Patna High Court
Nirghin Mahton vs Emperor on 1 March, 1920
Equivalent citations: 56IND. CAS.660, AIR 1920 PATNA 171
JUDGMENT Jwala Prasad, J.
1. The petitioner has been convicted under Section 193, Indian Penal Code, of having made falsely the following statement: 'There was no dispute in survey between me and the accused in respect of this orchard. Before the Attestation Officer, I did not say that the deed was a farzi one."
2. Nirghin Mahton, the petitioner, gave his evidence as a prosecution witness in a criminal case brought against Misri Lal by one Bulaki Sahu under Section 323, Indian Penal Code, before Babu Dharikshan Singh, Deputy Magistrate, on 4th April 1919. In cross-examination on behalf of Misri Lal, he admitted having executed a sale-deed in favour of Misri Lal in respect of an orchard for Rs. 100 and denied that this sale-deed was a farzi one. Being further cross-examined he trade the statement quoted above. The passage consists of two distinct statements. The Courts below have held that both the statements are false. The learned Sessions Judge has dealt with them together. I would prefer to deal with them separately.
3. As to the first statement--" There was no dispute in survey between me and the accused in respect of this orchard"--it is clear from the statements both by Misri Lal and Qanoongo Ram Gobind Sahay (P. W. No. 3) that there was no dispute between the petitioner and Misri Lal during the survey. Misri Lal clearly states that there was no tanaza at the time of khanapuri which took place 2 years ago (1917) and that the petitioner filed a tanaza (dispute) for the first time on the occasion of the attestation in 1919. Qanoongo Ram Gobind Sahay also says the same thing. He clearly states that the survey operations terminated with the stage of khanapuri in the year 1917 and that the dispute was filed at the attestation. He says that up to the stage of khanapuri it is survey operation and the subsequent stages are the settlement operations. He, therefore, makes a clear distinction between the survey and the settlement stages. No doubt the petitioner filed a tanaza at the attestation after the settlement stage had commenced, and the survey operations had ceased two years before that in 1917. The Courts below also recognized this distinction, but overruled the contention of the accused by the observation that these people generally understand by the word 'survey' the whole operation. When there is a distinction between the survey and the settlement stages as is recognized by the expert witness Qanoongo, the accused may fairly contend that he was strictly true in his statement there was no dispute in survey between me and the accused in respect of this orchard." There is no evidence on the record that the people generally understand by the word 'survey' the attestation stage also which is a part of settlement operations, much less is there any evidence that the accused actually did understand so by the word 'survey' or that he was not making the distinction which actually exists between survey and settlement operations. Moreover, the statement quoted above was made in answer to a question in cross examination and apparently the question must have been--Was there any dispute between him and the accused in survey--and if the answer of the accused was "no," the above statement would appear in the form in which it finds place in the evidence of the accused. The question then arises in what sense the learned cross- examiner used the word survey,' whether he used it in the technical sense in which it is used by the survey authorities, or in the more popular sense. There is no evidence on the record of this case as to the meaning of the word 'survey' in the question put by the cross-examiner. It lay upon the prosecution to prove conclusively that the statement in question made by the accused was necessarily a false one. The prosecution has, to my mind, failed to discharge this onus and the accused cannot be convicted upon a dubious interpretation of the word survey,' The prosecution has, therefore, failed to prove that the statement in question was necessarily false.
4. As to the second statement, namely, "Before the Attestation Officer, I did not; say that the deed was a farzi one," its falsity rests entirely upon the judgment of the Assistant Settlement Officer, dated the 15th January 1919, Exhibit A, in the body of which at one place the following passage occurs:
Nirghin Mahton 1st party who says that the sale deed, dated the 2nd December 1913, in favour of Isri Lal is a farzi one and does not substantiate it by any evidence.
5. It is obvious that the above is not a record of the verbatim statement or a translation of the verbatim statement made by accused on an examination of him by the Attestation Officer, The Attestation Officer during his investigation might have put some question to the petitioner and he might have made some statement to him. It is not clear whether the above passage in the judgment of the Attestation Officer is quoted from the statement of the petitioner actually made before him, or it is a statement of the petitioner's case taken from the dispute list prepared by the Qanoongo five days before the judgment of the Attestation Officer. In any case, the recital in the judgment cannot certainly take the place of a record of the deposition of the petitioner. The Qanoongo admits that there is no record by the Attestation Officer that the petitioner was examined on solemn affirmation or that his deposition was explained to him. He is positive that the deposition was not signed by the accused. Apparently the Qanoongo himself does not remember, and cannot possibly be expected to remember, the exact statement made by the witness when he himself did not examine the petitioner or record his statement. He does not pretend to know the exact words in his examination-in-chief and it is clear that he has simply to rely upon the passage quoted above in the judgment of the Assistant Settlement Officer in order to prove what the statement of the petitioner was before the latter officer. This is clear from the following statement in his cross- examination on behalf of the petitioner:
Nirghin stated before the Attestation Officer that the sale-deed which he had executed in favour of Isri Lal was a farzi one.
6. It is the case of the prosecution that the word ' Isri" in the above statement is not that of the petitioner. According to the Qanoongo the above is a faithful record of what the petitioner stated before the Assistant Settlement Officer, for be does not say that the petitioner stated Misri Lal, and that the Assistant Settlement Officer by mistake recorded Isri Lal.' If the Qanoongo is correct, then the case of the prosecution has no legs to stand on, The Courts below, however, explain it away by holding that Isri Lal must be a mistake for 'Misri Lal.' Be that as it may, the record of the statement of the petitioner in the judgment is not very faithful. It does not purport at all to be a deposition of the petitioner, for the recital above is incomplete, It has not been proved by the best evidence in the case, namely, that of the Assistant Settlement Officer, who recorded it, and in a case of this kind it is not permissible to prove the statement by secondary evidence, such as that of the Qanoongo. What was stated by the witness to the Assistant Settlement Officer could only be proved by him or by a record of the deposition of the petitioner with all the formalities required by Jaw. The recital in the judgment cannot be accepted as evidence under Section 80 of the Evidence Act. Besides, the attention of the petitioner was not drawn to the statement in question while he was being cross-examined in the Court of the Deputy Magistrate Babu Dharikshan Singh, when he is supposed to have made a contrary statement, and no chance was given to him to explain it or to correct himself, for it was open to the petitioner to correct himself at any stage of his examination before Babu Dharikshan Singh. The learned Assistant Government Advocate concedes that the attention of the petitioner was not drawn to the previous statement said to have been made by him on the strength of which the petitioner has been convicted. It is obvious that the attention could not have been drawn to it because the dispute list itself was not in the hands of the cross-examiner at the time when the statement in question, the subject-matter in charge, was made by the accused. The tanaza and the decision of the Assistant Settlement Officer, Exhibit 2, were filed in the Court of the Deputy Magistrate on the 15th April 1919, while the witness was examined on the 4th April 1919. It has not, therefore, been proved in this case that the second statement also, namely, Before the Attestation Officer I did not say that the deed was a farzi one" made by the petitioner before Babu Dharikshan Singh is false.
7. The result is that the conviction of and the sentence passed against the petitioner must be set aside and the fine, if already paid, should be refunded.
8. It may not be out of place to allude here to the way in which the prosecution was started in this case. The Deputy Magistrate before whom the petitioner was examined refused to give sanction to Misri Lal to prosecute the petitioner for perjury on very strong grounds, namely, that there was no mala fide intention on the part of the petitioner in making the statement in question, that Misri Lal was a man of fighting temperament, and sanction was applied for to wreak vengeance on the petitioner who had ventured to depose against him and finally that the case was not a fit one in which sanction should be given. The learned Sessions Judge, to whom Misri Lal appealed against the order of the Magistrate refusing sanction, agreed with the Magistrate that it was not a fit case in which sanction should be given to the complainant, but he himself directed the prosecution of the accused under Section 476 of the Coda of Criminal Procedure. No doubt discretion is vested in the Sessions Judge to direct prosecution under Section 476 of the Code and this Court declined at that stage to interfere with that discretion. It is clear, however, that the learned Sessions Judge would have been well advised if he had used his powers sparingly in this case. When the trial Court, which had the advantage of seeing the petitioner in the box and was cognizant of the full facts in connection with the case in which the petitioner was examined, did not think it right to give sanction for prosecution, the learned Sessions Judge should have been chary in taking a different view unless the case was clearly made out against the petitioner. He had the record with him and had he fully considered the matter, he would not have perhaps himself started the prosecution in this case. There was at least a clear case of doubt as to whether the statement made by the accused was false and the benefit of the doubt should have been given to the petitioner and he should not have been put on his trial on an off chance of conviction.