Queen-Empress vs Samiappa and Others

In Calendar Case No. 2 of 1889 on the file of the District Magistrate of Bellary, one Murtinjayalu, a classifier in the Revenue Settlement

Department, was convicted of an attempt to receive a bribe from a body of raiyats at the rate of four annas an acre of their holdings and was

sentenced to two years'' rigorous imprisonment. In April last he complained to the District Magistrate against ten raiyats upon whose evidence he

was convicted, and charged them with having conspired to bribe him. The District Magistrate transferred the complaint for disposal to the Deputy

Magistrate, who, after examining the complainant, issued process. In his examination Murtinjayalu denied that he attempted to take a bribe, whilst

he stated that the accused admitted having conspired to bribe him in the evidence which they gave in Calendar Case No. 2 of 1889. Seeing that

the complaint was in its nature vindictive, the District Magistrate asked the High Court to interfere in revision. In Queen-Empress v. Sunnappa

Criminal Revision Case No. 267 of 1890, unreported a divisional bench of this Court considered that there was nothing illegal on the part of the

Divisional Magistrate in entertaining the complaint and issuing process, and that it was premature for them as the case was sub judice to express

any opinion on the other questions discussed by the District Magistrate in his letter of reference. The Deputy Magistrate then tried the accused,

discharged the fifth, seventh, eighth and ninth, convicted the first, second, third, fourth, sixth and tenth accused under Sections 116 and 161 Indian

Penal Code, and sentenced the third and fourth to two months'' simple imprisonment and the others to a fine of Rs. 25 each. On appeal the

Sessions Judge acquitted the third and fourth accused. Both the District Magistrate and the Judge agree in thinking that the strength of the case for

the prosecution depends mainly on the question whether the self-incriminating depositions given by the accused are receivable in evidence. The

District Magistrate considers that they are not admissible under the proviso of Section 132

[Section 132:--A witness shall not be excused from answering

Witness not excused any question as to any matter relevant to the matter in issue in

from answering on ground any suit or in any civil or criminal proceeding, upon the

that answer will crimi- ground that the answer to such question will criminate, or may

nate. tend, directly or indirectly, to criminate such witness, or that

it will expose or tend, directly or indirectly, to expose such

witness to a penalty or forfectly of any kind.

Provided that no such answer, which a witnesss shall be compelled to give, shall subject

him to any arrest or prosecution, or be proved against him in

Proviso. any criminal proceeding, except a prosecution, for giving false

evidence by such answer.]

of the Evidence Act, though the accused had not claimed an indemnity before criminating themselves. He questions the correctness of the decision

of the majority of this Court in The Queen v. Gopal Doss ILR 3 Mad. 271 and drawing attention to the cases of Manjaya v. Sesha Shetti ILR 11

Mad. 477 and Bhikumber Singh v. Becharam Sircar ILR 15 Cal. 264 refers the convictions of the accused to this Court for revision so far as they

have not been set aside by the Sessions Judge. As regards the acquittal of the third and fourth accused, the District Magistrate thinks that the

Sessions Judge has overlooked Section 80 of the Evidence Act, and that the acquittal, if supported, can only be supported for the reason

mentioned by him, viz., that the self-incriminating depositions of the accused in Calendar Case No. 2 of 1889 are not legal evidence. All that was

decided in Manjaya v. Sesha Shetti ILR 11 Mad. 477 was that a witness was not liable to be convicted of defamation on a statement made by him

as a witness, and that if the statement was false the remedy was by indictment for perjury. Again, in the case of Bhikumber Singh v. Becharam

Sircar ILR 15 Cal. 264 it was only decided that no suit would lie for damages on account of slander uttered by a witness whilst under examination

in a judicial proceeding. There is no real conflict between these decisions and the decision in The Queen v. Gopal Doss ILR 3 Mad. 271 and we

feel, therefore, bound to follow it. As observed by the District Magistrate, the Sessions Judge was clearly in error in holding that the depositions

given by the third and fourth accused were not legal evidence against them, and that it was not one of the presumptions arising u/s 80 of the

Evidence Act that the witnesses did actually say what was recorded. Section 80 provides, inter alia, that the Court shall presume that the evidence

was duly taken, and it could not be considered to be duly taken if it did not contain what the witness actually stated. Having regard to the decision

in The Queen v. Gopal Doss ILR 3 Mad. 271 and to the mistake made by the Sessions Judge in declining to act upon Section 80 of the Evidence

Act, we think that the acquittal of the third and fourth accused was wrong. As the sentence of imprisonment has been suffered in part, we will

merely restore the conviction and treat the sentence that has been undergone as sufficient.