1. The conviction of the appellants rests upon the depositions made by them in an execution proceeding, in which they admitted their attestations of the deed of sale, which is proved by the evidence in the present case to be a forgery. In their examinations in the present case they deny their attestations; and if their depositions in the former case are excluded from consideration, there is nothing to show that they attested the deed of sale, The Sessions Judge, relying on the decision of the majority of the Judges who composed the Full Bench in the case of The Queen v. Gopal Doss (1), decided by the Madras High Court on the 4th February, 1881, has admitted the depositions. I concur, however, in the opinion of the two Judges (Kernan and Muttusami Ayyar, JJ.,) who dissented from that decision. I think that Section 132 of the Evidence Act, read with Section 14 of Act X of 1873, compels a witness to answer criminating questions, and that he is protected by the proviso to Section 132 from a criminal prosecution for any offence of which he criminales himself directly or indirectly by his answer, except a prosecution for giving false evidence by such answer. It is not only when a witness asks to be excused from answering a criminating question, and his request is refused, that he is, in my opinion, 'compelled to give' the answer, within the meaning of the proviso. The compulsion is operative whether he asks to be excused or gives the answer without so asking. I would, therefore, acquit the appellants. But as Mr. Justice Parsons does not concur in this opinion, the case must be laid before another Judge under Section 429 of the Code of Criminal Procedure (Act X of 1882).
2. I agree with the opinion expressed by the majority of the Judges in the case of The Queen v. Gopal Doss I.L.R. Mad., 271 and would admit the evidence. Reading Section 132 of the Evidence Act as a whole I can come to no other conclusion than that the Legislature, has by it made a clear distinction between those cases in which a witness voluntarily answers a question and those in which he, is compelled to answer, and has given him a protection in the latter of those cases only. If protection was to be allowed in every case in which a witness gives an answer, the words 'be compelled to' in the proviso are quite superfluous. The insertion of those words clearly shows, to my mind, that protection is afforded only to answers which a witness has objected to give or which he has asked to be excused from giving, and which then he has been compelled by the Court to give: (see Field's Law of Evidence, p. 646, 4th ed.). In the present case both the accused were examined in the Court of the Subordinate Judge on behalf of Sarasvati and Kesu, and they freely and voluntarily there gave evidence to the effect that they had attested the deed on which Sarasvati and Kesu relied. This deed was held to be a forgery. Sarasvati and Kesu were prosecuted and convicted of the forgery; and the accused were tried along with them and convicted on a charge of abetment of that forgery, and their answers in the Court of the Subordinate Judge were admitted in evidence against them. I am of opinion that these answers being purely voluntary answers, and not answers which they were in any way compelled to give, can be proved against them in the present trial. And as they are proved, I would dismiss these appeals.
3. The case was accordingly referred to the Acting Chief Justice Mr. Bayley, who gave the following judgment:
For the reasons given by Sir Charles Turner, C.J., in the case of The Queen v. Gopal Doss I.L.R., Mad., 271. I think that the evidence is admissible, and I concur with Mr. Justice Parsons in dismissing the appeals.