Subba Rao, J.
1. One Desappa was murdered and Certain persons were prosecuted under Section 302, Penal Code, in connection with that murder, The petitioners gave statements in that case under Section 161, Criminal P. C, in connection with the death of Desappa before the Taluk Magistrate, Dharmavaram. They stated to the effect that they had actually witnessed the assault which eventually resulted in the death of Desappa and some of them bad been asked to watch over the injured persons. Later on, in the preliminary enquiry they denied the earlier story and stated that they made the statements before the Taluk Magistrate as the police threatened them and that the statements were really made at the dictation of the police. Subsequently these witnesses were given up in the Sessions Court. The accused were tried and acquitted by the Sessions Judge, Anantapur. The learned Sessions Judge held on a consideration of the evidence that the prosecution failed to prove the case set up by them. Desappa died on 18th January 1946. The statements under Section 164, Criminal P. C, were made immediately thereafter and the judgment 'was delivered on 10th August 1946. The application was filed before the Stationary Sub-Magistrate, Dharmavaram, in the latter part of the year 1946, Both the Sub-Magistrate and the District Magistrate held that in the interests of justice a complaint should be filed against the petitioners under Section 193, Penal Code.
2. It is no doubt true that either the statement made before the taluk Magistrate under Section 161, Criminal P. C., Cr the evidence given in p. e, o. no, l of 1946 on the file of the Stationary Sub-Magistrate, Dharmavaram, is false and false to the knowledge of the petitioners. If according to the case of the respondent the statements made under Section 164, Criminal P. C,, were true the evidence given before the sub-Magistrate in P.R.C. No. 1 of 1946 was false. But the petitioners say that they were forced to make false statements under 8. 164, Criminal P. C., and that later on they spoke the truth before the Magistrate. In similar circumstances, the observations made by Beaumont C. J., in Emperor v. Ningappa Desappa I.L.R. (1942) Bom. 26 : A.I.R. 1941 Bom. 408: (1941) Cri. L. J. 167, are very instructive and may be cited in extenso. The learned Judge Says:
No doubt, a man making a statement on oath before a Magistrate under Section 164, Criminal P. C, should speak the truth but if he does not, the least he can do la to tell the truth when subsequently he goes in the witness box. To prosecute a man who has resiled from a false statement, made under Section 164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment (Cr having made a false statement under Section 164 than that he should be induced to believe that it is to his interest, however false the statement may have been, to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent persons is too great to be risked.
With great respect I agree with his observations. Applying those observations I must say that the prosecution of the petitioners would not be in the interests of justice. Further these petitioners are illiterate Madigas and it is impossible to rule out the possibility that they were forced to make the statements which they did under B, 164, Criminal P. C, and later on they spoke the truth before the Court.
3. For the aforesaid reasons I set aside the Order of the lower Court and dismiss M. p. NO. 4 of 1946 on the file of the Stationary Sub-Magistrate, Dharmavaram.