Suba Singh and Others vs Emperor

Dhavle, J.—This is an appeal u/s 476B, Criminal P.C., against a decision of the Additional Sessions Judge of Gaya to prosecute the three petitioners u/s 193, Penal Code, in respect of contradictory statements made by them in course of a sessions trial held by him and previously in the course of the commitment proceedings.

The learned Judge below observed that mere perusal of the statements alleged to have been made by the petitioners in the two Courts was sufficient to show that false statements had been made, and he declined to allow any locus poenitenti� apparently because of the interval between the depositions in the committing Court and those in the Court of Session. The depositions related to a case of rioting with an offence u/s 304, Penal Code, and the learned Judge said that in cases of so grave a nature it wag clearly against the public interest that perjured statements should be allowed to be made with impunity.

It has been repeatedly pointed out how the fact that a witness appears to have made contradictory statements at two different stages of a case is not by itself always sufficient to justify his prosecution for per. jury. Not only do such contradictions frequently arise from such causes as mere carelessness or exaggeration due to the inability of ignorant witnesses to keep apart what they really saw from what they have since been hearing from others about the occurrence, but they may testify to the skill of the cross-examiner in inducing witnesses, notwithstanding previous stories to the contrary, to tell the truth at the sessions trial.

The fact that the evidence is given in a case of a grave nature should only make the Court the more careful to weigh all the circumstances before embarking on prosecutions for perjury on the basis of contradictions, for, as was pointed out in Pragi v. Emperor AIR 1936 Oudh 373:

It is in the interests of the Crown as well as in the interests of justice that prosecution witnesses should be free to tell the truth to the Court of Sessions irrespective of whatever evidence they may have given in the Court of the committing Magistrate.

What the learned Sessions Judge should have considered was the character of the contradictions, and this he has failed to do. Nor has he made it clear for which particular contradictions he considered it necessary to proceed against any of the petitioners. What he did was to mark in red certain passages in the copies of the depositions given to the petitioners in calling upon them to show cause why they should not be prosecuted for perjury in respect of them, and finally to decide to prosecute without any consideration of any specific contradictions. And further, the record does not by any means make it clear what passages exactly from the depositions were so marked.

I understand however from learned Counsel for the petitioner Suba Singh that the marked passage from this man''s deposition before the committing Magistrate was:

I remember about the last survey. My lands were recorded in the name of my father. Even at the time of survey the disputed land was in possession of Deodhari Singh.

(In the original deposition this passage is marked in blue, like one sentence in the examination-in-chief of another petitioner Kirit Singh in the Court of Session, though several sentences in cross-examination are marked in red.) At the trial, Suba Singh deposed:

I was present at the time of survey. My father got his name recorded. I do not remember the survey. I cannot remember if I told the S.D.O., that I could remember the survey. I cannot remember in whose possession the disputed land was at the time of survey. The survey was about 26-27 years ago. I saw Deodhari in possession 18 to 20 years after the survey. I cannot remember if I deposed before the S.D.O. that Deodhari was in possession at the time of survey. I have had hash since the age of 15-16 years. I cannot remember if I told the S.D.O. that I had seen Deodhari in possession since my hosh.

It is impossible to say from the papers before me what contradictions the learned Judge bad in mind when he decided to prosecute this petitioner. Some of them are plainly not irreconcilable. The petitioner does however seem to have gone back upon one or two statements about the last survey, but that was an affair of 26 or 27 years ago. It seems to me that those contradictions are moreover, far from material, the important point being that the petitioner still continues to be a witness to Deodhari Singh''s possession, though not indeed from the time of the Record of Rights. He was apparently a very young man at the time of the survey, and to expect absolute accuracy from witnesses of this kind in such matters on pain of prosecution for perjury will merely result in preventing them from admitting the truth in the Court of Session. In my opinion, the learned Judge would have been better advised in refraining from prosecuting the petitioner for perjury on the basis of such contradictions.

Coming to Nnurangi Singh, this petitioner claimed to be an eye-witness to the riot and homicide (Section 304) and spoke in the commitment proceedings of two of the accused striking Deodhari Singh (the man who lost his life in the affair) with lathis and the latter falling down. In his cross-examination before the Magistrate he said that Rambilas Lal, one of the accused, was not on horseback but was on foot. At the trial however he said in examination-in-chief that Rambilas was on horse (back), though in cross-examination he had to admit that Deodhari was surrounded by a large number of men at the time of the assault and that therefore he could not see what he (Deodhari) was doing, nor what the people surrounding him were doing, nor whose lathi struck Deodhari. This is plainly not a case of correcting misstatements previously made through inadvertence and reverting to the truth. The man had obviously been making conscious improvements upon what he had really seen, and doing so without any excuse that can be seen at the present moment.

Petitioner 3, Kirit Singh, spoke in the commitment proceedings of himself and his uncle stopping the rioters from moving the ploughs. In the Court of Session, he denied obstructing any plough himself and said that he could not remember if he had told the Deputy Magistrate that his uncle and himself had obstructed the ploughs. It seems to me that this is precisely the kind of contradiction which ought not to be made the subject of a prosecution for perjury. There is also some contradiction about the malik''s possession over some plots of land, but I do not think that anything very much turns on it. The gravamen of the proceeding against this petitioner, I take it, is the part that he assigns to the accused Mukhdeo Singh in the assault on himself.

In his cross-examination he had admitted before the Magistrate that Mukhdeo Singh "is crippled from both hands." In the Court of Session however he again spoke of Mukhdeo Singh among others assaulting him with lathis, and in his cross-examination said "Mukhdeo wielded the lathi with both hands. I did not tell the Deputy Magistrate that Mukhdeo is crippled in both hands." The petitioner may or may not have remembered when deposing in the sessions trial what exactly he had stated in the commitment proceedings, but Mukhdeo''s physical disability is not a matter on which a witness of his standing could be mistaken either on one occasion or on the other. The inference is that the part he repeatedly assigned to Mukhdeo is false. The learned Judge below had Mukhdeo before him at the Sessions trial and said in his judgment that the man''s hands appeared both to be crippled. No plausible explanation has been offered of how the petitioner first admitted, and afterwards, in substance went back upon, Mukhdeo''s disability. There is also no reason to think on present materials that he went back upon his former statements in the interests of truth. He has therefore been rightly considered by the learned Judge below to be a man who ought to be prosecuted.

It is usual, as it is so very desirable, in cases of perjury by contradictory statements for the prosecuting Court not to leave the matter at large as has been done in the present case, but to specify the assignments of perjury, so that the Magistrate who deals with the case will know precisely what it is for which the accused is being proceeded against.

The result is that the prosecution of Suba must be quashed and the complaint, if any, made against him by the learned Additional Sessions Judge withdrawn. The appeal of the other two petitioners is dismissed.