1. This is a case submitted under the provisions of the final clause of Section 339 of the Code of Criminal Procedure, which came before me in single Bench. Being of opinion that sanction to prosecute for the offence of giving false evidence should not be granted unless there be good prima facie ground for considering that a conviction will follow, and that, in this case, unless the charge be drawn in the alternative form provided as No. XXVIII (4) in Schedule V, Act X of 1882, such result is improbable, I had to consider the law regarding an alternative charge of offences made punishable by Section 193 of the Indian Penal Code, as laid down for these Provinces in Empress v. Niaz Ali I.L.R. 5 All. 17 at p. 22. The passage to which I refer is the following: 'It is not of itself sufficient to warrant a conviction either for giving false evidence or making a false oath, that an accused person has made one statement on oath at one time, and a directly contradictory one at another. The charge must not only allege which of such statements is false, but the prosecutor must be prepared with confirmatory evidence, independent of the other contradictory statement, to establish the falsity of that which is impeached as untrue. The remarks of Holroyd, J., in R. v. Jackson 1 Lewin C.C. 270 are valuable upon this point: 'Although you may believe that on one or the other occasion the prisoner swore what was not true, it is not a necessary consequence that he committed perjury, for there are cases in which a person might very honestly and conscientiously believe and swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time be convinced that he was wrong, and swear to the reverse without meaning to swear falsely either time. Again, if a person swears one thing at one time and another at another you cannot convict where it is not possible to tell which is the true and which is the false.' Gurney, B., also took a similar view in the case of B. v. Wheatland 8 C and P. 238 upon which and a decision of the Court of King's Bench in R. v. Harris 5 Barn. and Ald. 926 Mr. Greaves in Bussell on Crimes (Vol. Ill, pp. 82 and 23, notes) records some valuable comments. Section 455 of the Criminal Procedure Code is no authority for the form of charge prepared by the Magistrate in the present case, and the word 'alternative' as used in the section means that where the facts which can be proved make it doubtful what particular description of offence an accused person has committed, the charges may be so varied or alternated as will guard against his escaping conviction through technical difficulties.'
2. Being myself of opinion that, under the law of British India, it is not necessary that the charge should allege which of two contradictory statements upon oath is false, but it is sufficient (unless, indeed, some satisfactory explanation of the contradiction should be established) to warrant a conviction of the offence of giving false evidence to show that an accused person has made one statement upon oath at one time, and a directly contradictory statement at another, I directed the case to be laid before a Division Bench.
3. This has been done, and I have now to set out the grounds of my opinion as stated above. For reasons which shall be detailed hereafter, I think that English cases are irrelevant to the matter under discussion; but as they have been cited, and are relied on by my learned colleague, I will briefly consider them.
4. The question immediately before us appears to have been first raised about a century after perjury in a witness became an offence punishable by the common law. The point is thus stated by Chambre, J. I quote from the foot-note in R. v. Harris at p. 938 of 5 Barn. and Ald. : 'It has been doubted whether, if the same person swears contrary ways at different times, he can legally be convicted of perjury without some further proof to falsify that testimony on which the indictment assigns the perjury. For it is said that on whichsoever of his contradictory oaths the perjury be assigned, that oath must be taken to be true unless disproved by two other witnesses. On the other hand, some have thought that if the indictment states the two contradictory oaths, and than concludes, that 'so the defendant committed wilful and corrupt perjury,' without any averment to falsify the facts sworn on either of the oaths, it is sufficient to warrant a conviction. Perhaps an indictment in that form might be sufficient; but even upon the common indictment assigning the perjury upon one of the oaths only, and averring the falsity of the facts there sworn (in the usual form), it seems that the defendant may justly be convicted without any other proof of the perjury than producing and proving the other deposition which the defendant had made in contradiction to that on which the perjury is assigned ; for its being the defendant's own deposition, he cannot be admitted to say that deposition was false, for nemo allegans turpitudinem suam est audiendus, and, if that be true, the other on which the perjury is assigned must of course be false. The reason why, in other cases, the perjury must be proved by witnesses that outweigh the testimony of the defendant is because, where there is only oath against oath, it stands in suspense on which side the truth lies. But when the same person has, by opposite oaths, asserted and denied the same fact, the one seems sufficient to disprove the other, and, with respect to the defendant (who cannot contradict what he himself has sworn), is a clear and decisive proof, and will warrant the jury in convicting him on either, for whichsoever of them is given in evidence to disprove the other, it can hardly lie in the defendant's mouth to deny the truth of that evidence, as it came from himself. Upon this principle, Yates, J., convicted a man, at Lancaster Summer Assizes, 1764. He had first made his information on oath before a justice of the peace, that three women were concerned at a riot at his mill (which was dismantled by a mob, on account of the price of corn), and afterwards at the Sessions, when the rioters indicted, he was examined concerning those women, and (having been tampered with in their favour) he then swore that they were not in the riot. There was no evidence on the trial of the defendant for this perjury to prove that the women were in the riot (which was the perjury assigned); but the defendant's own original information on oath being produced and read, whereby he had sworn they were in the riot, the Judge thought it sufficient to convict him. He was accordingly found guilty, and transported. And afterwards Lord Mansfield, C.J., and Wilmot and Aston, JJ., to whom Yates, J., stated the reasons of his judgment, concurred in his opinion.'
5. So the law stood till the Westminster sittings after Michaelmas term 1821, when two precisely similar cases, growing out of the same transaction, and in which the indictments were drawn in the same form--R. v. Knill 5 Barn and Aid. 929 and R. v. Harris 5 Barn and Ald. 926 --were tried on the same day. In B. v. Knill 5 Barn and Ald. 929 no evidence was given, except simply the proof of the contradictory oaths of the defendant on the two occasions, and the jury convicted the defendant on those counts of the information which charged the perjury specifically to have been on one of the two occasions. A rule to show cause why there should not be anew trial was asked upon the ground, among others, that mere proof of a contradictory statement by the defendant on another occasion was not sufficient without other circumstances showing a corrupt motive, and negativing the probability of any mistake. But the Court held that the evidence was sufficient, the contradiction being by the party himself, and that the jury might infer the motive from the circumstances; and they refused a rule nisi for a new trial. In R. v. Harris 5 Barn and Ald. 926 the jury acquitted the defendant upon the counts of the information which charged the perjury as specifically committed on one of the two occasions, but convicted him on those counts which we should call alternative charges; and the Court granted a rule nisi for arresting the judgment, on the ground that those counts were insufficient. The judgment of the Court of King's Bench was delivered by Abbott, C.J., who, after stating that the procedure by alternative charges was new, which the foot-note to the case shows that it was not, went on to say: 'The next and most material objection is the injury to which a defendant may be exposed. For we think it impossible to say, consistently with any known rule of law, that a person, acquitted or convicted on an indictment in this form, could plead such acquittal or conviction as a bar to an indictment charging perjury in the usual way on either of the depositions. The answer to such a plea would be: 'You have never been tried on the charge now preferred against you,' and such an answer would undoubtedly be true in fact, and we think good in law, So that a defendant might be twice put in peril of the punishment of perjury, and perhaps twice convicted and punished on the same subject-matter, if an indictment like the present could be sustained. It is not necessary to say whether an indictment charging contradictory depositions, together with other charges and averments not found in the present information, would be good as an indictment for a misdemeanor. The difficulty of showing on which of two occasions a party swore falsely, may perhaps enable a person to escape punishment, whose conduct, like that of the present defendant, may plainly appear to be in the highest degree reprehensible. But we think it better that such a person should escape than that an indictment should be held good, which is liable to the material objection of putting a person twice in peril of the pains of perjury on the same subject-matter, and we know of no election to adopt this or that mode that can be binding on the Crown, as was suggested in the argument at the bar in support of this information.'
6. As R. v. Harris 5 Barn and Ald. 926 is still the leading English case on the subject, I may be allowed to remark regarding it, that its ratio decidendi is inapplicable in this country, for--
(1) The procedure by alternative charges is, as I shall show in detail hereafter, not new in India, and is expressly sanctioned by the law.
(2) With reference to the terms of Section 403 of the Code of Criminal Procedure, and to the form of alternative charge prescribed by the Code, 'the alternative conviction becomes,' to use the words of the learned Judges in Palany Chetty's case, & Mad. H.C. Rep. 51, 'a legal bar to any other criminal proceeding against the same person on either of the charges to which the conviction relates.'
(3) The distinction between felonies and misdemeanors does not exist in India.
7. R. v. Harris 5 Barn and Ald. 926 has been followed in Mary Jackson's case 1 Lewin C.C. 270 in R. v. Wheatland 8 C. and P. 238 in R. v. Hook D and R. 606 and in other cases. As regards all these oases, I would remark generally that the law of England as to the necessity of calling at least two witnesses to support an assignment of perjury, and of showing that the oath taken was material to the question depending, is not law in India. As regards the remark of Holroyd, J., in Mary Jackson's case 1 Lewin C.C. 270, as to the possibility of conflicting statements being made without criminal intention, I would say that it is beside the point now at issue; for unless the two contradictory statements are so absolutely opposed as to exclude the possibility of any hypothesis than that of the prisoner's guilt, there can be no conviction upon an alternative charge I.L.R. 10 Cal. 405. And as regards R. v. Hook D. and R. 606 I would note that although B. v. Harris 4 Mad. H.C. Rep. 51 and R. v. Wheatland 8 C. and P. 238 were followed in it, yet R. v. Knill 5 Barn and Ald. 929 was referred to with modified approval by two of the five Judges (Pollock, C.B., and Byles, J.); and Pollock, C.B. remarked that though R. v. Knill 5 Barn and Ald. 929 is 'not now quite safe to be acted on,' yet it is supported by the judgment of the Court' of Queen's Bench in Lord Tenterden'S time and in that of Lord Mansfield.'
8. But we have, as it seems to me, nothing to do with English cases in the matter before us. Their Lordships of the Privy Council have in Trimble v. Hill L.R. 5 Ap. Cas. 342 and in Kathama Natchiar v. Dorasinga Tever L.R. 2 Ind. Ap. 160 laid down the principle that where a Colonial Legislature has passed an Act in the same terms as an Imperial Statute, and the latter has been authoritatively construed by a Court of Appeal in England, such construction should be adopted by the Courts of the Colony. But when the Indian Legislature has deliberately rejected, or intentionally declined to follow, the law of England upon a particular point, the case is altogether different. And as regards the offence of 'giving false evidence,' the framers of the Indian Penal Code, for reasons stated in Note G. to their Report dated the 14th October 1837 (Pari. Papers, 3rd August 1838, Indian Penal Law Commission, 673), thought proper to discard the English law of 'perjury,' and to draft the provisions of the Indian Penal Code in this respect upon the lines of the French Code Penal regarding 'faux temoignage.' The Indian Law Commissioners were afterwards pressed to at least allow the words 'perjury' to be retained in their Code, as being one familiar to the people of India and long in use; but they refused to give way (para, 130 of their Report, dated the 24th June 1847, Pari. Papers, 16th May 1848, Indian Law Commission, 330) on the ground that ' the authors of the Code thought inexpedient to use the technical terms of the English law where they did not adopt its definitions, and so materially departed from it in substance.'
9. Before the enactment of the Indian Penal Code, the penal law of Bengal and Madras was the Muhammadan law, unless varied by Regulations. In the Bombay Presidency, the penal law was entirely contained in the Regulations. I have been unable to find anything in the Bombay Regulations bearing upon the point at issue. In the Madras Presidency a Regulation (III of 1826) was passed on the 17th October 1826 (probably upon the doctrine of B. v. Harris 5 Barn and Ald. 926 becoming generally known), Clause (i), Section 1 of which provided as follows: 'If a party or witness shall wilfully and deliberately give two contradictory depositions on oath, or under a solemn declaration taken instead of an oath, on a matter or matters of fact material to the issue of a judicial proceeding, such party or witness shall be liable to be committed for trial before the Court of Circuit for wilful and corrupt perjury; provided that the contradiction between the two depositions be direct and positive, and that, upon the whole circumstances of the case, there be strong grounds to presume the corrupt intention of the party or witness.'
10. In Bengal and the N.W.P., the law was not finally settled till 1831, when the Kazi-ul-Kazaat and the Muftis of the Calcutta Sudder Court were called upon (Constructions 8. D.A. and N.A. ed. 1839, vol. ii, p. 19) to state the Muhammadan law as to the proof required on charges of perjury. On the 2nd September 1831, these gentlemen delivered an elaborate opinion, the material portion of which, so far as our present purpose is concerned, ran thus: 'Where there exists a contradiction in the evidence of a witness before one or more Courts, and the difference be such that the two statements can in no way be reconciled with each other; for instance, if a witness depose that he saw A kill B, mentioning the time and place in which the murder was committed, and afterwards, in the same Court or some other, shall state that he did not witness the transaction, this is a direct retraction of his former evidence, and he cannot make the plea of forgetfulness: on the contrary, he must acknowledge what he first stated to have been erroneous, and if this retraction be made under a proper sense of repentance and contrition, he is not liable to tazeer; but if with contempt and boldness he is liable to tazeer; and the Hakim is left to decide upon his own discretion what were the man's motives.'
11. This settled the law upon the point in these Provinces for the next thirty years, and in 1847 (Carrun's Circular Orders of the Court of Nizamat Adawlut, ed. 1855, p. 422 a form 'to be used in cases of statements directly at variance with each other' was promulgated in the following terms: 'Perjury, in having, on the 1st January 1847, intentionally and deliberately deposed, under a solemn declaration, taken instead of an oath, before the of, that (here enter the first statement), and in having on the 13th February 1847, again intentionally and deliberately deposed, under a solemn declaration, taken instead of an oath, before the said (or any other Court), that (here enter the second statement), such statements being contradictory of each other, on a point material to the issue of the case.'
12. The question of proof of the offence of giving false evidence by contradictory statements was considered by the Indian Law Commissioners in 1847, and was noticed by them in para. 154 of their second and concluding Report on the Indian Penal Code (Pari. Papers, 16th May 1848, Indian Law Commission, 330) in these terms: 'By Regulation III of 1826 of the Madras Code, a person wilfully and deliberately giving two contradictory depositions on oath is liable to be convicted of perjury, and to suffer the punishment prescribed for that offence. It has been decided (Russell, vol. ii., p. 542) that, under the law of England, perjury cannot be legally charged and assigned by showing that the defendant did on two different occasions make certain depositions contradictory to each other, with an averment that each of them was made knowingly and deliberately, but without averring or showing in which of the two depositions the falsehood consisted; and we apprehend that under similar circumstances the offence of giving false evidence could not be so charged under Clause 188. We are strongly of opinion that 'whoever in any stage of a judicial proceeding, being bound by an oath, or by a sanction tantamount to an oath, to state the truth, gives a statement touching any point material to the result of such proceeding which directly and positively contradicts a statement touching the same point, given by him on oath, or under a sanction tantamount to an oath, in any stage of a judicial proceeding, at another time,' should (failing any satisfactory explanation of the contradiction to negative the inference of a corrupt intention) be liable to punishment. Under such circumstances, it is morally certain that the party has given a false statement on one or other of the two occasions, though it may be impossible to show positively which of the contradictory statements is false. Both statements may perhaps be false, but one only can be true. It is possible, indeed, that the first statement may have been false through an error or mistake, which has been corrected by subsequent information, and that the second contradicts the first because it contains the truth which had come to the knowledge of the party in the meantime. But when there is no such allegation, nor any explanation of the contradiction to negative the inference that the party at one time or the other has been guilty of stating on oath (or as it may be) as true what he knew to be false in order to deceive a Court of Justice, on a point material to the question to be decided by the Court, we think the law should be so framed that he should not be able to escape from the punishment he would well deserve. In the case in question we do not see why the party who has given contradictory statements might not be charged with the offence of false evidence upon each of them successively--first, upon that which from the circumstances there is reason to think is most probably the false one, giving the other in evidence against him, which would throw upon him the onus of proving it to be false, and if he succeeded in defending himself against that charge by means of such proof, then upon that other statement as proved to be false by the evidence he had himself adduced. By this mode of proceeding a really guilty person could hardly escape. And a person who had such a defence as before supposed, being able to show, for instance, that his second statement differed from the first because he had ascertained in the meantime that the first statement was incorrect, would have an opportunity of clearing himself by given proof to that effect. If necessary, a special rule might be enacted to sanction this mode of procedure.'
13. The preparation of the Code of Criminal Procedure went on (under the same hands) pari passu with that of the Penal Code, and although the former Code was not passed till nearly a year after the latter, the two Codes came into force on the same day, the 1st January 1862. The Code of Criminal Procedure contained in its 242nd section a provision which satisfied the requirements of the Indian Law Commissioners as cited above. The provision was in these terms: 'When it appears to the Magistrate that the facts which can be established in evidence show the commission of one of two or more offences falling within the same section of the Indian Penal Code, but it is doubtful which of such offences will be proved, the charge shall contain two OK more heads charging respectively each of such offences accordingly.' And effect was further given to the terms of Section 242 by the terms of Sections 381 and 382 of the Code. What happened in Bombay in the matter now before us I have been unable to discover; but the Madras Court of Sudder Nizamat, in April 1862, (the Madras Regulation III of 1826 having been repealed as from the 1st January 1862, by Act XVII of 1862), the Calcutta Court in May 1862, and the Agra Court in June 1862, failing apparently to notice the effect of Sections 242, 381 and 382 of the Code of Criminal Procedure, issued Circular Orders, informing the Courts subordinate to them that the mere making of contradictory statements upon oath would not now constitute the offence of 'giving false evidence,' or, as the Calcutta Court still called it, 'perjury.' The Calcutta Sudder Court was merged in the High Court in 1862, and cases soon afterwards began to be decided contrary to the terms of the Circular Order of May 1862. At length, in 1866, a case in point R. v. Zumeerun 6 W.R. Cr. 65 came before a Bench of two Judges (Norman and Campbell, JJ.), which was inclined to support the view of the law taken in the Circular Order, and was by them referred to a Full Bench for an authoritative ruling; and the Full Bench (Noeman and Campbell, JJ., doubting) held that where a witness intentionally makes two contradictory statements upon oath, and it is doubtful which of the two statements is false, he may be convicted of the offence of giving false evidence upon an alternative finding. Peacock, C.J., remarked: 'I have no doubt that there may be an alternative finding as well in a case in which the evidence proves the commission of one of two offences falling within the same section of the Penal Code, and it is doubtful which of such offences has been proved, as in one in which the evidence proves the commission of an offence falling within one of two sections of the Penal Code, and it is doubtful which of such sections is applicable.
This appears to me to be quite clear when Section 381 of the Code of Criminal Procedure is read together with Section 242 and Clause (5), Section 382 of that Code.
A swears before a Magistrate that ho saw the prisoner kill B. The prisoner is committed to the Sessions for trial for murder. A on the trial swears that he did not see the prisoner kill B, and the prisoner is acquitted. A is, in consequence, committed for trial for giving false evidence, and two charges are framed against him under Section 242, Code of Criminal Procedure:
1st.--That he intentionally gave false evidence before the Magistrate by swearing that he saw the prisoner kill B.
2nd.--That he intentionally gave false evidence before the Sessions Judge by swearing that he did not see the prisoner kill B.
The Sessions Judge finds that the prisoner intentionally gave false evidence, but that it is doubtful whether the statement made before the Magistrate, or that made before the Sessions Judge, was the false one. If the prisoner was innocent, and the statement before the Magistrate was false, the prisoner has, in consequence, been improperly committed for trial on a charge of murder, and has suffered all the degradation, annoyance, and anxiety of being committed on a false charge. If the prisoner was guilty, and the witness, in consequence of bribery or other cause, has sworn falsely before the Sessions Judge, the administration of justice has been defeated, and a murderer has been acquitted. It is clear that, unless the law is very defective, or we are to trifle with the administration of justice, A ought to be punished. It appears to me that the law is not deficient, and that the case is provided for by the Code of Criminal Procedure, whether it be read according to the strict letter or according to its spirit.
In such a case it would seem clear that the Magistrate was right in framing a charge containing two heads, under Section 242.
The Sessions Judge would also be strictly within the letter as well as the spirit of Sections 381 and 382 (Clause 5) in finding that A is guilty of the offence of intentionally giving false evidence, and that he is guilty either of the offence specified in the first head or of the offence specified in the second head of the charge, and is convicted of an offence punishable under Section 193 of the Penal Code. The words in Clause (5), Section 382, which follow the word 'namely,' are clearly given only as an example, and it is clear that without an example of a case falling within the latter branch of Section 242, such a case falls within the strict letter of Clause (5), Section 382.
14. And Seton-Karr, J., said: 'I entirely concur with the learned Chief Justice. Indeed, I had always understood that our Court and the subordinate Courts acted on the principle laid down in the judgment with which I concur; and until this reference was made, I was not aware that there existed any very serious doubts on the point. Indeed, unless Courts did and could return an alternative finding in such cases of false evidence, the most disastrous consequences to the administration of justice would ensue. Violent crime and crime of all kinds would go unpunished, and the witnesses who had been bought off to deny their statements implicating the perpetrators of such violent or other crimes would go unpunished also. I can conceive nothing more detrimental to society.'
15. The same point was raised in the Madras High Court in May 1868; and that Court (Scotland, C.J., and Collett, J.) came to the same conclusion. The head-note of the case R. v. Palany Chetty 4 Mad. H.C. Rep. 51 runs thus: 'Proof of contradictory statements on oath, or solemn affirmation, without evidence as to which of them is false, is sufficient to justify a conviction, upon an alternative finding, of the offence of giving false evidence under Section 72 of the Indian Penal Code, and Sections 242, 381 and 382 of the Criminal Procedure Code.'
16. Proposals for the amendment of the Code of Criminal Procedure were shortly afterwards under discussion by the Legislature, and it is to be presumed that the circumstances which have been set out above were before the Council, and were considered by it. Act X of 1872 was passed hi April 1872. In that Act, the provisions of Section 242 and the alternative form of finding given in Section 382 of the old Code were not re-enacted; but in place of them was enacted a Section (455), which provided that--'If a single act, or a set of acts, is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused person may be charged with having committed any such offence, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed someone of the said offences,'--and a Section (442) which provided that the charge might be in the form given in the third schedule to the Act, or to the like effect. That schedule contained a form for alternative charges on Section 193, which runs thus: 'That you, on or about the day of, at, in the course of the inquiry into, before, stated in evidence, that and that you, on or about the day of, at, in the course of the trial of, before, stated in evidence that one of which statements you either knew or believed to be false, or did not believe to be true, and thereby committed an offence punishable under Section 193 of the Indian Penal Code, &c.;'
17. In his note to Section 461 of Act X of 1872, which took the place of Section 381 of Act XXV of 1861, Mr. Prinsep wrote (ed. 1873, p. 311) as follows: This section does not provide for an alternative finding in a case in which it is doubtful of which of two offences under the same part of the same section the accused person is guilty; for instance, a case in which a person is charged with having intentionally given false evidence in making one statement, and again with the same offence in making a diametrically opposite statement. It has been usual to enter each of these offences in a separate head of the charge, and for some attempt to be made by the prosecution to prove one or other of these offences, and for the Court of Session, if not satisfied with the evidence as to the truth or falseness of other statement, but still being satisfied from the contradiction that the accused is guilty of having intentionally given false evidence, to convict in the alternative form of finding. But though Section 461 does not expressly provide for this procedure, it will be seen from a reference to the last form of charge given in schedule iii, that it is contemplated that such charges should be made in one charge, and not in two separate heads as heretofore. Probably, therefore, if any evidence is offered, or is likely to be offered in proof of the falseness or truth of one of such contradictory statements, a separate head of the charge will be made so as to provide for such offence, and the alternative form of charge will also be given.'
18. The changes made by the new Code led to its being doubted in Bengal whether R. v. Zumeerun 6 W.R. Cr. 65 would stand, and the whole matter was therefore again fully considered by the Calcutta Court in April 1874. It was then held--R. v. Mahomed Hoomayoon Shaw 13 B.L.R. 324 by a majority of the Court (Couch, C.J., Kemp, Markby, Glover, Ainslie, Pontifex, Birch, and Morris, JJ.,)(Jackson and Phear, JJ., dissenting) that a conviction of giving false evidence upon an alternative charge is good, although it be not found which of the two statements charged is false; and Couch, C.J., remarked: 'It is material to notice that the charge does not allege that the statement made on the 23rd of January 1873, was known or believed to be false, or not believed to be true. Nor does it allege that the statement made on the 13th of February 1873, was known or believed to be false, or not believed to be true. It merely alleges that one of the two statements set out in it was known or believed to be false by the accused, or not believed by him to be true.'
19. Upon this charge he was tried, and in the summing up of the Judge, the jury were told, and very properly: 'Before you can find him guilty, you must be satisfied that he made one or other of the statements, contained in the charge, knowing that such statement was false, and deliberately intending to make a false statement.' The majority of the jury found that the accused was guilty of the offence specified in the first and second heads of the charge, the offence specified being an offence punishable under Section 193 of the Penal Code. After such a summing up, calling the attention of the jury so plainly to the necessity of their being satisfied that one or other of the statements was known to be false, and that the accused deliberately intended to make a false statement, I think there can be no doubt that the offence of giving false evidence within the meaning of Section 191 of the Penal Code was committed on one or other of the occasions specified in the charge. Then it appears to me that the only question is, was it necessary, in order to make the conviction legal, that the jury should find on which of the two occasions the offence was committed? Does the law in this country render that essential to a conviction for giving false evidence
20. The 439th section of the Code of Criminal Procedure now in force requires that 'the charge shall state the offence with which the accused person is charged'; and the 440th, that 'the charge shall contain such particulars as to the time and place of the alleged offence, and the person against whom it was committed, as are reasonably sufficient to give notice to the accused person of the matter with which he is charged.' The charge in this case does that. It states what the offence is, namely, that the accused committed an offence punishable under Section 193 of the Penal Code, and it contains such particulars as to the time and place as give sufficient notice to the accused of what he is charged with. He is told that by making the two statements, one of which it is alleged he knew or believed to be false, or did not believe to be true, he committed an offence punishable under Section 193.
21. Section 442 says that the charge may be in the form given in the 3rd schedule to the Act. In that schedule there is such a form of charge as was made against the accused in this case, and it appears to me that unless a conviction upon a charge so framed is allowed by law to be valid, the putting this form of charge in the schedule was not only useless, but is also inconsistent with saying that the jury is required by the law to find and to state upon which of the two occasions mentioned in the charge the false evidence was given. If the jury is required to state that, then two charges in the form No. 10 in the schedule would be proper. One would state that evidence was given on the 23rd of January 1873, which the accused either knew or believed to be false, and the other would state that evidence was given on the 13bh of February 1873, which the accused either knew or believed to be false. If it is required by the law that the jury or the Court, while the trial is with assessors, should find distinctly on which of the occasions the false statement was made, the alternative charge given in the schedule is perfectly useless.
22. Again if it is necessary for the jury, in order that the conviction shall be valid, to say which of the two statements is the false one, it is requiring the jury to find what is not alleged in the charge. All that the charge alleges is, that one of the statements was known or belived to be false, or not belived to be true, and that thereby the offence was committed. Such a charge being authorized by the law, it appears to me that all which the Court has to find to sustain a conviction for giving false evidence is that the allegations in it are proved.
23. In considering what the intention of the Legislature was in making these provisions in the new Code of Criminal Procedure, and giving in the schedule this form of charge, I think it is important to see what, at the time this Act was passed, was the acknowledged state of the law. It had been decided by a Full Bench of this Court that a conviction upon a charge of this description was legal. That view of the law had been acted upon, undoubtedly, for some years in this Presidency. In Madras, as appears from the case of M. v. Palany Chetty 4 Mad. H.C. Rep. 51 the same view of the law was adopted, and it cannot be doubted that this decision was acted upon in that Presidency. We have no reported case in the Bombay High Court, and I do not desire to speak merely from memory as to what was the practice in that Presidency. But in Madras and in Calcutta, and, my belief is, in Bombay also, the law was considered at the time this Act was passed to be, that a conviction of a person who was found to have intentionally made contradictory statements on oath or solemn affirmation was legal. I cannot think that the Legislature intended, by the way in which the new Code has been drawn, by the omission of certain sections which are in the old Code and the substitution of others, which probably were supposed to be an improvement in the wording or arrangement of it, to alter the law as to the offence of giving false evidence. That this charge, although called an alternative charge, and being so far alternative that two statements are set out in it when one offence only is alleged, namely, that the accused thereby, that is by making statements, one of which he knew or believed to be false, committed the offence, should be considered as a charge of but one offence, and was to be dealt with by the jury as such, I think is shown by Section 452, which says that there shall be a separate charge for every offence.
24. It was argued that it would prejudice the accused in respect of his subsequently pleading an acquittal or a conviction, if a conviction were allowed upon a charge framed as this is, and that he might be tried again for making one or other of the statements which are the subject of the present charge. Section 460 provides for a person who has once been tried for an offence, and convicted or acquitted of such offence, not being liable to be tried again on the same facts for the same offence, nor for any other offence for which a different charge from the one made against him might have been made under Section 455. If the question should ever come before me--What is the effect of a conviction or an acquittal upon such a charge as this, I should hold that the accused could not be tried again for giving the evidence on either occasion which is set out in the charge, for then he would be tried again on at least a part of the same facts as he had been tried upon before.
25. I concur with my learned colleagues in thinking that the second part of Section 461 does not apply to this case. This is a charge of but one offence, and the conviction is a conviction of that offence, and need not specify more than the offence of which the person accused is convicted. Here the jury found upon the facts proved before them that the accused committed an offence punishable under Section 193. It appears to me that this finding is a good finding; nor do I see that Section 257 as to the duties of the jury interferes with it, or prevents the finding being as it is. Section 257 says 'that it is the duty of the jury to decide which view of the facts is true, and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned.' I understand this to mean that it is the duty of the jury to find whether the view of the facts that the accused made the two statements, that they were such that they could not both be true, and that he knew or believed one of them to be false, is true. I do not understand it as meaning that the jury have to select from a part of the charge some of the facts, and say whether they are true. What is meant is the whole view of the facts alleged against the accused, the view taken by the prosecution which leads to the conclusion of his guilt, or the view which is set up on his behalf, and which would make him innocent. I do not feel at all pressed by the provisions of Section 257. It appears to me that this was a charge authorized by the law, and that the allegations in it, which are sufficient to support a conviction, have been found by the jury to be proved. If it is a good charge, nothing more is necessary to be found by the jury than that the allegations contained in it are true. I cannot say that it is an illegal charge, finding it, as I do, deliberately allowed by the Legislature, and inserted in the schedule which is referred to in Section 442.
26. As regards the point at issue, there is no material difference between the present Code of Criminal Procedure (Act X of 1882) and the superseded Code (Act X of 1872). Sections 439 and 440 of Act X of 1872 have become Sections 221 and 222 of Act X of 1882. Section 554 of Act X of 1882, as compared with Section 442 of Act X of 1872, stands thus:
Section 442, Act X of 1872. Section 554, Act X of 1882.
The charge may be in the form given in The forms set forth in the 5th schedule,
the 3rd schedule of the Act, or to the like with such variation as the circumstances of
effect. each case require, shall be used for the
respective purposes therein entioned.
27. The form of charge [No. XXVIII (4) of Schedule V, Act X of 1882] corresponds with the form given in the 3rd schedule of Act X of 1872.
28. The sum of the matter I take to be this: Every possible presumption in favour of a reconciliation of the two statements should be made, and it must be found that they are absolutely irreconcilable before a conviction can be had upon the ground that one of them is necessarily false. But when this is found, and if the person making the two absolutely contradictory statements is of sound mind, it seems to me plain that one of the two statements must be false, and that the person making them cannot believe both of them to be true, but must know one of them to be false; and if when making them he was legally bound by an oath, or by any express provision of law, to state the truth, he must, as it seems to me, be guilty, as regards one or the other of the two statements, of the crime of 'giving false evidence.' And looking to the course which the law upon the subject has taken in India during the past sixty years, and to the evident intention of the Legislature, I cannot doubt that the Code of Criminal Procedure has dispensed with the necessity of finding which of the two statements is false, and has empowered the Courts to convict alternatively.
29. In the case now before us, Ghulet before Munshi Behari Lal, a Magistrate of the first class in the Azamgarh District, on the 13th December 1883, deposed as follows:
When the panchayat was removed from the road to the kothara, five carts were standing near the large well and the nim tree. The cartmen were cooking their food. They were naked. They had nothing but dhotis on. I could not see their purses, as they had their dhotis tied high. When the panchayat broke up, all of us came and stood on the road. Harpal, chaukidar, the accused, here present, asked the panches to listen to him. He then proposed that we should take our food, and then assemble in the 'shisham' grove, and rob the cartmen of their money. Sacha and I went home to the chauki to take our food. Tehal went to Bipat, his 'samdhi's' house. The rest went northwards to Sarai Mohan with Harpal, where Sheopal and Harpal live. At seven gharis after nightfall, Saeha and I, after taking our dinner, went to the shisham grove. When I got there, I found Harpal, Bikanu, Sheopal, Dhuman, Sheo Tehal, Paltu and Bipat in the grove. We left that place and came and stood near the road at a distance of 6 or 7 biswas to the west of the village of Bhira. Harpal then told us to wait while he went to see whether the carts had gone on or not. He went and brought Gulzar and Sahai, and said that the carta had gone on. We all went after the carts; Harpal would not let us have anything to do with the carts while they were within his chaukidari circle, as he said he would be called to account for it. After this, we beat the cartmen with clubs near Barda. We all of us beat them. I did not strike any one. The cartmen were knocked down. I saw two cartmen knocked down.... Harpal, Bikanu and Gulzar took the cartmen'a money.... It was 5 or 6 gharis before dawn when the attack was made, and the money taken. The police station is less than a mile from the spot where the occurrence took place. The cartmen went there, but no one came. After robbing the money, we all left the main road and went by the road on the east to Banjari Pokhri in the village of Bhira. There we shared the money. Harpal, accused, gave me Rs. 5, Sacha 5, and Sahai 6; and Harpal, Bikanu and Sheopal took Rs. 29 each.... Sacha and I took the money and went away. I left the other persons on the spot. The time was 3 gharis or a pahar before dawn. Thana Barda is a kos from Banjari Pokhri. The place where the cartmen were beaten is less than a mile north of the shisham grove. The grove is three rassis from the road. The money was taken out of three purses, of which Harpal had two, and Bikanu one, and the division was made at Banjar Pokhri. The persons named took away the purses with them. These men (pointing to the accused) were the dacoits. I was standing at a distance of seven or eight paces from the carts on the north side. All the carts were in front of me. The accused took the money from the two last carts. My house is a kos from Bhira. To the west of Bhira and to the right of the road to the chauki is a tank. I stayed at my house one ghari. The night was dark. I can see 50 paces on a dark night. Banjari Pokhri is less than a mile on the north of Bhira.... Gulzar and Tehal struck at the cartmen with their lathis. They struck the cart drivers in the front carts, and did not molest the behind ones. I purchased grain, and spent the Rs. 5 which I had received. I purchased it from several shops.' And in a deposition made in the Sessions Court at Azamgarh on the 20th March 1884, Ghulet said: 'I was not concerned in the dacoity which took place near Barda. I know nothing about that dacoity. I know nothing about the matter charged against the accused now in Court.
30. Sahai, before the said Magistrate, on the 13th December 1883, deposed as follows:
In the evening at sunset, the panchayat rose, and proceeded to kothara Padarath Singh. On the road we saw five carts standing.... After coming to the road, Chirkut, Jaipal, Dhuman Siddhu, and Sur went away home; all the others remained. Harpal, chaukidar, accused now present, told all of us that the cartmen had money and that we might rob them of it if we met in the shisham grove after taking our food. Mazhar and Gulzar went home, and so did Sacha and Ghulet. Bipat went with Tehal to his house; the others went north in the direction of Sarai Mohan, where Harpal lives. Dhuman, Paltu, Sheo Tehal and Harpal went away. Then at midnight Harpal came to the place, and first took Gulzar and Mazhar to the road towards west from Bhira. Tehal, Bipat, Ghulet, Sacha, Dhuman, Paltu, Sheo Tehal, Bikanu and Sheopal were standing there. Harpal and Bikanu said that the carts were moving on, and we had all better start. On the way, at the Siwana chauki it was suggested that the robbery should take place there. Gulzar said that they would get into trouble, and that there must be no plundering at that place. We went on to the confines of Barda, and then the robbery began. We all used our sticks at once. All of us were armed with sticks. The cartmen were beaten. Ghulet did not strike any one. I also beat a cartman with my stick. Bikanu, Harpal, Gulzar, and Sheopal robbed the cartmen of their money. Having plundered the money, they ran to the east, and passing by the outskirts of Bhira, they went to Banjari Pokhri. There the money was divided. Harpal and Bikanu divided the money. I received Rs. 6, which were given me by Bikanu. One rupee was taken back again. Rs. 5 were given to Ghulet, and Rs. 5 to Sacha. All the other persons got Rs. 6 each. Harpal, Bikanu, Sheopal, and Gulzar said that they would take Rs. 20 each. I asked them why they had given me less. They said that we were labourers, while they were road chaukidars and would be held to be responsible for what had happened. Then I went home alone. The whole money was in three network purses, two of which were in the hands of Bikanu and one was with Harpal.... The scene of the occurrence must be one kos from the shisham grove, or a little more. I left first.... When I left, it must have been about a pahar before daybreak. When the attack took place, it must have been about 6 gharis before daybreak. The sheet now shown me belongs to me. It is stained with the oil of my head, and it was stained somewhat with the oil of the carts at the time of the attack. The red stains on the sheet were caused by blood at the time of assault. Banjari Pokhri must be one kos to the north of the place where the attack took place and less than a mile from mauza Bhira. I took my money from Banjari Pokhri and went away first. At the time of the attack, Ghulet was ten paces behind all the carts.' And in a deposition made in the Court of Session on the 20th March 1884, Sahai said: I know nothing of the Barda dacoity. I know nothing about the matter charged against the accused in Court.
31. Prima facie these statements are absolutely irreconcilable. I would therefore sanction the prosecution of Ghulet and Sahai on alternative charges for the offence of giving false evidence on the occasions and in the statements set out above.
Straight, Offg. C.J.
32. The elaborate and exhaustive order of my brother DUTHOIT satisfies me that my judgment in Empress v. Niaz Ali I.L.R. 5 All. 17 was erroneous. In expressing the views I gave utterance to therein, I enunciated what I believed to be and still believe to be the rule of English law upon the subject. Unfortunately, my attention was not called either to the rulings of the Courts of India, to which my brother Duthoit has referred at length, nor was it directed to the form in the schedule of the Criminal Procedure Code which expressly provides for the forming of alternative charges of giving false evidence. It goes without saying, that had I been aware of the two Full Bench decisions of the Calcutta Court, I should have hesitated before differing with such high authorities, and should have felt bound, had I differed to enter fully and explicitly into my reasons for doing so. No useful purpose would be served by my now discussing the rulings of the English Courts which were present to my mind at the time I gave judgment in the case of Nioaz Ali I.L.R. 5 All. 17. As I agree with my brother Duthoit, that they are inapplicable in this country, it is enough for me to say that I concur in the order he proposes.