V.B. Raju, J.
1. I find that in this case the learned Magistrate has called for the whole record of another case and has actually exhibited the original depositions given by the Punches in the previous Special Case No. 6 of 1980. The learned Magistrate has ignored the instructions contained in Rule 34 in Chapter II of the Bombay High Court Criminal Manual, 1960. Original depositions in other cases should not be marked as Exhibits unless it is very necessary to do so. Ordinarily, certified copies of depositions would serve the purpose and original re-cord should not be sent for. The instructions of the High Court contained in Rule 34 in Chap. II of the Bombay High Court Criminal Manual, 1960, should be strictly followed by the Magistrates.
2. For the reasons given in my judgment in Criminal Appeal No. 50 of 1963 this appeal against the acquittal of the second Panch is dismissed. According to the prosecution both the Panchas were present at the time of the panchnama and both of them gave false evidence in their depositions in special Case No. 6 of 1960. In the present prosecution the evidence led by the prosecution and the evidence led by the defense is substantially the same and does not call for any additional remarks.
3. The only additional argument advanced by the learned Government Pleader is that there is an admission made by the accused that the incident happened on 5-12-59 and that therefore the case of the defiance that the panchnama was signed at 11 A. M. on 5.12-59 must be false, because according to the prosecution the punchnama was only made at 1 P. M. Regarding the alleged admission by the second Panch Heman the respondent, the learned Government Pleader refers to Ex. 8, his deposition in Special Case No. 6 of 1960, and in particular, to the following sentence contained therein:
On 5-12-59,1 was called from College by P. S.I. Hirubhai.
The prosecution case is that the deposition given by Hemang in Special Case No. 6 of 1960 is false. So, according to the prosecution itself, the above sentence is false. In fact, it is the prosecution case that the contents of Ex. 8 are false. The learned Government Pleader contends that all the questions put to the accused by the learned Magistrate during his statement under Section 342, Cr. P.C. refer to the date 5-12-59. It is true that one of the questions mentions 5.12-59, but the other questions do not mention this date. In answer to the following question:
It is alleged that you were explained that a trap was being laid to catch P. C, Ramchandra Balu and the first part of the panchnama Ex.11 was drawn up there and signed by you. What have you to say about it?', the respondent gave the following answer. I had not gone to the house of Hirubhai at all. A constable came to call me while I was practicing in the college. On coming out I saw Hirubhai. He was known to me. I therefore signed a yellow paper at two places and a white paper. The signatures on Ex. 11 are mine.
We cannot treat this answer given by the res. pondent as admission that the incident had happen-ed on 5-12-59. As observed by the Patna High Court in Indra Singh v. Commr. of Income Tax B, & O. ILR 22 Pat 55 at p. 68 : AIR 1943 Pat 169 at p. 174, an admission roust be construed literally and strictly, and literally construing the answer of the accused, it cannot be said that he admitted that the incident happened on 5.12.59. In any case, this is not a case in which the accused can be convicted on the evidence of the police officer and Deepak. This is not a case in which on the evidence of the P. Section I. and Deepak alone, there can be a conviction, because if that is done, no Panch can have the courage of speaking against the police in any criminal case. Before we hold that the accused is guilty of perjury, we must have sufficient evidence to prove that his statement is false.
4. The appeal is, therefore, dismissed.