JUDGMENT 1. Rai Kissen Bux is the zemindar of Nawa. He was in debt and wanted a loan and his manager applied to the accused Hira Nand Ojha for loan. The loan was advanced on a mortgage of a village of the name of Koeri Pattra. At the same time a lease was executed of the village in favor of Dharam Doyal, Dharam Doyal was recognized by the zemindar of Nawa as his tenant and so far as the zemindar and Dharam Dayal are concerned the parties stood in the relationship of landlord and tenant. Later on, the estate including the village Koeri Pattra came into the possession of the manager under the Encumbered Estates, the estate having been declared encumbered under Act VI of 1876. In a proceeding under sec. 133, C. Cr. P., Hira Nand gave his evidence and in his deposition he stated : "I was not the real thikadar and it was not a furzi transaction," that is to say, he asserted that Dharam Doyal was the real thikadar and not benamidar of himself. Hira Nand has been prosecuted under sec. 193, I.P.C., for this statement made in the proceeding under sec. 133 of the Code, the allegation of the prosecution being that the statement is false and false to the knowledge of Hira Nand. He was convicted by the Deputy Magistrate of Palamow under sec. 193, I.P.C., and sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 500. The conviction and sentence have been affirmed on appeal by the Judicial Commissioner of Chota Nagpur. 2. The case is a curious one It raises the question of benami which arises generally, if not always, in civil cases only. The decision on such questions generally depends on circumstances and probabilities and Courts proceed upon the balance of probabilities. Positive or direct testimony is generally wanting in such cases. In law, the person in whose name a document is executed ought prim facie to have the benefit of the document and he is supposed to be the owner of the property by virtue of the document, or the lessee if the document be a lease. Positive or direct testimony is generally wanting in such cases. In law, the person in whose name a document is executed ought prim facie to have the benefit of the document and he is supposed to be the owner of the property by virtue of the document, or the lessee if the document be a lease. Equitable doctrines are resorted to for the benefit of the true owner or persons who claim benefit on account of such beneficial ownership, but it would be stretching the criminal law too far to import the doctrines of beneficial ownership in such matters. This ground alone is sufficient to show that the proceedings in this case ought not to have been allowed to go on. 3. But apart from the question of benami, there is a further reason why the case should have been dismissed. The charge as originally drawn is in these words:-- "You on or about the 7th day of May 1904 at Leslie gave false evidence in a judicial proceeding, namely, in a case under sec. 133 of the Code, and thereby committed an offence punishable under sec. 193, I.P.C., within my cognizance." The prosecution could not go on such a vague charge. Later on the charge was amended, but the amendment did not improve matters. 4. We next come to the evidence for the prosecution; and notwithstanding that the conclusion arrived at by both the lower Courts is that the transaction of lease in Dharam Doyal's name was benami, the inference is based on findings of fact which do not necessarily lead to such inference. The findings do not entirely exclude the hypothesis of Dharam Doyal having been the real lessee. In order to make out a case against the accused of giving false evidence in a judicial proceeding, it must be shown conclusively that the statement was false. It is not sufficient to show that the probabilities are that the statement was false. 5. Now to the facts found--the first fact found is that Dharam Doyal was a servant of the accused. We do not think that the mere fact that a person is a servant of another raises any presumption that the servant is incapable of holding property except benami for his master. It may be one of the circumstances in favor of the theory of benami, but it is not evidence of much value in itself. 6. We do not think that the mere fact that a person is a servant of another raises any presumption that the servant is incapable of holding property except benami for his master. It may be one of the circumstances in favor of the theory of benami, but it is not evidence of much value in itself. 6. The next fact to which our attention has been drawn is that the negotiations for the lease were conducted by the accused. The case attempted to be proved is that all the negotiations were originally conducted by the accused but the accused changed his mind and said that he would not take the thika but that his servant would take it. There is nothing in such conduct to show that the transaction was benami. No selami was paid and it is not shown that the rent was inadequate. One of the elements to prove a transaction to be benami is the source of the purchase-money. Here no purchase-money was paid and this element of benami is wanting. 7. It is next said that Dharam Doyal kept no account of payment of rent. But this is not unnatural. This was his only property and there was no reason why having this as his only property he should keep regular account. Persons who have not a variety of transactions do not generally in this country keep accounts. The fact that Dharam Doyal did not keep accounts is no evidence of his being a benamidar. 8. Then the next thing to which our attention has been drawn as proving the benami is that the accused took the best lands and claimed right of occupancy in them. That itself might have been the object why he induced his servant to take the thika, so that he might obtain a right of occupancy in the best lands. His intention might have been fraudulent but still he might not have been the real thikadar. 9. The next matter to which our attention has been drawn by the learned vakil for the Crown is that the accounts of Dharam Doyal were settled by the brother of the accused. But such things happens almost every day. Another person, friend or relation settles the account. The person who is beneficially interested does not always settle the accounts. 10. The next matter to which our attention has been drawn by the learned vakil for the Crown is that the accounts of Dharam Doyal were settled by the brother of the accused. But such things happens almost every day. Another person, friend or relation settles the account. The person who is beneficially interested does not always settle the accounts. 10. Lastly our attention has been drawn to the fact that raiyats were occasionally allowed to set off against rent for works done for the accused. The accused and Dharam Doyal were intimately related as master and servant, and it might be that there the dues of tenants were paid in this way. 11. The above are circumstances of suspicion and, may be, of great suspicion but suspicion is not proof. In order to convict a person of the offence of perjury it must be shown that the statement said to have been false could not but be false. 12. We therefore think that no case has been made out on the facts for a conviction of the accused under sec. 193 of the Code. We therefore set aside the conviction and sentence and direct that the fine if paid be refunded. We also direct that the bail-bond executed by accused be also discharged.