- (1.) THIS application in revision has been made by Kanji, who has been convicted by the Sub-Divisional Magistrate, Jhalwar, under Section 193, I. P. C. , and sentenced to one year's rigorous imprisonment and a fine of Rs. 250/-, and in default of payment of fine to undergo three months' rigorous imprisonment.
(2.) THE prosecution case against him is that there was a murder of Mst. Bhonri and her mother Mst. Rami on the night between the 22nd and 23rd of March, 1949. Bhonri was the wife of one Bherun Lal of village Karodia in Jhalawar District. A police report was made at the police station Himmat Garh by Bherunlal alleging that one Irphan of village Karodia had murdered both the women. This report was made on 23-3-1949. Irphan who had been seized by Bherunlal's party was produced before the police at the time of the making of the report. ' Three days later, that is, on 26-3-1949, Bherunlal himself was arrested on the information of one Asaram Patel of village Karodia in connection with the same murder. THE police was not satisfied that Irphan was the murderer, and, therefore, he was not challaned. A challan was, however, laid in the Court of Munsif Magistrate, First Class, Pirawa, against Bherunlal under Section 302, I. P. C. , and the Magistrate committed him to take his trial before the Sessions Judge, Jhalwar. THE Sessions Judge, Jhalawar, acquitted Bherunlal but at the same time made a complaint against Kanji, the accused in the present case, for perjury under Section 193, I. P. C. on the ground that as a prosecution witness he had made certain statements which he knew to be false. THE complaint was made in the Court of Sub-Divisional Magistrate, Jhalawar. THE accused denied the charge. He was confronted with certain portions of his statements in the Committing Magistrate's Court and the Sessions Court in the murder case against Bherunlal, and he admitted that he had made those statements. He was asked whether his statement in the Committing Magistrate's Court that he had not seen a sword in the hand of Irphan Khan when he was coming out of the witness' house, and that he saw a sword in Irphan's hand when the witness saw him at Bherunlal's house was correct or whether his statement before the Sessions Court that he had seen a sword in the hand of Irphan Khan at the time of his coming out of the witness' house was correct. To this the accused replied that his statement before the Sessions Court that he had seen a sword in the hand of Irphan Khan when he was coming out of the witness' house was correct, and the statement in the Committing Magistrate's Court that he did not see a sword in Irphan's hand at that time on account of darkness was made out of confusion, and was not correct. He was also confronted with his long statement made in the Sessions Court on 6-9-1949, in which at one place he had stated that he had told Bherunlal that Irphan Khan was the murderer of Mst. Rami and Bhonri, without seeing the dead bodies, on suspicion, when he saw Irphan Khan coming out from his (Kanji's) house, whereas in another portion he said that he told this thing to Bherunlal after he had seen the dead bodies of Mst. Bhonri & Rami. To this long statement, the accused replied that the statement was correct. THE learned Magistrate found that the accused had knowingly made a false statement in the two courts, & convicted & sentenced him as above. On appeal, the learned Additional Sessions Judge, Jhalawar, has. upheld his conviction and sentence, and dismissed the appeal. Kanji has come in revision to this Court. It was argued by Mr. D. B. Bajpayee, appearing on behalf of the accused, that it was not proved beyond reasonable doubt that the statements complained of were false to the knowledge of the accused. It was argued that the only evidence on the basis of which the statements were held to be perjured was the oral evidence of Irphan Khan, Sahabzada Mahmood Ali Khan and Asaram. Irphan Khan is admittedly a relation of Mahmood Ali Khan and, therefore, the latter was interested in the former. It was also argued that there were two parties, one of Hindu and the other of Muslims in the village. Irphau Khan had been convicted some time before the murder case against Bherunlal for killing a bull, whose skin was recovered from the house of Sahatazada Mahmood Ali Khan, and a gun and a knife with which the bull was shot and the skin was removed were also recovered from his house. Mahmood Ali Khan was, therefore, proved to be partial to Irphan Khan, and his testimony was simply with a view to save the skin of Irphan Khan. As regards the third witness, Asaram, it was argued that he was formerly the sole Patel in the village, and afterwards the accused Kanji and his nephew Onkarlal were also appointed Patels, and the witness, therefore, had a grudge against the accused. Moreover, it was in the evidence of Mahmood Alt Khan that he had come to Know that Bherun-lal had killed Mst. Rami and Bhonri on the date of murder, but the latter was not arrested till 26-3-1949. According to Kamruddin, Sub-Inspector, the Police came to know for the first time from the statement of Asaram on 26-3-1949, that Bherun-lal was the real murderer. If the evidence of Mahmood Ali Khan that he came to know on the night of the murder itself that Bherunlal was the murderer, it was improbable that he should not have been arrested on that very day, and the police should not have come to know about it till 26-3-1949. It was further argued that at best there was oath against oath, and conviction for perjury could not be made under these circumstances. It was also argued that no specific portions from the evidence in the two courts which were alleged to be contradictory were placed before the accused so that he might have had an opportunity of reconciling them. The conviction of the accused was, therefore, bad for all these reasons. The learned Advocate appearing on behalf of the State argued that it was not for this Court in revision to weigh the evidence of the witnesses produced in the case. It was enough that both the lower courts had believed the prosecution evidence and this Court had to take that evidence as true. It was further argued that although specific portions of the statements which were contradictory were not placed before the accused, yet substantial portions containing those statements were placed before the accused, and he was asked to explain them. The accused admitted the statements' to be correct, and in one case only he said that the statement before the Committing Magistrate about his not seeing a sword in the hand of Irphan Khan when he was coming out of his (Kanji's) house was not correct and was made out of confusion. The accused, therefore, had sufficient notice as to what was the case which he was going to meet, and he was not prejudiced. Further it was argued that if it was considered necessary that specific portions should have been clearly placed before the accused, the case might be remanded for trial I have considered the arguments of both the learned Counsel. It appears from the charge-sheet that the learned Magistrate thought that there was some contradiction between the statements made in the Committing Magistrate's Court and those made in the Sessions Court. He also thought that the statements dated 6th and 15th September, 1949, themselves contained contradictions. But the learned Magistrate did not make it clear to the accused as to what were those contradictory statements which he had to explain. Only that portion of his statement which related to the existence of a sword in the hand of Irphan Khan in both the courts was specifically placed before him and to that he said that his statement before the Sessions Court was perfectly correct, and the statement made in the Magistrate's Court was due to some confusion. About other questions, which were put to the accused under Section 342, Cr. P. C. relating to the statements in the two courts, the learned Counsel for the State was not able to point out as to what were the portions which could be said to be clearly contradictory. Only he could point out from the statement of the accused in the Sessions Court on 6-9-1949, that in one place the accused had said that he had told Bherunlal that Irphan Khan was the murderer without seeing the dead bodies of the two women whereas in another place he had said that he had told him so after seeing the dead bodlfes. We may take up this last point first. Quite a large slice from the statement of 6-9-1949 was placed before the accused, and he was not told that he was being charged with two contradictory statements, one about his Informing Bherunlal that Irphan was the murderer without seeing the dead bodies and the other about his passing on that information after seeing the dead bodies. The accused could not, therefore, know that he was required to reconcile the two contradictory statements. He was asked with reference to the whole portion of the statement of which the portion about the passing on of the information to Bharunlal was only a small part, and he naturally said that his statement was correct. It will certainly cause great prejudice to the accused, if he were convicted of perjury for failing to reconcile the two alleged contradictory statements without giving him an opportunity to reconcile them. I do not think that the magistrate was justified, under the circumstances of the case, in convicting the accused. I have already said that the only thing which, appears to be contradictory in the statement before the Committing Magistrate and before the Sessions Court was about a sword in the hand of Irphan Khan. No other contradiction between the various statements has been pointed out to me. As regards the question of sword, the accused stated before the Committing Magistrate that his statement before the Committing Magistrate was certainly not precise, and it was due to some confusion of thought. It has not been argued on behalf of the prosecution that the existence of a sword in the hand of Irphan Khan at the time of his coming out of Kanji's house had any material bearing on the murder case. In that case the murder was alleged to have been committed by means of a 'moosal' and not by means of a sword. There was, therefore, no purpose in making a false statement about the existence of the sword in the hand of Irphan Khan when he emerged from the house of Kanji on the night of murder. Even in the statement before the Committing Magistrate the accused did not say that he did not see a sword in the hand of Irphan Khan altogether on the night of murder. He saw that just at the time when Irphan Khan was coming out of his (Kanji's) house, he could not notice the sword on account of darkness. Immediately after, he saw it in Irphan Khan's hand at the house of Bherunlal. I am not satisfied that the two seeming contradictions between the statements in the Committing Magistrate's Court and in the Sessions Court were due to an intention to commit deliberate perjury by the accused. There is reasonable ground for believing that the statement in the Committing Magistrate's Court might have been due to some confusion of thought, as stated by the applicant. As regards the question whether the whole of the statement made by the accused in the Sessions Court on 6-9-1949, should be considered to be false or not, there is only the oral evidence of Sahabzada Mahmood Ali Khan, and Asaram which goes to show that the statement was not true. Irphan Khan is no doubt an interested witness, because he was implicated by the accused in the murder case, and it is natural that ha should see his revenge from the accused. Sahata Zada Mahmood Ali Khan is admittedly a relation of Irphan Khan, and on a previous occasion when the latter was convicted of shooting a bull, the skin of the bull with the knife and gua with which the offence was said to have been committed were recovered from his house. His statement was read out to roe, and in more than one place, he stated that he was anxious that Irphan Khan should not escape. Considering his relation with Irphan Khan, it is altogether incredible that he should be so much inclined to have Irphan Khan implicated. These statements were simply made to show to the Court that he was not at all partial to Irphan Khan, but the veil is rather too thin to conceal the real fact that he was interested in saving Irphan Khan, and in not implicating film in any criminal case. As regards Asaram, he too is not altogether an impartial witness. He was the sole Patel of village Karodia some time back and at present he finds that Kanji accused and his nephew Onkarlal are also sharing that prestige. He says that he came to know on the night of the murder that Bherun-lal was the murderer, but being a Patel he made no attempt to place the true information before the Police or any other authority at the earliest possible moment. According to the statement of the Sub-Inspector, he disclosed to the police that Bherunlal was the murderer when he was examined on 26-3-1949. I do not think that the oral evidence of these three witnesses was so strong as to leave no room for reasonable doubt in the minds of the lower courts that the statement on the basis of which the accused was charged was nothing but perjured one. . It is very unsafe to convict an accused of per-jury simply because there is some oral evidence to show that the statement was false. If this principle is acted upon, no witness appearing in a court of law will be safe, and it would sometimes be very difficult, if not impossible, to find any evidence in a judicial case because the witnesses would be afraid that if one or two witnesses come to court to depose against them they might be hauled up for perjury. The evidence to prove perjury should be as strong, if not stronger, as in any other criminal case. The court should have no reasonable doubt about the statement being perjured before it can convict an accused of perjury. Even if there are two contradictory statements, the accused should be convicted of perjury only when they are found to be altogether irreconcilable. In the present case, the evidence which has been produced falls far too short of proving without reasonable doubt that the statements complained of were perjured ones. There seems to be some little contradiction between the two parts of the statement of 6-9-1949, about the seeing of the dead bodies by the accused before passing on the information that Irphan Khan was the murderer to Bherunlal. These statements find place in the same statement of the accused before the Sessions Court which commenced on 6-9-1949. A witness has a right to correct himself, and if he had stated something in a statement and further on he thinks that the statement was not correct, he is entitled to make the necessary correction. It is with this view that the evidence of a witness is required to be read over to him so that after hearing the statement he might have an opportunity to correct, if something is not in accordance with the facts. Therefore, I do not think that the accused could be convicted of perjury on the ground of these two seeming contradictions in the same statement. As has been said above, these two portions were not put clearly before the accused in his examination under Section 342, Cr. P. C. so that he might be able to reconcile them. It was argued that if the Court thinks that these portions ought to have been clearly placed before the accused, the case might be remanded for retrial, I, however, do not think that, under the, circumstances of the case, there is any necessity for re-trial. The accused had 'locus penetentiae', and as has been said above, he had perfect right to correct any statement that he had made in the previous part of the same statement. I do not find that under the circumstances of the case, the conviction and sentence of the accused can be upheld. The application for revision is allowed, the conviction and sentence are set aside, and Kanji accused is acquitted. He is on ball, and need not surrender to it. The fine, if paid, shall be refunded to him. . ;