BAJIRAO BALVANT Vs. EMPEROR

JUDGEMENT

(1.) NIYOGI , A.J.C. 1. Bajirao Balwant, Tulsiram Raoji, Nathu Raoji, Sheoram Januji, Motiram Saduji, Kisan Dattoo and Hayat Gulab, have been ordered by the Sessions Judge, Amraoti, to be prosecuted for the offence of perjury punishable under Section 193, I. P. C., by a complaint laid under Section 476, Criminal P. C. Each of them has filed a separate appeal and this judgment governs the disposal of them all. The aforesaid appellants were examined as witnesses in Sessions Trial No. 42/31 in which Ruprao, Kashirao, Rajaram and Sadasheo were tried on the charge of a conspiracy to commit murder and the actual commission of murder of Mt. Lilavati, who was a step-sister of Ruprao and Sadasheo. At the close of the trial the Public Prosecutor withdrew the case against Rajaram and Sadasheo who were therefore acquitted. Ruprao and Kashirao were adjudged guilty and sentenced to death. On appeal to this Court they were also acquitted on 23rd April 1932.

(2.) NEARLY four months after the decision by this Court the Public Prosecutor moved the Sessions Judge for action under Section 476, Criminal P. C. The learned Sessions Judge presumably thought that the case was of a nature which did not require any notice to the accused nor any preliminary inquiry before taking the step he did. The learned Sessions Judge in his order dated 20th August 1932 notices that each of these witnesses had admitted in the Sessions Court that his earlier statement was false, but as he made no attempt to reconcile the two conflicting statements he was held to have made them intentionally. He accordingly came to the conclusion that one of the two contradictory statements was false to the knowledge of each of the appellants. The learned Sessions Judge however omitted to address himself to an important consideration laid down in Section 476 that "it is expedient in the interests of justice that an inquiry should be made in this behalf." There is nothing in the order to indicate on what material the learned Sessions Judge formed his opinion that it was expedient in the interests of justice that such an inquiry should be made.

(3.) THE statements made by the witnesses before the Magistrate under Section 164, Criminal P. C., and before the committing Magistrate were undoubtedly contradictory to those made in the Sessions Court. The witnesses however did not leave the Court in doubt as to the truth of either, statement, but they boldly declared that, their first statement was false. So far as the witnesses themselves were concerned it could not be affirmed that they desired to mislead the Court by their previous statements which they had retracted. This Court, in order to satisfy itself about the justification for the retraction, subjected the retracted statements to judicial scrutiny and in the end it came to the conclusion that the retracted statements, as alleged by the witnesses, were false and untrustworthy. As observed by Hallifax, A. J. C., in Local Government v. Gambhir Bhujua AIR 1927 Nag 189, resort to the expedient of an alternative charge is only justified when it is difficult to establish the falsity of one of the two statements. Here there is no such difficulty because the prosecution has all along maintained that the retracted statements were true and that the subsequent statements made in the Sessions Court were false.