1. This rule was issued on three grounds. The first is that the conviction is not sustainable in view of the fact that the evidence in respect of which the petitioner was prosecuted was not read over to him according to law. The facts are that the petitioner was a witness in a case and was examined-in-chief on 18th November 1927 and his deposition was read over to him by the Peshkar of the Sub-Deputy Magistrate before whom he gave his evidence while another witness was in the box. He was cross-examined on 9th December 1927 and the Magistrate read over the whole of the deposition including his examination-in-chief on that day. There is a note recorded under the deposition of both days that it was read over to the petitioner and admitted by him. The petitioner was charged with making contradictory statements in examination-in-chief and in cross-examination. The objection on the ground that the examination-in-chief of the petitioner was read over to him by the Peshkar on 18th November while another witness was being examined is now set at rest by the decision of their Lordships of the Judicial Committee in Abdul Rahman v. Emperor . It is not necessary to consider the cases previous to that decision which held that absence of strict compliance with the words of Section 360, Criminal P.C. made the statements inadmissible in evidence. Their Lordships further held that non-compliance with the provisions of Section 360 is curable under Section 537, Criminal P.C., that is, it will not vitiate the trial unless it is proved that it has caused failure of justice. The learned advocate for the petitioner rightly contends that it cannot be said in the present case where the petitioner has been prosecuted and convicted for making, two contradictory statements that the non-compliance with the letter of the law has not caused failure of justice in this case. It is unnecessary to enquire whether this irregularity has really caused failure of justice in this case because whatever irregularity there was it was cured by the subsequent reading over of the whole of the evidence by the Magistrate himself at the end of his cross examination. It is urged that the reading of the examination-in-chief at a subsequent date was not strict compliance with the words of Section 360 and reliance has been placed on the ratio of the case of Shamserali Hazi v. Emperor A.I.R. 1926 Cal. 563. I do not think that this contention should prevail. Section 360 says that as the evidence of each witness is completed it shall be read over to him. The evidence of a witness is ordinarily completed when he has been examined-in-chief, cross-examined, and if necessary, re-examined. By the completion of the evidence in that section is not meant what the witness's deposition was on a particular day. The case relied upon was decided upon a totally different set, of facts There the witnesses were examined one after another for some time and then the depositions of these witnesses were read over to them altogether. In that case, therefore, the evidence of each witness was not read over to him after its completion. Even if there has been in this case any irregularity, it is according to the view of their Lordships of the Judicial Committee curable under Section 537: and there is nothing to show that the reading of the examination-in-chief on a subsequent day caused failure of justice because the defence of the petitioner is not that he did not make the statement but that the first statement that he made was on hearsay. This ground must be overruled.
2. The second ground is that the petitioner was not given an opportunity of explaining the discrepancies in his alleged statements before the prosecution was started; and the third is that the contradictory statement not being apparently irreconcilable the petitioner ought not to have been convicted at all. These two grounds may be considered together. There is no provision in the law that it is the binding duty of the Magistrate to give an opportunity to a witness to explain the contradictory statements. But in this case the Magistrate has considered the explanation which the petitioner then gave and which he has given in the present trial. Whether the complaint made by the Court under Section 476, Criminal P.C. before an opportunity was given. to the accused to offer sufficient explanation of his contradictory statements has vitiated the trial is a question which cannot be argued after conviction. As to the statements being reconcilable it appears to me that on a reading of the whole of the deposition of the witness no doubt is left in one's mind that the accused apparently made a statement in his examination-in-chief from which he resiled in his cross-examination. His contention is that what he stated in his examination-in-chief was on hearsay and the statement made in his cross-examination was the true statement, namely, that he had not seen the occurrence at all. In his examination-in-chief he said:
In went there and saw Mahendra was being beaten by Jyotish, Rabati and Karuna with cane and lathi. Mahendra was tied with a rope to a post.
3. In his cross-examination he said:
In my presence no body assaulted Mehendra. I saw Mahendra sitting in the yard. I did not notice whether his hands ware tied. No man was found near him. Nemai got bail at the time of the occurrence. He took his seat inside the house.
4. Apparently the two statements cannot be reconciled. But the learned advocate for the petitioner argues that the first statement may be explained away by saying that what he said there was the information he had got from others. Our attention has been drawn to the record of the deposition of the petitioner in which the word 'saw' was written over some other word which, it suggested was 'heard.' This cannot be because the Word 'heard' does not fit in the sentence and is inconsistent with the words following namely that Mahendra was being beaten. It cannot also be maintained that that statement was made on hear say because the accused distinctly said that Mahendra was being beaten by some persons with cane and lathia He went on to say:
I asked Nemai why they were beating the complainant in the way. Nemai said ha ia very wicked. Nemai was then sitting on the-Daili giving the order to beat the complainant. I left the place.
5. All these statements cannot be explained away by saying that they were what the accused heard from other persons. This ground that the statements can be reconciled must fail.
6. But it has been submitted that in every case of contradictory statements it is not desirable to prosecute a witness and reference has been made to Keramat Ali v. Emperor : AIR1928Cal862 . Where the learned Chief Justice has observed that a prosecution in these circumstances should be undertaken when it appears to Court that it is expedient in the interest of justice that a complaint should be made under Section 476, Criminal P.C. This is quite true. This observation was made on an appeal from an order under Section 476 and the Court impressed upon the Sessions Judge who had passed the order under that section to find if it was expedient in the interest of justice to prosecute the witness as in that case it appeared to their Lordships that the appellant had given some explanation which might have been in the circumstances accepted. A passage has been quoted to us from Lewin's Crown Cases p. 270 where Holroyd, J. is said to have expressed himself as follows:
Although you may believe that on one or other occasion she swore that which was not true it is not a necessary consequence that she committed perjury: for there are cases in which a person might very honestly and conscientiously swear to a particular fact from the best of his recollection and belief and from other circumstances at a subsequent time be convinced that he was wrong and swear to the reverse without meaning to swear falsely either time.
7. These observations are very wise and should always be kept in mind in dealing with cases of this character. In the present case, however, I think no such explanation can be given of the different statements made by the petitioner. It also seems to me that it is a case in which it is in the interest of justice that the offender should be prosecuted and punished. It is not uncommon in the Courts of this country to notice witnesses intentionally giving false evidence with no sense of responsibility and even going to the length of giving inconsistent evidence. Detection of such offences is not always possible but when they came to the notice of the Court they should be adequately dealt with. In my opinion this rule fails and should be discharged. The accused must surrender to his bail and serve out the remainder of the sentence.
8. I agree that the rule fails upon each of the three grounds on which it was issued. As to the first point, I am of opinion that there was a substantial compliance with the provision of Section 360, Criminal P.C. and that if there was any irregularity it is cured by Section 537 of the Code. No objection was taken at the time of the trial nor has it been shown that the accused was prejudiced in any way: Abdul Rahaman v. Emperor . As regards the second ground there is no provision of law which requires that a witness should be given an opportunity to explain discrepancies in his evidence. But it is open to a witness if he wishes to do so to explain at the time when the deposition is read out to him. Finally as to the third ground, there seems to be no doubt whatever on the merits that the petitioner did commit perjury; and upon that point I have nothing to add to the judgment which my learned brother has just delivered. I agree that this rule should be discharged.