1. The appellant Nizam Sheikh was tried upon the following charge: 'That you, on or about the 21st of May 1883, at Azugerah, in thaiiah Shazedpore, in the course of the enquiry intdlhe cause of death of Abuchi Bewa and Kefat Chokra by the Subordinate Inspector of Shazedpore, stated in evidence, 'I came to the place of occurrence bid hearing the screams of Abuchi Bewa. I saw Mora, Dhanoo and Pana carrying the dead body of Abuchi towards her house,' and that you, on the 14th day of August 1883, at Serajgunge, in the course of a judicial enquiry into the cause of death of Abuchi Bewa and Kefat Chokra by the Joint Magistrate, stated in evidence, ' I did not see Mohar, Panulla and Dhanoo dragging Abuchi Bewa on to her barl by night. I did not hear that night any one call out 'Help ! I am killed.' I did not see Mohar and his companions put Abuchi Bewa's body in the ghar facing east,' 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 and within the cognizance of the Court of Sessions, etc.' The prisoner has been convicted upon this alternative charge, and has appealed.
2. Under the provisions of Section 161 of the Code of Criminal Procedure, a witness examined by a police officer making an investigation is bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge, or to a penalty or forfeiture. A witness, therefore, who made a false statement to a police officer in reply to a question which he is bound by that section to answer would be guilty of intentionally giving false evidence, and the law laid down in the Full Bench case of the Empress v. Kassim Khan I.L.R. 7 Gal. 121 must be taken to have been altered by the Legislature.
3. In order to sustain any conviction for giving false evidence upon an alternative charge when no evidence is offered to prove the falsity of either statement in particular, it must be clear that the two statements are contradictory. This is not clear in the present case. The statements before the police were:
I came to the place of occurrence.
(2) I heard the screams of Abuchi Bewa.
(3) I saw A, B and G carrying the dead body of Abuchi towards her house.
4. The statements before the Magistrate were-
(1) I did not see A, B and G dragging Abuchi Bewa on to her bari by night (whether she was alive or dead is not stated).
(2) I did not hear that night any one call out 'Help ! I am killed.
(3) I did not see Mohar and his companions put Abuchi Bewa in the ghar facing east.
5. It is obvious that no one of the first three statements is necessarily contradictory of any one of the second three statements.
6. Then there is a further error in the proceedings before the Sessions Judge which would, in all probability, have proved fatal to the conviction. The Sessions Judge says in his judgment: 'By request of accused's pleader, the witnesses have been heard only once, but the four cases,' that is, the case of Nizam Sheikh and of the three other persons who were charged with similar offences, 'have been tried separately.' How, if the witnesses were heard once only, the four prisoners could have been tried separately, the Sessions Judge does not explain, and it is not easy to understand. If the Sessions Judge means that four separate records were made up, while the examination of the witnesses, which was the substantial portion of the trial, was conducted only once for all four prisoners, this is substantially trying the four prisoners together, and that this is an improper mode of procedure has been pointed put on more than one occasion see for example Empress of India v. Anant Ram I.L.R. 4 All. 293. We direct that the prisoner Nizam Sheikh be acquitted and discharged. This judgment will govern the case of Nathu Sheikh, the case of Jatu Sheikh and the case of Chamu Ohowkeedar.