STATE v. SADASIBA NAIK — 1955 DIGILAW 5 (ORI)

JUDGMENT : Rao, J. - This is an appeal by the State against the order of acquittal of the Respondent-accused who was tried by Sri S.C. Mohanty, Magistrate, 1st Class, Nowrangpur, on a charge of perjury punishable u/s 193 I.P.C. 2. The prosecution was launched by the Additional Sessions Judge, Jeypore u/s 476 Code of Criminal Procedure It is clearly alleged in the complaint that Sadasiba Naik, the accused was examined as P.W. 15 in the Court of the Additional Sessions Judge, Jeypore in Sessions Case No. 38 of 1952 against Jagabandhu Domb and another u/s 302 I.P.C. that he was also examined in the preliminary enquiry by the committing Magistrate as P.W. 13 and that in the Sessions Court he had categorically denied his statement in the committing Court. The relevant statement in the committing Court as P.W. 13, is I saw blood-stains on the earth and the dead body covered with Sargi twigs. There was mark of dragging from the cart track to the spot where the body was lying. The relevant statement in the Sessions Court, as P.W. 15, is I did not state in the committing Court that I found the dead body covered with Sargi twigs. I did not see any marks of dragging or marks of blood at the spot. I did not say to the contrary in the committing Court. The corpse was lying under several Sargi bushes. I watched it till the arrival of the S.I. S.I. held inquest after the dead body was brought out from the bushes. 1 cannot say who brought out. The dead body was examined. None told us that there was any blood mark or marks of dragging. 3. After quoting these two contradictory statements of the accused, the learned Additional Sessions Judge alleged in the complaint that "thus it is clear that the statement made in this Court is inconsistent with those made in the committing Court, The statements made in both the Courts cannot be true and the statements made either in this Court or those made in the committing Court must be false." 4. Two witnesses were examined for the prosecution, P.W. 1, the Bench Clerk of the S.D.M., Nowrangpur (the committing Magistrate) who filed Ext. Two witnesses were examined for the prosecution, P.W. 1, the Bench Clerk of the S.D.M., Nowrangpur (the committing Magistrate) who filed Ext. 1 - the deposition of the accused recorded by the S.D.M. stated that it was read over and explained to the accused who admitted it to be correct, and proved the signature of the S.D.M. as also the signature of the accused in the deposition. P.W. 2 is the Bench Clerk of the Additional Sessions Judge, Jeypore. He stated that the accused was the .witness No. 15 in Sessions Case No. 38 of 1952 and filed Ext. 2 the deposition of the accused recorded by the Additional Sessions Judge and proved Ext. 2(1), the signature of the Additional Sessions Judge and Ext. 2(2), the signature of the accused in the deposition. He also stated that the accused signed after the deposition was read over and explained to him. He also proved the complaint made by the Additional Sessions Judge against the accused u/s 193 I.P.C. for deliberately retracting from his statements made in the committal Comet and filed the copy of the judgment of the Sessions Court which is Ext. 4. 5. On this complaint and the evidence, the trying Magistrate framed a charge against the accused which is to this effect I.S.C. Mohanti, Magistrate, 1st Class (N) hereby charge you Sadasiba Naik (Constable 479) under suspension...that on Of about the 19th of November, 1952 in course of trial of S.C. 38/52 before the Additional Sessions Judge, Jeypore, stated in evidence that "I did not state in the committing Court that I found the dead body covered with Sargi twigs. I did not see any marks of dragging or marks of blood at the spot. I did not say to the contrary in the committing Court. The corpse was lying under several Sargi bushes. I watched it till the arrival of the S.I. S.I. held inquest after the dead body was brought out from the bushes. I cannot say who brought out. The dead body was examined. None told us that there was any blood marks or marks of dragging. which statement you either knew or had reason to believe to be false, and thereby committed an offence punishable u/s 193 of the Indian Penal Code and within my cognizance and I hereby direct that you be tried by the said court on the said charge. 6. None told us that there was any blood marks or marks of dragging. which statement you either knew or had reason to believe to be false, and thereby committed an offence punishable u/s 193 of the Indian Penal Code and within my cognizance and I hereby direct that you be tried by the said court on the said charge. 6. Illustration (b) to Section 236 of the Code of Criminal Procedure says A states on oath before the Magistrate that he saw B hit with a club. Before the sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false. Inspite of this provision in Section 236 of the Code of Criminal Procedure and inspite of the categorical statement in the complaint made by the learned Additional Sessions Judge, the trying Magistrate has framed a charge simply mentioning the statement made in the Court of the Additional Sessions Judge and saying that it was a false statement which the accused either knew or had reasons to believe to be false, thus casting a heavy burden on the prosecution to prove the statement to be false which under the facts of this case is not necessary to prove. 7. In the examination of the accused u/s 342 of the Code of Criminal Procedure, the Magistrate not only put to the accused the statement made in the Sessions Court but also mentioned therein that he stated to the contrary in the committing Magistrate's Court, and asked him what the accused had to say. The accused pleaded not guilty and stated that he could not remember what the statements were. 8. On this material, the trying Magistrate acquitted the accused. He observed that the only fact for consideration was whether the evidence of the accused was intentionally false so as to materially affect the judgment of the case. The Magistrate, in his judgment, quoted the statement of the accused in the committing Court as "he saw the dead body under the Sargi twigs", whereas the statement before the committing Magistrate was "I saw blood-stains on the earth and the dead body covered with Sargi twigs". The Magistrate also quoted a portion of the statement in the Sessions Court. 'The corpse was lying under several sargi bushes". The Magistrate also quoted a portion of the statement in the Sessions Court. 'The corpse was lying under several sargi bushes". By comparing these two statements, the Magistrate came to the conclusion that the two statements carry the same meaning and for an illiterate man like the accused both the statements are not very much contradictory to one another. He opened that the case ended in acquittal more for the absence of adequate evidence and discrepancies in the deposition of the two eye-witnesses P.Ws. 5 and 6 and not from the contradictory evidence of the accused as could be seen from the judgment of the learned Additional Sessions Judge. He also found that the subject matter of the contradictory statements of the accused constable was not very much material to the result of the proceedings, and that the materiality of statement was always important in determining the question of intention. On these findings he acquitted the accused. 9. In my opinion, the judgment of the trying Magistrate is a deliberate perversion not only of the facts of the case but also of the la w on the subject. 10. From Ext. 4 - the judgment of the learned Additional Sessions Judge, it can be seen that the case against the two accused in, the Sessions Court was u/s 302 of the Indian Penal Code for having murdered Gangadhar Domb. The prosecution case was that those two accused along with the deceased and P.W. 5 were returning from the house of Marka Domb (P.W. 2) after taking drinks and food that the two accused were carrying an axe each and were walking behind the accused that while they were proceeding in their way along a cart track through the forest, accused Jagabandhu suddenly rushed from behind and dealt a blow with his axe on the nape of the neck of the deceased i that the deceased fell down with bleeding injury i that accused Suna Domb rushed and gave another blow with his axe on the neck of the deceased and that P.W. 5 was greatly terrified by the two accused and consequently ran away. P.W. 5 was the only eye-witness in the case and P.W. 6 who is a Forest Guard went there immediately afterwards, saw accused Jagabandhu covering something with branches at some distance from the cart track and the other accused throwing dust on blood spots on the track, P.W. 6 also stated that he saw marks of dragging and blood spots. P.Ws. 9 to 12 were examined to show that they saw marks of dragging and blood spots from the cart track to the place of the concealment of the dead body. P.W. 16, the A.S.I. did not mention in the inquest report that the dead body was found under cover of branches. P.W. 16 did not also speak to the existence of the blood spots and the marks of dragging and even went to the extent of saying that he found the dead body covered with a piece of cloth up to the neck, which cloth was never produced in the Court. In this state of evidence in the Sessions Court, P.W. 15 (the accused in the present case) who was deputed to keep watch over the dead body made his statement in the Sessions Court. In the command Certificate it was mentioned that P.W. 15 was not only to keep watch over the dead body, but also try to preserve the marks of dragging and blood spots, if there be any. The learned Additional Sessions Judge observed in his judgment that "the fact that the dead body was lying covered with twigs and branches clearly raises a suspicion a bout the nature of the death, but that having regard to the low intellect of P.W s. 9 to 12. It is just possible that they could not read suspicion but that it was really astounding that P.W. 16 overlooked it, and tried to cover up his folly by going to the extent of denying that the dead body was found covered under twigs and branches." The learned Additional Sessions Judge could not rely on the evidence of P.Ws. It is just possible that they could not read suspicion but that it was really astounding that P.W. 16 overlooked it, and tried to cover up his folly by going to the extent of denying that the dead body was found covered under twigs and branches." The learned Additional Sessions Judge could not rely on the evidence of P.Ws. 9 to 12 on account of P.W. 16 denying that the dead body was covered with twigs and P.W. 15 (accused in this case) going back upon the statement made in the committing Court and saying before the Additional Sessions Judge that he did not notice any blood spots or marks of dragging and that the dead body was not lying covered under twigs and branches. Had P.W. 15 stated before the Additional Sessions Judge what he stated before the committing Court, perhaps the Additional Sessions Judge would have taken these facts as a strong piece of circumstantial evidence in the case. The learned Additional Sessions Judge came to the conclusion in his Judgment that P.W. 15 had deliberately resiled from the statement in the committing Court and probably because he had a soft corner for the A.S.I. (P.W. 16). The concluding paragraph of the judgment of the learned Additional Sessions Judge also shows that one of the A.S.Is. - P.W. 16 started investigation with a passive mind that the death may have been due to excessive drink and there was nothing suspicious about the death, and the other, P.W. 17 started with over-confidence that it was a clear case of murder and tried to secure evidence favouring it, and that consequently on account of defective investigation the case failed. From the observations made in this judgment and the charge as framed by the Magistrate, the prosecution ought to have examined some witnesses who were examined in the Sessions Court to prove the statement to be false though had the charge been correctly framed as prescribed by law that evidence may not be necessary. 11. In my opinion, the Magistrate is not correct in saying that the Sessions Case failed on account of the discrepant evidence of P.Ws. 5 and 6, even on the assumption that it is necessary to prove that the evidence of the accused was false so as to materially affect the judgment of the case. 12. 11. In my opinion, the Magistrate is not correct in saying that the Sessions Case failed on account of the discrepant evidence of P.Ws. 5 and 6, even on the assumption that it is necessary to prove that the evidence of the accused was false so as to materially affect the judgment of the case. 12. Section 193 of the Indian Penal Code says Whoever intentionally gives false evidence in any stage of a judicial proceeding...shall be punished...and whoever intentionally gives or fabricates false evidence in any other case, shall be punished.... The Section does not contemplate that the evidence which is false should materially affect the case. As the section stands, it is enough if the evidence is intentionally false. 13. Section 191 defines what is 'giving false evidence' Section 191 says Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. In neither Section 191 nor Section 193 is it stated that the false evidence should be material to the case in which it is given, The only essential is that the statement was made by a person who was bound by an oath to state the truth, and that it was false which he either knows or believes to be false or does not believe to be true. That this is the correct law on the subject since the passing of the Indian Penal Code and the Code of Criminal Procedure at least if not prior to that date, is clear from the following statement of Mayne. 14. Mayne in his Criminal Law, Fourth Edition, Part II, at page 357 says Another point that is often raised is whether the evidence should be material to the adjudication of the matter under enquiry. Macpherson J. in 16 Weekly Reports (Criminal) P. 37, said the words of Section 191 are very general and do not contain any limitation that the statement made shall have any bearing upon the matter in issue. Macpherson J. in 16 Weekly Reports (Criminal) P. 37, said the words of Section 191 are very general and do not contain any limitation that the statement made shall have any bearing upon the matter in issue. It is sufficient to bring a case within the section if the false evidence is intentionally given with the intention of deceiving the Court and of leading it to be supposed that which he states is true. But if the evidence is proved to be false and false to the knowledge of the accused, the conclusions is irresistible that he intended to give false evidence. But if the evidence is proved to be false and false to the knowledge of the accused, the conclusions is irresistible that he intended to give false evidence. It may also be seen that though under the Perjury Act in England, no guilt is incurred by a wilful false statement unless it be material to the proceeding or the purpose for which it was made, yet the English Courts have construed the section very narrowly, On this matter, it is observed in Kenny's Outlines of Criminal Law, 1952, at page 349- On the other hand, a rule of peculiar, and perhaps unfortunate, leniency is borrowed by the Act from the older law, for these two important offences in Grade A and also for one-viz., B of those that are less heinous, For in these three crimes no guilt is incurred by a wilful false statement unless it be material to the proceeding, or the purpose, for which it was made, This lenient old rule often enabled witnesses, who had wilfully given false evidence, to escape all punishments, However, the Judges construe the rule very narrowly, Thus they have held that the evidence need not be material to the actual issue of the litigation a lie about his solvency by a man who merely offers himself as bail is sufficiently material to a criminal prosecution, Again evidence may be sufficiently 'material' even though it were material, not intrinsically but only by its facilitating the Jury's acceptance of other testimony which had an intrinsic materiality, Thus mere trivial details, mentioned by a witness in giving his account of a transaction, may become important by their leading the jury, to believe that his knowledge of the transaction is complete, and his evidence therefore likely to be accurate, On the same ground, all statements made by a witness as to matters that merely affect his credibility are material, e.g., his denial of having been convicted of a crime, And even if the false evidence were legally inadmissible, yet this need not prevent its being regarded as 'material' enough to form the subject of an indictment for perjury, There is, for instance, a rule that when a witness answers questions that relate merely to his own credibility, his answers are to be taken as final, so that no other witness can legally be brought to contradict them. Yet if, by a breach of this rule, some second witness be permitted to give this contradiction, and he gives it falsely, he may be indicted for perjury for, so soon as the contradiction was admitted, it did affect the credit given to the previous witness, and so became material. and this question of materiality is under the English Act a question of law and, is for the Judge. 15. Thus it can be seen that under the English law, though the statute enacts that the false evidence complained of must be material to the case, yet the decisions have construed the section very narrowly so as to make it an offence in the instances quoted above in Kenny's Outlines of Criminal Law, As already observed, Section 191 does not speak of the materiality of the statement being necessary at all, There is therefore no doubt that to constitute an offence u/s 193 of the Indian Penal Code it is not necessary that the false statement should be material to the case. In my opinion, therefore, the trying Magistrate erred in law in holding that the subject matter of the contradictory statements of the accused constable was not very much material to the result of the proceedings and that materiality of statement is therefore always important in determining the question of intention. 16. The trying Magistrate also committed an error of law in holding that the statements are not intentionally false. The accused had made a statement before the committing Magistrate and made a contradictory statement before the Sessions Court, The statement made by the accused in the Committing Magistrate's Court was put to him and he stated in the Sessions Court that he never made such statement before the committing Magistrate, The gist of the offence u/s 193 is the giving or fabrication of false evidence intentionally, Where knowledge of falsity is proved, intention is readily presumed. The Magistrate is therefore, wrong in saying that the statement as it appears might be inaccurate, unambiguous or uncertain, but it is not on that account taken to be intentionally false. 17. The acquittal of the accused by the Magistrate is therefore contrary to the law on the subject of perjury and is also wrong on the facts present in the case. 18. 17. The acquittal of the accused by the Magistrate is therefore contrary to the law on the subject of perjury and is also wrong on the facts present in the case. 18. The Magistrate framed the charge against the accused in this case ignoring the imperative provisions of law contained in the Code of Criminal Procedure and without looking into the form of charge contemplated for a case of this sot, It is regrettable that the Court Sub-Inspector who conduct the case also did not bring it to the notice of the Court as to how a charge, in the circumstances of this case, is to be framed, The complaint made by the learned Additional Sessions Judge quotes the two contradictory statement made by the accused in the committing Court as well as in the Sessions Court and says that thus it is clear that the statement made in this Court is inconsistent with those made in the committing Court, the statements made in both the Courts cannot be true and the statements made either in this Court or those made in the committing Court must be false. 19. The law with regard to the contradictory statements is thus stated in Mayne's Criminal Law, Fourth Edition, Part II, at page 360 The necessity of proving that any particular statement which was charged as being false evidence, was false and false to the knowledge of the party making it, raised a considerable difficulty, where an accused had made two statements so contradictory that one or other of them must be false, It might be difficulty or impossible to prove which of the two was false and if the prosecution selected one of the two as being false, the Tribunal which tried the case might think it was true, and acquit the prisoner, In Madras Regulation III of 1826 authorized the prosecution to prove the two contradictory statements, which was sufficient to secure a conviction, if the Judge was of opinion that in one or other of them the accused must have been telling a wilful untruth.... The original draft of the Penal Code contained nothing bearing upon the subject, but the Indian Law Commissioners, in their second Report of 1847 expressed a strong opinion that the mere fact that a person had in any stage of a Judicial proceeding given a statement on oath which directly and positively contradicted another statement similarly given, should render him liable to punishment. The Penal Code and Code of Criminal Procedure of 1861 which came into force on the same day contained provisions which were apparently intended to carry out this view. At first, it was assumed that, even in the case of contradictory statements, it was necessary to prove which was false, and many conflicting decisions were recorded, even after a contrary ruling had been given. Finally, it was agreed by all the High Courts, that where the two statements were so irreconcilable, that one or other must necessarily be false, it was unnecessary to offer any evidence to negative either assertion. This was so decided upon the Code of Criminal Procedure of 1861 by a Full Bench of the Calcutta High Court in 6 W.R. (Crl) 65, and by the Madras High Court in 4 M.H.C.R. 51 upon the Code of Criminal Procedure of 1872 by a Full Bench of the Calcutta High Court in 13 B.L.R. 324 upon the Code of Criminal Procedure of 1882 by the High Court of Allahabad- ILR All. 44, and by the Bombay High Court- ILR 10 Bom. 124. The reason is thus stated in 6 M.H.C.R. 324, that the law makes no distinction between that testimony of a person directly falsifying the alleged false statement and the contradictory statement of the accused himself such a contradictory statement being on admission inconsistant with his innocence. 20. Justice Morris in Bom. L. Rep. at page 335 observes The course allowed by the law was adopted of framing a charge containing two contradictory statements of such a nature that the two, when taken in combination, disclosed the specific offence of intentionally giving false evidence. Accordingly, each of the statements relied on must be sufficient to constitute the offence charged. 21. L. Rep. at page 335 observes The course allowed by the law was adopted of framing a charge containing two contradictory statements of such a nature that the two, when taken in combination, disclosed the specific offence of intentionally giving false evidence. Accordingly, each of the statements relied on must be sufficient to constitute the offence charged. 21. Inspite of the averment in the complaint, inspite of the law on the subject and inspite of the fact that the Magistrate was conscious that the two contradictory statements formed the gist of the offence as can be seen from the questions put to the accused in the examination u/s 342 Code of Criminal Procedure, the charge is only to the effect that he made a particular statement in the Sessions Court which is false to the knowledge of the accused and did not include the statement in .the committing Court. As already stated above, illustration (b) to Section 236 clearly shows that in cases of this type a charge may be framed alternatively and the accused convicted of intentionally giving false evidence although it cannot be proved which of these contradictory statements was false, and Schedule V of the Code of Criminal Procedure gives the form of a charge to be framed. . 22. Schedule V - XXVIII(II) No. 4 the form given there is that- ...That you on or about the...day of...at...in the course of the enquiry into...before stated in evidence that...and that you, or...on about the...day of...at...in the course of the trial...before...stated in the evidence that...one of which statements you either knew or believed to be false, or did not believe to be true, and thereby committed an offence punishable u/s 193 of the Indian Penal Code, and within the cognizance of the Court of Session or High Court, or within my cognizance. Had a charge been framed as required by law, there would have been no miscarriage of justice in the case. 23. Had a charge been framed as required by law, there would have been no miscarriage of justice in the case. 23. As observed by the learned Additional Sessions Judge in the judgment of the Sessions case, there (sic-was) a defective investigation in this case P.W. 16 (the A.S.I.) in the sessions case had, as observed by the learned Additional Sessions Judge, stated a lie in saying that the dead body was covered with a piece of cloth up to the neck and that he overlooked the fact that the dead body was covered with twigs and branches. He also observed that P.W. 15, the present accused has deliberately resiled from his statement in the committing Court and probably because he has a soft corner for the A.S.I. (P.W. 16). On the circumstances present in this case, I am forced to opine in view of the fact that the accused is a police constable and P.W. 16 is an A.S.I., the charge against the accused in this case is wrongly framed. 24. The learned Assistant Government Advocate wanted us to amend the charge and as the evidence is complete, to dispose of the case finally. But I do not think, I would be justified in accepting this contention on behalf of the State all the charge framed and the evidence adduced by the prosecution the accused might have been under the impression that no case was made out against him and that the charge was not according to law He would be very greatly prejudiced if an opportunity is not given to him to answer the charge which we direct should be framed against him on the facts of this case. 25. Mr. Naba Kumar Das, the learned Counsel for the accused contends that as there is no evidence that the statements were made on oath and that oath was administered to the accused, the prosecution should not be given an opportunity to fill up the lacuna in the case. I cannot accept this contention. By the Indian Evidence Act, Section 114, Clause (e), the Court may presume that judicial and official acts have been regularly performed. I cannot accept this contention. By the Indian Evidence Act, Section 114, Clause (e), the Court may presume that judicial and official acts have been regularly performed. The result of this provision is that the legal obligation to tell the truth attaches to a witness by the mere fact that he gives testimony as such in a Court where he could legally be put on oath, whether in fact he has been sworn or not, and whether the oath has been administered in a binding form or not. Accordingly in the case of 19 Calcutta 355 where the accused was charged u/s 193 and no evidence was forth coming that he had been actually affirmed before giving evidence, the Court, independently of the presumption that he had been affirmed said,- "It seems clear hat the offence of giving false evidence may be committed, although the person giving evidence has been neither, sworn nor affirmed." In this case, the two depositions of the accused are filed and proved and they show that the statements were .made after the oath was administered and they are to be presumed to have been performed. 26. I am conscious that this Court should not set aside an acquittal, as observed by the Supreme Court in the recent decisions, lightly. But, in my opinion, there are compelling and substantial reasons why the acquittal should be set aside in this case The charge itself was framed incorrectly against the accused contrary to the provisions of law and in my opinion deliberately. The contradictory, statements prima facie how that the accused made a false statement intentionally. There are innumerable instances in sessions case where important witnesses for the prosecution resile from the statements made by them in the committing court in consequence of which sometimes really guilty persons escape punishment and in this case the prosecution witness who resiled from the statement in the committing Court is a police constable. The police are entrusted with responsible duty of investigating a crime and .placing all the available materials before the Court and assisting the Court by making true statements. On account of the. Judgment of acquittal contrary to law and on account of the contradictory statement made by the police officer, the State, had to come up in appeal to this Court against the acquittal. On account of the. Judgment of acquittal contrary to law and on account of the contradictory statement made by the police officer, the State, had to come up in appeal to this Court against the acquittal. There are, in this case, in my opinion compelling and substantial reasons for setting aside the acquittal. I, therefore, set aside the acquittal of the accused and for the reasons stated above, send back the case for retrial after framing a proper charge and taking evidence relevant to the case. The District Magistrate is directed to send the case to a competent Magistrate and see that the prosecution is conducted not by a police prosecutor but by a lawyer appointed by the State if the services of the Public Prosecutor cannot be secured. 27. The Magistrate to whom this case will be sent for trial should not in any way, be influenced by any observation made by me in the course of this judgment but should come to an independent conclusion on the guilt or otherwise of the accused after framing a proper charge and taking evidence in the case. I have tried only to state the correct law on the subject of contradictory statements and how the charge is to be framed as I view it. 28. I cannot but observe before closing this judgment that the conduct and disposal of this case illustrate the necessity of separating the executive and judiciary. Narasimham, J. 29. I agree. Acquittal set aside and case sent back for retrial.