1. These are two appeals against two complaints under Section 193 of the Indian Penal Code filed against the appellants by the Additional Sessions Judge at Belgaum under Section 476 of the Criminal Procedure Code for giving false evidence either in his Court in Sessions Case No. 70 of 1945 or in. the Court of the Committing Magistrate. Both the appellants were examined as eye-witnesses for the prosecution in Sessions Case No. 70 of 1945 in which Fakirappa Yellappa Gaifiad and two others were tried for the murder of one Venkappa. Chanba-sayya, the appellant in criminal appeal No. 98 of 1946, stated in the Court of the Committing Magistrate as follows:
I had been bathing my bullocks and I heard some row. I turned back and saw accused No. 3 and Venkappa grappling together. Then accused Nos. 1 and 2 beat him. Accused Nos. I and 3 had sticks in their hands. Accused No. 2 had nothing, but pelted stones at Venkappa. Then Venkangouda came and fell down in the river.
At the trial in the Sessions Court lie went back upon that statement and stated as follows:
I heard a row. Many persons ran towards the place of incident. I also ran towards. that place.
I saw the deceased Venkangouda fallen in the river. I did not notice his assailants.
In his cross-examination he stated that he was threatened by the Police to depose before the Committing Magistrate and that he had really not seen the assailants of Venkangouda.
In the same way Mugappa, the appellant in criminal appeal No. 99 of 1946, . stated in the Court of the Committing Magistrate as follows:
I had gone to the river for bath, I was soaping my dhoti. There was at once a row. I was on the other side of the river. I saw and found that accused No. 3 was beating Venkappa. Both of them began to grapple with each other. Accused No. 1 came running with a stick, while accused No. 2 came with stones. They also began to beat him. Venkappa freed himself and ran up the bank. Accused No. 3 pursued him and beat him on the head. Then Venkappa ran towards the river.
Before the Sessions Court he stated:
I was taking my with on the other side of the river at that time. The deceased Venkappa also had come for a bath at that time. In the first instant I saw a scuffle between the deceased and accused No. 3. I did not notice accused Nos. 1 and 2 taking part, in the incident. Through fear I ran away.
2. It is obvious that both the appellants deliberately turned round, in the Sessions Court and they went back upon the statements which they had made in the Court of the Committing Magistrate. They were examined as eye-witnesses and both of them had deposed to having seen the accused committing assault upon the deceased Venkappa. But in the Sessions Court they wanted to save the accused and stated that they had not seen Venkappa being assaulted by any of the accused. There is no doubt that this change was made by them deliberately in order to help the accused. At the instance of the Assistant Public Prosecutor the learned Additional Sessions Judge issued notices to both the appellants to show cause why they should not be prosecuted under Section 193 of the Indian Penal Code. Chanbasayya, the appellant in criminal appeal No. 98 of 1946, stated in his written statement that he had stated the truth in the Sessions Court, but in the Court of the Committing Magistrate he had been asked to incriminate the accused and he made that statement as stated by the police through fear. He does not say that the police had given him any threat or that he was forced to make such a statement. Admittedly he made a deliberately false statement in order that the accused might be incriminated. Mugappa, the appellant in criminal appeal No. 99 of 1946, stated in his written statement that the contradictions in his two statements were due to loss of memory and not to any intention on his part to tell a lie or give false evidence. He says:
The alleged incident had happened early in 1943 and I was examined first in May 1945, and later in October. Due to lapse of time and the extreme confused state of my mind due to fright, I stated what I remembered. I have not given any false evidence intentionally.
3. It is difficult to explain this) defence. It is not clear whether he had lost his memory when he made his first statement, or the second. His second statement clearly shows that he deliberately turned round in order to save the accused. The change cannot be attributed to lapse of time or loss of memory. It is thus clear that both the appellants intentionally made false statements either before the Committing Magistrate or in the Sessions Court, and according to ill, (&) to Section 236 of the Criminal Procedure Code, 1898, they can be charged alternatively and convicted of having made a false statement on oath either in the Sessions Court or in the Court of the Committing Magistrate.
4. Mr. Kalagate on behalf of the appellants, however, has drawn our attention to the decision in Emperor v. Ningapa Ramappa : (1941)43BOMLR864 . The language of the head-note of that ease is rather too wide and does not correctly express what was intended to be decided by that case. In that case the first statement had been made by the witness in the course of the Police investigation under Section 164 of the Criminal Procedure Code, and when the case went to the Committing Magistrate the witness resiled from, that statement. It appears that the learned Additional Sessions Judge who ultimately tried the case was disposed to think that the statement made under Section 164 of the Criminal Procedure Code was false and that the subsequent statement at the trial was true. In those circumstances, it was rightly held that it would not be expedient in the interests of justice to compel a witness to stick to a false statement which had been made by him in the course of the investigation. The ruling does not lay down that in a proper case a charge in the alternative as contemplated by ill. (&)_ to Section 236 of the Criminal Procedure Code cannot be framed or prosecution for such a charge should not be sanctioned. The learned Chief Justice expressly said (p. 868):
I am prepared to assume that;u alternative charge of perjury lies, and that it was a charge -of that nature which the learned Additional Sessions Judge contemplated. The question then is whether it is expedient in the interests of justice that such a charge should be made.
And in the circumstances of that particular case, since the Additional Sessions Judge who ordered the prosecution had himself thought that the statement under Section 164 of the Criminal Procedure Code was false, it was held that it would not be expedient in the interest of justice to order the prosecution of the witness. Thus the question in such a case is not merely whether the two statements on which an alternative charge is to be made, are irreconcilably contradictory, but whether, under the circumstances of the case, it is expedient in the interests of justice that prosecution should be ordered. If it is, then the deponent should be prosecuted, although it may not be possible to prove which of the two contradictory statements is false.
5. Similarly, in the other case referred to by Mr. Kalagate, Keramat Ali v. Emperor I.L.R.(1928) Cal. 1312 it was thought not expedient in the interests of justice that prosecution should be ordered under Section 476 of the Criminal Procedure Code, In that case when ordering the. prosecution the learned Sessions Judge had not recorded any finding to the effect that it was expedient in the interests of justice that an enquiry should be made into the offence. In the present case both the appellants first made statements incriminating the accused and had the accused committed to the sessions, 'When the case went to the Sessions Court they turned round, deliberately went back upon those statements and said that they had not seen the accused assaulting the deceased. Such false statements made on purpose in either of the Courts ought not to go unpunished, and we think that it is expedient in the interests of justice that the appellants should be prosecuted for perjury.
6. Both the appeals are, therefore, dismissed.