1. This case has been referred to me in consequence of a difference of opinion between Tottenham and Norris, JJ.
2. The accused has been charged with, and convicted of, offences under Section 193 of the Penal Code. Each charge followed the form given in Schedule V, XXVIII, II, (4) to the Code of Criminal Procedure and charged him with having, in the course of a judicial proceeding, made, as a witness, two contradictory statements, one or other of which he knew to be false or did not believe to be true. The conviction is in accordance with the charge without any express finding which of two contradictory statements was false.
3. Mr. Gasper, who appeared for the accused, raised these points. First he argued that, under the present law, a charge and conviction of this nature is in no case good. The validity of such charges has twice come before Full Benches of this Court.
4. In the Queen v. Mussamut Zimeerun such a charge seems to have been regarded as an alternative charge of perjury committed either on the one occasion or on the other, and to have been held good on that ground under the Procedure Code then in force. If the matter be viewed in that light, it would be very difficult to reconcile such a charge with Section 452 of the Code of 1872 or with Section 233 of the present Code, which requires that each offence shall be the subject of a separate charge, except in the particular cases (of which this is not one) in which alternative charges are expressly allowed.
5. But in the subsequent Full Bench case of The Queen v. Mahomed Humayoon Shah Couch, C.J. with whom Kemp, J. concurred, expressly lays down that such a charge is not a charge of two offences in the alternative, but of one offence. And I think the judgments of Morris, J., with whom Birch, J., concurred, and of Alnslie, J., embody the same view. The other two Judges who made up the majority of the Court did not give their reasons. I think I am bound to accept this view of the law, though, if it were not framed by authority, it is not a view that I should myself have taken.
6. If this be so, Section 233 does not affect the matter. And the form of charge given in the schedule, which is sanctioned by Section 554 and has been followed in this case, is legitimate and may be followed by a corresponding conviction. I think, therefore, that Mr. Gasper's first contention fails.
7. Secondly, he argued that a charge and conviction in the present form can only properly be used in a case in which it is impossible to find, upon the evidence obtainable, which of the two inconsistent statements is true; and for this he cited The Queen v. Bedoo Noshyo. As a guide to the discretion of Courts in framing charges and in dealing with them, I think what is there said is of great importance. But it cannot affect, and was not, I think, intended to affect, the law applicable to the matter.
8. Thirdly, Mr. Gasper argued that the rule which has been laid down does not apply in a case where, as here, the two inconsistent statements have been made in the course of the same deposition. It is no doubt very important that a witness honestly desiring to correct an error in his evidence should not be deterred from doing so by the risk of a criminal charge. And charges arising out of alleged inconsistent statements in a deposition may well require, and I think they so require, to be watched with special care. But I can see no sufficient distinction in principle between such contradiction in one deposition and in two. If it is an offence under Section 193 to make two contradictory statements, one or other of which must be false, and to do so with a guilty intention, on two distinct occasions, I think it must be equally an offence to make them on one occasion.
9. I, therefore, agree with the view of Tottenham, J., upon the matter referred to me.
Wilson and Tottenham, JJ.
10. The rule must be discharged, but the period during which the rigorous portion of the sentence was suspended will count as part of the original sentence.