(1) The Petitioner is the sole accused in C. C. No. 282 of 1964 on the file of the Additional District Munsif Magistrate, Nellore. He has filed this petition under Ss. 435, 439 and 561-A of the Code of Criminal Procedure Praying for quashing the proceedings in C. C. No. 282 of 1964.
(2) The relevant facts are as follows : In Sessions Case No. 27 of 1964, on the file of the learned Sessions Judge, Nellore, one Kadiveti Venkataramareddi alias Ramireddi stood charged of an offence under S. 302 I. P. C. for having committed the murder of his wife Kameswaramma. In that case, the present accused was examined as P. W. 1. Soon after the occurrence he had prepared a statement signed by himself relating to the occurrence and presented it to the Sub Inspector of Police, Allur. That statement was not marked in evidence in the Sessions Court as it was found by the learned Sessions Judge to come under Section 162, Cr. P. C., because even before Joseph Tangraj gave that statement to the police, the latter had received intimation from the Medical Officer and registered it as F. I. R. and commenced investigation. It appears that in that statement , he had mentioned that he had seen the accused coming out of the rooms in which the deceased was lying with injuries.
When Tangraj was examined as P. W. 1. in the Sessions Court, he denied this particular fact though he admitted the truth of his earlier statement on all the other facts which were innocuous so far as the accused in the Sessions case was concerned. Accordingly on the basis of the earlier statement which he had presented to the police as well as similar statement which had been recorded from him by the sub-Inspector as well as the Circle Inspector, Tangraj was treated as a hostile witness and cross-examined by the prosecution. Ultimately, the prosecution in that case filed to make out a case against the accused Venkatramareddi and also to prove the particular fact that the accused was found coming out of the room where the deceased was lying injured. The result was that the learned Sessions Judge pronounced judgment on 22-8-1964 acquitting Venkataramareddi. In that judgment he observed as follows :
'In his cross-examination P. W. 1 admitted having stated in that report to the police that on 5-4-64 at about 1-00 P. M. he was sleeping in room No. 3 while B. Jayaram Reddi P. W. 3) P. Sesha Reddi and K. Ramanaiah, the students, were there and at that time S. Prabhavati (P. W. 2) came to the window and cried out 'Sir Sir' and he suddenly woke up and himself and the three students who were there came out of the room and then he saw the accused going away from room No. 2 taking his two children to the downstairs. But he explained it by saying that it did not happen like that and he gave that statement falsely like that on account of the pressure of the police. He also admitted having stated in that report that he thought that the accused must have accused those injuries to the deceased, as none else was present in the room at tat time. On the other hand, he has stated in his evidence given in this Court that at about 1-00 P.m. on that day in his sleep he heard some commotion in the verandah of the upstairs and on hearing that he woke up and found none in his room when he came out of his room he found two or three persons there who were strangers to him and he found the door No. 2 open and when he looked into that room, he found the deceased lying there with some bleeding injuries and he did not see the accused there at all P. W. 1 is not an illiterate. he has been working as a teacher in a Higher Secondary School in Allur. It is not possible to readily accept his explanation that he made false allegations in his report on account of the pressure of the police.
Having regard to the circumstances of this case, I am of opinion, that P. W. 1 has intentionally given false evidence in this court. This kind of perjuring in Courts must be strongly deprecated. I think, to discourage evils of perjury and in the interests of Justice, it is expedient that P. W. 1 should be prosecuted for having given false evidence intentionally in this Court. Accordingly I order notice to P. W. 1. for hearing him in the matter'.
(3) Tangaraj filed a statement that he had made the earlier statement before the police due to pressure by the police. The learned Sessions Judge ultimately filed a complaint under section 479A, Cr. P. C. for an offence under section 193 I. P. C. . The complaint is substantially to the same effect as what I have extracted above from the judgment but giving the extract above from the judgment but giving the extract of the report which Tangraj had given to the police signed by him.
(4) The question is whether the proceedings should be quashed.
(5) The substance of the offence against Tangaraj is that by giving his deposition in the Sessions Court, he gave false evidence . Reference by me hereafter in this judgment regarding truth or falsehood of Tangaraj's statement is only as regards the particular fact which I have referred to already i.e. Whether P. W. 1 saw Venkatarami Reddi coming out of the room as mentioned in the statement to police. Section 193 I. P. C. runs as follows:
:whoever intentionally gives false evidence in any stage of a judicial proceeding shall be punished with imprisonment Section 191 I. P. C runs as follows :
'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, does not believe to be true is said to give false evidence .
A statement is within the meaning of this section whether it is made verbally or otherwise.
(6) Beyond doubt the burden is on the prosecution to prove that the statement made by Tangraj in his deposition in the Sessions Court was false as defined in section 191 I. P. C. for discharging this burden of proof they have got the prior statement made by Tangaraj to the police in which he has made a statement to the contrary. The question is whether the fact that he made prior statements to the contrary shifts the burden of proof from the prosecution to the accused i. e., Tangaraj. Of course, if the Court were to assume that the statements made before the Police were true, or if there were some reliable basis on which the Court can positively conclude that the statements before the Police contained of the statement made by Tangaraj in the Sessions Court are not true on the crucial point concerned. But there is no such basis. Assumptions is not permissible under the law.
(7) In Queen Empress v. Sankaralingakone, ILR 23 Mad 544 a Division Bench of the Madras High Court held regarding S. 161 Cr. P. C. as follows : (at p. 546) :
'. . . . The Code of 1882 contained the word 'truly' after the word 'question' in sub-section (2) of section 161 This word has been omitted in the Code of 1898. Section 118 of the Code of 1872, which corresponds to Section 161 of the present Code, did not contain the word 'truly'. We are of opinion that under the law as it now stands, a person who is examined under section 161 of the Code of Criminal Procedure is not 'legally bound to state the truth'. The legal obligation to speak the truth when so examined no doubt existed under the Act of 1882 but the effect of the omission of the word 'truly' has been to do away with this legal obligation.
In the case of Empress v. Kassim Khan ILR 7 Cal 121 of Full Bench of the Calcutta High Court decided that the words 'shall be bound to answer all questions' in section 119 of the Code of 1872 did not constitute an 'express provision of the law to state the truth' within the meaning of section 191 of the Indian Penal Code. The reasoning upon which this decision is based is, in our judgment clearly applicable to the present case.'
By Act 26 of 1955, a new section 162 Cr. P. C. was substituted in place of the old Section. This new section contains proviso as follows :
'Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statements if duly provided, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (I of 1872), and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.'
The change in section 162 Cr. P. C. effected by the amending Act 26 of 1955 did not affect the position of law stated above by the Division Bench of the Madras High Court in ILR 23 Mad 544 to the effect that a person who is examined under section 161 Cr. P. C. is not legally bound to state the truth. It cannot be presumed that, in the statements made by P. W. 1 in the present case before the police. Tangaraj spoke the truth and it is not possible to hold on the basis of that assumption that, in the deposition of Tangaraj before the Sessions Court, Tangaraj gave false evidence and thereby committed offence under section 193 I. P. C.
(8) The mere fact that Tangaraj has made earlier statements, in the absence of anything to show that those earlier statements are true and must be true, will not in any way shift the burden of proof from the prosecution to the accused Tangaraj. The version of the accused in the Sessions Court was that those earlier statements made by him before the Police were false and that he had made such false statements on pressure by the Police. The earlier statements made before the police form the only basis relied on by the learned Sessions Judge in his complaint for proving that the deposition of the accused Tangaraj as witness in the Sessions case must be false, and that Tangaraj must have committed an offence under S. 193 I. P. C. In the judgment itself, the learned Sessions Judge has simply stated :
'It is not possible to readily accept his explanation that he made false allegations in his report on account of the pressure of the police.' Even if the explanation were not accepted, it would not necessarily follow that the statements, which he had made before the Police, were true or must be acted upon as true to the extent of holding that thereby the deposition in the Sessions case must be false. The statements made before the police may be true or may be false. If there is no basis to positively hold that they were false and if the possibility hold that they were false and if the possibility existed of their being either true or false, there can be no positive finding that the deposition in the Sessions Court is false and the accused would have to be given the benefit of doubt. Therefore, considering the basis on which the complaint is made, there is no possibility of proving the case beyond reasonable doubt.
(9) The learned Sessions Judge was right in his view that perjuring in Courts must be strongly deprecated. But it does not follow that complaint should be made on basis of material which, even if proved completely will not be sufficient for a conviction. On the facts of this case, as no offence could be made out against the accused, even if the full basis on which the learned Sessions Judge relies on were proved. I find that the proceedings cannot be allowed to stand.
(10) The revision petition is allowed and the proceedings are quashed.
(11) Petition allowed.