STATE OF GUJARAT Vs. RAMESHBHAI PARMANAND SHAH

JUDGEMENT

(1.) This is an appeal by the State against the acquittal of the respondent Rameshbhai in Criminal Case No. 370 of 1962. The charge against the respondent was that on 12-1-61 in the course of the trial of Special Case No. 6/60 in the Court of Special Judge Ahmedabad against police constable Ramchandra he had stated in evidence as per the sheet annexed with the charge. The sheet annexed with the charge runs into two typed pages consisting of about 50 sentences. A charge of giving false evidence cannot comprise so many statements. A person can be charged for giving false evidence regarding a particular statement in his deposition. A charge which consists of an allegation that he made 100 false statements would amount to a charge of 100 offences. Under sec. 234 Cr. P.C. an accused person can be charged at one trial for any number of offences not exceeding three of the same kind committed with- in the space of 12 months whether in respect of the same person or not. Under sec. 235(1) Cr. P C. a person can be charged with and tried at one trial for every offences committed by the same person in the course of the same transaction. Sec. 235(1) Cr. P.C. does not put a limit of three to the number of offences which can be tried at one trial. But sec. 234 Cr. P.C. prescribes such a limit. The question arises whether in the course of the same transaction if more than three offences of the same kind are committed the case would fall under sec. 234 or sec. 235 of the Code. The view taken by the Bombay High Court in Chandra v. The State 53 Bom. L.R. 928 is that when a case falls under more than one exceptions contained in secs. 234 235 and 236 of the Code all the Condi- tions mentioned in all the sections must be satisfied. In that case at page 930 it was observed that if a case falls under more than one exception it must not infringe the provisions of any of the three sections. Here we have offences of the same kind committed on the same day by the same person and therefore the case would fall under sec. 234 of the Code. But all the statements were made in the same deposition and therefore they amount to one transaction and the case would therefore fall under sec. 235 of the Code. According to the view taken by Chagla C.J. the trial must not infringe the provisions of any of the three sections. In other words even if the offences are of the same kind and even if they form the same transaction they must not exceed three as provided in sec. 234 of the Code. But with great respects it is difficult to agree with this view. There is no reason to hold that five different offences committed in the same transaction can be tried at one trial but not five offences of the same kind. Illustration (d) to sec. 235(1) reads as follows :

(2.) Even if a trial is permitted we must remember that although it is for the Court to punish perjury committed by Panchas for the sake of proper administration of justice we cannot convict them of the offence of perjury merely because their evidence is contrary to that of a police officer because in that case no Panch will have the courage to differ from the police officer and to give evidence contrary to that of the police officer regarding the circumstances in which a Panchnama has been made. Accord- ing to the prosecution Ramesh was present at the house of P.S.I. Hirubhai at 11 A. M. on 5-12-59 and remained with the police upto about 2-30 P. M. on that day. But according to the defence witnesses some of whom are connected with the College accused Ramesh being also a College student accused Ramesh used to attend a rehearsal after College hours from 11-30 A. M. onwards on Saturdays. The defence witnesses do not speak of Satur- day 5-12-59 but speak of Saturdays generally. We are concerned with Saturday 5-12-59 and not Saturdays in general. The evidence of the defence witnesses regarding Saturdays generally therefore does not help the defence. The rest of the evidence of the defence refers to 6-12-59 while the prosecution against the Panchas refer to 5-12-59 and therefore the defence witnesses do not contradict the prosecution witnesses. But although the defence cannot rely on the defence witnesses to prove that the evidence is true the prosecution must prove that the statements are false and for this they rely on the evidence of Deepak and Police Sub Inspector Hiralal. Deepak is a person on whose allegation a trap was laid. This is not a case in which we should convict the accused person merely on the evi- dence of a police officer and his companion in a raid. This is so parti- cularly because there are several contradictions in the evidence of Deepak and the Police Sub Inspector. According to Deepak he gave the money to Police Constable Ramchandra in a cabin which is not the case of Police Sub Inspector Hirubhai. P. S. I. Hirubhai has stated that he stood at 50 to 60 feet from the cabin and they were standing in a position wherefrom they cannot see the transaction if it takes place in the cabin. In these circumstances it cannot be right to convict a person of perjury only on the evidence of P. S. I. Hirubhai and his companion Deepak.

(3.) The learned Government Pleader wanted me to refer to the facts that Police Constable Ramchandra was tried and convicted for the offence of taking a bribe from Deepak that his conviction was upheld in appeal that before launching the prosecution against the accused the High Court had given a notice to the accused and that the High Court had held an inquiry and had come to the conclusion that Ramesh had given false evidence. I must say that all this evidence is irrelevant. In spite of all that happened before the trial the Magistrate must come to his own opinion on the evidence led before him as to whether the person accused for the offence befor him is guilty or not. He cannot refer to the opinion held by any other Court in another proceeding and on different evidence.