Emperor vs Sultansha Sidisha

John Beaumont, Kt., C.J.—This is a reference made by the District Magistrate of Broach and Panch-Mahals inviting us to enhance the sentence. It appears that the present accused made a statement u/s 164 of the Criminal Procedure Code, and at the trial his evidence contradicted that statement. He was, therefore, charged u/s 193 of the Indian Penal Code with committing perjury. I must confess that I should have myself grave doubt whether a statement made u/s 164 could possibly be regarded as part of the same transaction as a statement made at the trial so as to justify an alternative charge u/s 236 of the Criminal Procedure Code. But a full bench of this Court in Emperor v. Purshottam Ishwar 1920 ILR 45 Bom. 834: s.c. 23,Bom. L.R. 1, F.B decided that question against the accused, and I think on this application we must follow that decision. But the conviction being in the alternative, we do not know whether the statement made u/s 164 was false, or whether the statement made at the trial was false. It seems to me that, in considering sentence, it makes a great deal of difference which of those two statements was false, and if the prosecution ask for a heavy sentence, they must prove which statement was false. If the statement made u/s 164 was false, no doubt such a false statement ought not to have been made, but one knows that in the initial stage of proceedings it is possible that influence may be brought to bear on a witness, and if a witness does make a false statement u/s 164, it is surely very much to his credit that he retracts that false statement at the trial, and does not by giving false evidence at the trial secure a wrong conviction. If in a case of that sort we are going to impose a heavy penalty for making a false statement u/s 164, we are strongly discouraging witnesses from resiling from a false position, and I am certainly not prepared to do that. If it had been proved that it was the statement in the Sessions Court which was false, that would have been a much more serious matter.

In my opinion, therefore, there is no case for enhancing the sentence.

Divatia J.

I agree.