1. This is an appeal against a decision of the learned Sessions Judge at Burdwan, setting aside a conviction and sentence passed by a Magistrate, 1st Class, Burdwan, under Section 193, I.P.C. The learned Judge acquitted the accused on a point of law, and did not deal with the merits of the case against the accused. The story, shortly stated, is that on the evening of 16th March 1933, the attention of the villagers was attracted by sounds coming from the village Post Office. On going there, they found that the Post Master was lying gagged and bound and apparently in a semi-conscious state. A sum of approximately Rs. 1060 was found missing, and, the Post Master complained of having been seized and bound by robbers. The Police came to the conclusion that the story was false, and that the Post Master had set up a bogus story to cover his own defalcations. He was sent up for trial under Section 193, I.P.C. for fabricating false evidence in order to create an impression of robbery. The learned Judge held that S, 193 is not intended to be applicable to an act done by an offender to screen himself from punishment, and is only applicable to an act done by the offender for the purpose of getting another person into trouble. In my opinion, this view of the section is incorrect. The learned Judge seems to have been misled by Note G made by the framers of the Code in their introductory note, which is quoted at p. 457 of Ratanlal's 'Law of Crimes,' Edn. 12, wherein they say:
We do not propose to punish him for fabricating evidence with the view of escaping punishment, unless he also contemplated some injury to others as likely to be produced by the evidence so fabricated....
2. And then an example is given. It appears, however that this intention of the framers of the Code was not carried out, because in the Draft Penal Code, Ch. 9 which deals with 'False Evidence,' there is a Section 182 which would have carried out this expressed intention. Neither this section nor any section like it finds any place in the present Code. The learned Judge, therefore cannot be right, unless it can be shown that in other ways the framers of the Code have carried out that intention, and that such an intention can be discovered from the actual words of Section 193. The decision in Emperor v. Ram Khilawan (1906) 28 All 705 supports the view which the learned Judge has taken. In my opinion, that decision is not correct. It cannot be denied that no reference may be made to the introductory note to a Code or to any statement of reasons for legislation, unless it be where a section is ambiguous, and cannot be construed without some such reference to outside sources. There is no ambiguity however, in Section 193, which clearly covers a case such as this. The result is that the point upon which the learned Judge acquitted the accused, was wrongly decided by him. But the learned Advocate for the accused has asked us not to send the case back to be reheard by the Sessions Judge on appeal, but to examine the evidence ourselves and dispose of the case one way or the other, and this we decided to do. Undoubtedly, it is a case of very great suspicion against the accused. There are a number of facts which lead one to suspect that the real truth has not been placed before us either by the accused or by some of the witnesses for the prosecution. But I can find nothing in the evidence which is inconsistent with the possibility of the story of the accused being either wholly or to a large extent true. In such a position, in my opinion, it would not be right or just to convict him of this offence.
3. The only way in which the learned Advocate for the Crown has endeavoured to show that the evidence is only consistent with guilt, is to ask us to discount the truth of the evidence of a considerable number of his own witnesses. Where they have given evidence which supports the case for the accused, he asks us to come to the conclusion that they have been mistaken or misled by the facts. With regard to other witnesses, he has frankly admitted that in order to arrive at any sort of logical conclusion about the facts, we must disbelieve them. In such circumstances, it seems to me impossible to convict the accused of this offence. (After examining the evidence, his Lordship concluded.) That substantially is the evidence. As I have stated, it is a case of grave suspicion, but one which, in my opinion, has not been satisfactorily proved, and the result is that although the decision of the learned Judge is reversed on the point of law, the appeal itself is dismissed on the merits. The accused who is on bail is discharged from his bail bond and is acquitted.
4. I agree that the evidence being entirely circumstantial is not inconsistent with the possible innocence of the accused. On the point of law I should like to add that an accused could only be guilty under Section 193, I.P.C. if he had the intention of fabricating evidence in order that it should appear in evidence in a judicial proceeding or in a proceeding taken by law before a public Servant, as such, or an arbitrator as laid down in Section 192. The prosecution must therefore show that there was such an intention and that the accused did not fabricate evidence merely to screen himself in the belief that his conduct would result in no proceedings whatever being taken.