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6. Coming to the second contention I find that it is quite immaterial that the two contradictory statements were made in the course of one deposition in one trial. If the first statement is false, the applicant committed the offence of perjury as soon as he made it. Whether he made it deliberately and whether he knew or believed it to be false or did not believe it to be true is to be seen with reference to the time at which he made it. If the requirements of Section 191 are fulfilled, he committed the offence of perjury as soon as he made it. The completion of the offence does not remain in abeyance for a short time in order to give him an opportunity of repenting and correcting himself. It does not remain in abeyance so long as the trial is not over or so long as he has not been cross-examined under Section 256 of the Code or so long as he has an opportunity of being recalled and making the correct statement later. What he does subsequently has absolutely no bearing on the offence already committed by him. The offence is not purged or wiped off by subsequent repentance or retraction or correction. Of course, on account of the subsequent repentance and admission of mistake, the Court may say that he had not made the earlier statement deliberately knowing or believing it to be false or not believing it to be true; but that would mean that he had not committed the offence at all by making the earlier statement and not that he had committed it and the commission is purged or wiped off by the subsequent repentance and confession. Section 191 does not take into consideration the fact that the false statement was, subsequently, in the same deposition or in the same trial, admitted to be incorrect and replaced by the correct statement or that the deposition was not finished before the accused corrected himself.
Wilson, J. concurring with him, said on p. 946:
"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."
7. No question of 'locus paenitentiae1 should arise when an accused is prosecuted for making two contradictory statements. It is impossible to lay down that a witness, who deliberately makes a false statement, is entitled to purge the offence by repentance and retraction. The offence of perjury once committed cannot be purged.
If the previous statement is made deliberately with intention to deceive the Court then no amount of repentance will purge the offence. The question whether it is expedient in the interests of justice to prosecute him or not is at the discretion of the Court and it may decide not to prosecute him. But if he is prosecuted and all the ingredients of the offence are proved, the trying Court has no discretion in the matter and is bound to convict him. It cannot acquit him on the ground of repentance. There is no reason why a perjurer should be allowed 'locus paenitentiae' and not any other offender. There are many offences besides that of perjury which are punished for doing a certain act with a dishonest intention even if the dishonest intention has not been carried out. If persons committing those offences are not entitled to 'locus paenitentiae', there is no justification for saying that a perjurer is entitled to it.
Moreover, it cannot be assumed that the previous statement was false and that the subsequent statement was not only correct but also made out of repentance. It may very well be that the previous statement was correct and the subsequent statement was false and the doctrine of 'locus paenitentiae' cannot be blindly applied to such a case. In the instant case there was absolutely nothing to suggest that the previous statement was false. The applicant did not himself allege that it was false. It is quite likely, as actually found by the learned Magistrate, that the subsequent statement was false.