THE QUEEN Vs. MAHOMED HOOMAYOON SHAW

JUDGEMENT

(1.) I think it sufficient to say upon this reference that, in my opinion, the conviction arrived at by the jury upon two charges framed in the alternative form, according to the model given in Sch. iii of the Criminal Procedure Code, is good in law. It seems to me that the two statements embodied in each charge, which were made by this prisoner, must be taken together, and that when so taken together, they comprehend the specific offence of intentionally giving false evidence in a stage of a judicial proceeding. It is possible that each of the statements, and not one of them merely, was in itself false, and that taken singly, each might have afforded good ground for a distinct charge of an offence under s. 193 of the Penal Code. But this course was not followed; the simpler course allowed by the law was adopted of framing a charge containing two contradictory statements of such a nature that the two, when taken in combination, disclosed the specific offence of intentionally giving false evidence. It must be matter of evidence whether the contradictory statements contained in the charge are per se so irreconcilable that one of them is necessarily false, and also that the prisoner in making them intentionally spoke falsely in regard to one of them. This it is the province of the jury or Court to determine, and, in the present instance, the jury had no difficulty in arriving at such a determination. It seems clear that the new Code of Criminal Procedure has expressly contemplated, and indeed provided for, this result. When s. 442 provides that the charge may be in the form given in the 3rd Schedule, and when the 3rd Schedule gives an alternative form of charge in these words, - -"That you, on or about (such a date and place), in the course of the inquiry into (such a matter) and before (such an officer), stated in evidence (such and such words); and that you, on or about (such another date and place), in the course of the trial of (so and so), before (such an officer), stated in evidence (such and such other words), one of which statements you either knew or believed to be false, or did not believe to be true, and thereby committed an offence punishable under s. 193 of the Indian Penal Code," I cannot but hold that, if those statements are radically contradictory one of the other, so that the contradiction involves of necessity a falsehood, and it be proved that the deponent uttered them, and that he by so doing deliberately intended to speak falsely, the substantive offence of intentionally giving false evidence in a stage of a judicial proceeding is thereby established, and no need exists to determine by distinct evidence which one of the two statements is absolutely false. No doubt, strictly speaking, this form of charge is not an alternative charge in the sense contemplated by s. 455 of the Criminal Procedure Code. This is not a case where two or more offences are disclosed by the single act or set of acts committed, or rather alleged to have been committed, by the accused, and it is doubtful what particular offence in law can be found on the facts proved; but the alternative consists in this, that of two statements made by the accused one or other of them, it does not matter which, inasmuch as the two involve an absolute contradiction, must be of such a nature that the person making it either knew or believed it to be false, or did not believe it to be true. It is, as already said, expressly to meet this particular kind of offence that Sch. iii contains a specific form described as a form for "alternative charges on s. 193" of the Indian Penal Code. If it were intended that the jury or Court should find which of the two statements set out in the charge was false, not only would this form be cumbrous and unmeaning as an alternative form, but the force of the two contradictory statements in combination would be entirely lost, so as to enable such jury or Court to determine that the accused knew or believed one of the statements to be false, or did not believe it to be true, and that he thereby committed an offence under s. 193 of the Indian Penal Code.

(2.) I am of opinion that a conviction in the form in which this prisoner has been convicted upon a charge in the same form is good in law.

(3.) It appears to me that this is a case to which the 2nd clause of s. 461 has no application. The offence of which the prisoner has been convicted is giving false evidence, and the Sec. of the Penal Code under which he has been convicted is s. 193. There is no necessity, therefore, for resorting to the alternative given in the 2nd clause of s. 461, and it need not be further considered.