1. This is an appeal from an order of the Sessions Judge of Azamgarh rejecting an application made by one Yar Muhammad for sanction to prosecute eight persons under Section 193, I. P.C. These eight persona among others gave evidence in the Court of the Sessions Judge of Azamgarh in a case in which Yar Muhammad and others were accused of the serious offences of murder rioting and arson. The Sessions Judge believed the evidence of. five of these eight witnesses, disbelieved the evidence of one Mt. Gobindi and felt himself unable to accept the evidence of the other two. He found however that the case as stated by them was substantially true and he convicted eight persons under Section 302, I.P.C., and sentenced them to transportation for life. He also found them guilty of minor offences and all except three of them guilty of the offence of arson and awarded separate sentences under the relevant sections. When the appeal came before the High Court, the Judges were of opinion that the conviction could not be sustained in the case of any of the persons who were transported for life and the Judges stated that in their opinion the witnesses who had given evidence
as regards the incident of the attack on Subh Lal are unscrupulous liars and no reliance can be placed on the statements of anyone of them.
2. Relying on these observations Yar Muhammad made the application, to the Sessions Judge, which is now before me in appeal. Apparently there was some defect in the application as although he asked leave to proceed against eight persons, be instanced only the statement made by one of them Bansi Singh. But it appears that the statement of all the eight persons were in many particulars almost identical and had the learned Judge thought it proper to order a 'prosecution of all of them, the application could no doubt have been amended so as to put the matter in the proper form. The Sessions Judge however refused to take any action. He said in his order:
This Court believed the prosecution evidence of most of the witnesses and does not see how it can feel justified in ordering their prosecution for the very evidence it believed. No fresh material has been placed before it to justify it to order prosecution;
and he has gone on to say:
the fact that the evidence of a witness is believed by one Court and disbelieved by the other Court is sufficient to give the benefit of doubt to the witness, and he has cited one decision of the Patna High Court Raghupat Sahai v. Emperor A.I.R. 1923 Pat. 160 and one case of this High Court Debi Dutt Tewari v. Emperor : AIR1928All548 in support of this view.
3. Neither of the judgments referred to by the learned Sessions Judge go so far as to say that no person should be convicted of perjury who has been believed by the trial Court and disbelieved by the Court of appeal. But undoubtedly the fact that the trial Judge felt himself able to accept 'the statements of these witnesses as true evidence in a trial for murder is a point to be taken in their favour when the question of prosecuting these persons for perjury arises. The case which the learned Sessions Judge had to try was one of those difficult cases in which communal feelings ran high in a village community. A party of Mahomedans had roused the feelings of the Hindus by killing a nilgai which is regarded by the Hindus as having some connexion with the sacred cow. The Hindus assaulted the Mahomedans and caused them serious injuries. The Mahomedans retaliated in force and there is no reason to doubt that it was a party of Mahomedans who came to the village of Bhadsara in the afternoon of 30th April 1930, set fire to and burnt eight houses belonging to the Hindus and killed a man named Subh Lal, inflicting on his person no less than 19 injuries nine of which were caused by sharp cutting weapons and the others by lathis. One of the injuries fractured Subh Lal's skull and he had three ribs broken. There is therefore no question that the man was murdered. The defence put up by the Mahomedans accused of the crime was that Subh Lal was injured in the forest when the Hindus attacked the Mahomedans for killing the nilgai. This story has not been believed by any Court and it is incredible. It is proved conclusively that when the Sub-Inspector of Police passed through the village of Bhadsara on his way to the forest to investigate the case against the Hindus, he found no injured person in the village of Bhadsara, but on his return he saw a party of some 60 Mahomedans running away. He found, the houses burnt, Subh Lal dying and other persons injured. These facts were held to be proved by the Sessions Judge and it does not appear that the High Court in appeal took a different view. But the High Court felt unable to support the conviction of the accused persons for the murder of Subh Lal, because they found the witnesses to be liars.
4. In a case of this kind it is perhaps impossible to expect that the witnesses appearing for the prosecution will speak the truth in every detail. In the pro-sent case it is evident that the statements made by the witnesses were prepared statements. When they came into Court these persons had been told what to say and they learnt their story so well that they deposed in almost identical terms as to the events which they said they had seen. Where as many as eight witnesses tell a set story in almost identical terms, a suspicion must arise that they may not be speaking the truth and it is because the statements of the witnesses in this case are of this nature that they have been branded by the learned Judges of this Court as unscrupulous liars. But there is nothing in 'that judgment of this Court which can be said to disprove any fact stated by these witnesses. Not one of the accused persons was able to satisfy the Court that he was not present and that he was not one of the Mahomedans who undoubtedly burned the houses of the Hindus and killed this man Subh. Lal in revenge for the attack made earlier by the Hindus on the Mahomedans. There is therefore nothing in the statement of any of the witnesses which can be taken and proved to be false. In my opinion prosecution for perjury should not be launched unless there is some proof likely at least to satisfy a Court that the statements made by the person charged are false statements. It is not enough to prove that ordinary village witnesses coming forward in a communal case have decided among themselves what they are to say and how they are to say it. Each one of these witnesses as I read the evidence may have seen the incident exactly as he described it. I omit the case of Mt. Gobindi who was disbelieved by the Sessions Judge himself. She was clearly confused and frightened and it is impossible to make out from her deposition what she intended to say. The person against whom this application was mainly directed is Bansi Singh. If that statement were to be taken by itself I should hesitate to say that there is anything in it which can be proved to be false and it is hot proper to conclude that the statement is false, because the statements of the other witnesses appear to have been modelled on it.
5. Lastly I would only in extreme cases sanction prosecution for perjury in a case of this kind at the instance of those per-sons who are the enemies of fie witnesses both on personal and communal grounds. Such prosecutions merely tend to exacerbate the already bad feeling existing between Hindus and Mahomedans in these villages and they do little service to the cause of justice. In my opinion the Sessions Judge was right in rejecting this application and I dismiss the appeal.