John Beaumont, Kt., C.J.
1. This is a reference made by the District Magistrate of Broach and Panch-Mahals inviting us to enhance the sentence. It appears that the present accused made a statement under Section 164 of the Criminal Procedure Code, and at the trial his evidence contradicted that statement. He was, therefore, charged under Section 193 of the Indian Penal Code with committing perjury. I must confess that I should have myself grave doubt whether a statement made under Section 164 could possibly be regarded as part of the same transaction as a statement made at the trial so as to justify an alternative charge under Section 236 of the Criminal Procedure Code. But a full bench of this Court in Emperor v. Purshottam Ishwar 1920 I.L.R. 45 Bom. 834: s.c. 23,Bom. L.R. 1, F.B decided that question against the accused, and I think on this application we must follow that decision. But the conviction being in the alternative, we do not know whether the statement made under Section 164 was false, or whether the statement made at the trial was false. It seems to me that, in considering sentence, it makes a great deal of difference which of those two statements was false, and if the prosecution ask for a heavy sentence, they must prove which statement was false. If the statement made under Section 164 was false, no doubt such a false statement ought not to have been made, but one knows that in the initial stage of proceedings it is possible that influence may be brought to bear on a witness, and if a witness does make a false statement under Section 164, it is surely very much to his credit that he retracts that false statement at the trial, and does not by giving false evidence at the trial secure a wrong conviction. If in a case of that sort we are going to impose a heavy penalty for making a false statement under Section 164, we are strongly discouraging witnesses from resiling from a false position, and I am certainly not prepared to do that. If it had been proved that it was the statement in the Sessions Court which was false, that would have been a much more serious matter.
2. In my opinion, therefore, there is no case for enhancing the sentence.
3. I agree.