive as evidence.

As regards the second point I have been referred to Chandrika Prashad Singh and Others Vs. Hira Lal and Others, and to Padmabati Dasi v. Rasik Lal Dhar (1910) 37 Cal 259, which was followed in the other decision. Both these are decisions in civil cases in which the regularity of affidavits came into question. I do not consider that they are in point in the present case which is governed by the explanation to Section 200:

A declaration which is inadmissible merely upon the ground of some informality is a declaration with in the meaning of Sections 199 and 200.

I shall turn now to the first which is the main point raised. S; 199 provides a penalty for making it "either knows or believes to be false, or does not believe to be true." It is an elementary principle of criminal law that when the section creating an offence mentions in the definition of the offence a particular state of mind on the part of the offender as being an ingredient in the offence the burden of proof is thereby placed on the prosecution to establish that such a state of mind was present in the accused at the time of committing the act charged. The burden of proof, in view of the definition in Section 199, was clearly on the prosecution to show that it the time of making the affidavit the accused either knew or believed it to be false, or did not believe it to be true; There is reference in the judgment of the Sessions Judge to the difficulties that stand in the way of the prosecution in showing such a state of mind on the part of the accused.

He has however invoked the aid of Section 106, Evidence Act, to place on the accused the burden of proof even as to the date of Mt. Fatma''s death, holding that that was a matter particularly within his knowledge. Why the Sessions Judge should say that this was a matter particularly within the knowledge of the petitioner I am at a loss to understand. The petitioner is a resident of Gujri, police station Khajekalan. The lady lived in Lamganj, police station Alamganj.

The persons who best had means of knowing when she died are her husband and her relatives and neighbours. The best evidence to show the date of death would have been the entries in the Death Register kept at the thana. The Death Register of December 1931 did not contain any entry to indicate that her death was reported in that month. There was evidence that on 26th January 1932, the death of the lady was reported to the Munsif''s Court by a petition (Ex. 2) presented through a pleader who has been examined as a witness and says that he had information of her death from her husband Leyakat. This evidence is admissible to corroborate u/s 157, Evidence Act, the evidence of Leyakat to this extent: that the lady was dead before 26th January but the petition did not state any particular date of death and is therefore no corroboration of Leyakat''s evidence that the date of death was 6th December 1931. However the finding of the Courts below that the death of the lady took place in December 1931 is a concurrent finding of fact with which I do not propose to interfere, but having proved this it is still for the prosecution to show that accused knowingly made a false statement in the declaration. It appears from the Sessions Judge''s judgment that he declined to accede to the contention of counsel for the accused that this burden lay on the prosecution As I have said, the prosecution must bear the burden of proving every ingredient which is comprised in the definition of an offence.

The Sessions Judge has held merely because the accused has not proved the contrary by evidence that the prosecution has established that accused made a false statement knowingly in order to bring his petition for substitution within the period of limitation.

He has not based his conclusion on any reasoning or circumstances from which he infers such knowledge on the part of the accused. No doubt there might have been a possible motive for accused to represent the death as having taken place on 27th February even if he was aware that it had taken place earlier, because the earlier date might have frustrated his application for substitution of the lady''s heirs by virtue of the rules of limitation; but to say that there might have been a possible motive does not amount to definite proof of knowledge so as to relieve the prosecution of the burden.

The Sessions Judge thinks it intolerable to place this burden on the prosecution

because it would be an impossible feat for the prosecution to call all the Mohalla people and make them say that they did not inform the accused about the date of death.

Actually if the prosecution had a good case they could very easily have proved accused''s knowledge. For instance, there could be witnesses to establish that the accused was told of the death of the lady and therefore he could not in good faith have made the statement that he did knowing the fact to be otherwise; or failing this the prosecution could have proved that the death of the Musammat was well known, that there was publicity, that at least it had been reported at the thana so that accused had the means of acquainting himself with the date.

There could be in short evidence of several descriptions to establish the necessary ingredient of knowledge or belief of the falsity of the information given in the declaration if it were a fact that accused had such knowledge or belief. In any case the difficulty of proving the ingredients of an offence is no good reason for exempting the prosecution from the duty of proving them before a conviction is recorded.

In cases of perjury the principle is so well known that in most of the decided cases it is not directly stated, but I may refer to Muhammad Ishaq Vs. Emperor, . This was a case where the verification on an application for execution of a decree contained several particulars which were found to be inaccurate. Piggot, J., pointed out that:

it lay on the prosecution to prove, not merely that this verification made by Muhammad Ishaq covered statements which were false in fact, but that in making these statements Muhammad Ishaq either knew or believed the same to be false, or did not believe the same to be true.

In the result the application is allowed, the rule is made absolute, the conviction and the sentence set aside and the accused acquitted.