SAKHICHAND KANDU Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted under Section 182, I.P.C, and sentenced to two months rigorous imprisonment and a fine of Rs. 50. It is alleged that he gave the Sub-Inspector of Police an information which he knew or believed to be false intending the Sub-Inspector to make an investigation and so on. The substance of the petitioner's information was that during the preceding night his house had been broken into and a sendh cut in the wall connecting his main room with a small outer room, that access having been obtained in this manner to his main room his safe had been opened and some properties had been stolen. He said that he found the sendh and some clothes left behind; also that he suspected certain persons in connexion with the alleged crime. The Sub-Inspector made an investigation. He formed the opinion that the information had been false and he complained to a Magistrate of the offence under Section 182, as having been committed by the present petitioner. The Magistrate convicted the latter, and on appeal he was only able to obtain some modification of the sentence. In the grounds of the application to this Court some objections are taken to the regularity of the proceedings, but I find no substance in them. There is only one substantial point that arises in the case and that is what was the duty of the prosecution to prove in order to establish the ingredients necessary for conviction under Section 182 and has the prosecution been able to produce evidence on which a Court is entitled to act in founding a conviction? The ingredients of the offence punishable under Section 182 are stated in the section itself. They are not the same as the ingredients of the offence under Section 193 of giving false evidence or the ingredients of the offence under Section 211 of making a false charge. Under Section 211 the accused person must institute a proceeding against a person knowing that there is no just or lawful ground for such proceeding. Under Section 193 the accused must have made a statement which is false and which he either knows or believes to be false or does not believe to be true. Under Section 182 the accused must have given to a public servant information which he knows or believes to be false. It has been explained in Rayan Hutti V/s. Emperor (1903) 26 Mad 640: To constitute an offence under that section ( Section 182), it must be shown that the person giving the information knew or believed it to be false or that the circumstances in which the information was given were such that the only reasonable inference is that the person giving the information knew or believed it to be false. The fact that the information is shown to be false does not cast upon the party who is charged with an offence under this section, the burden of showing that when he made it he believed it to be true. The prosecution must make out that the circumstances were such that the only reasonable inference was that he must have known or believed it to be false.

(2.) Now as to the falsity of the information given, the prosecution has not adduced any direct evidence. There is no witness to depose that on the morning of 24 April 1936, the petitioner Sakhichand did not find a sendh cut in the wall of his room. There is no evidence that he did not find that the small outer room had been opened; there is no evidence that he did not find the clothes scattered on the floor; and there is no evidence that he did not miss money which had been in his safe. On the defence side the accused naturally could not produce any witness who had seen the sendh being cut or theft being committed or had seen any of the thieves; but he examined his own brother to prove that on getting up in the morning the petitioner told him and showed him what he had found. The Magistrate has regarded the testimony of this- defence witness as worthless because he is accused's brother; but there is no evidence on which it can be said that this part of the witness's testimony is not true. The conviction has been based by the Courts below on their view that the story told by Sakhichand was so improbable that they could not believe it to be true. A number of reasons are given for holding it to be improbable. The one which has weighed most with the Courts below appears to be the size of the sendh. The Sub-Inspector who saw it was of opinion that no man could go through so small a hole. Now that is a matter of opinion. There is evidence that some experiments were made; but they all appear to have been made by adults, and the failure of an adult to go through the hole does not show that a boy could not do so Again the failure of two: or three of the accused's neighbours, presumably respectable persons, to go through the hole does not show that an expert criminal could not have the skill to push his body through a smaller aperture than a mere amateur. Those who have attended circus performances are familiar with a trick shown by performers of putting the whole body through the opening of a surprisingly small ring. Therefore, the opinion of the Sub-Inspector that it was unlikely that any one should be able to get through this hole is an inconclusive matter.

(3.) Another point taken was that it was improbable that a thief should be able to find and use the key of the safe. In this connexion the Magistrate and the Sessions Judge hardly appear to have noticed that Sakhichand had told the Sub-Inspector that he had seen Paltan Gonr at his place a day or two before and there was a possibility that Paltan Gonr had used that opportunity to reconnoiter the position. There is no evidence that Paltan Gonr did not visit the house of Sakhichand during the two or three days before the alleged burglary. Paltan Gonr was called as a prosecution witness but no questions were put to him. He has not denied that he visited the house of Sakhichand. He has not even denied that he committed a burglary there. Next it is said to be improbable that the thieves should go away leaving some valuable clothes behind. This is pure speculation. The thieves might have left in haste in consequence of some fancied alarm. Fourthly, it is said that the sendh was made in an improbable position. Apart from the fact that this is also purely speculative reasoning, it does not seem to me to be at all improbable that the place referred to should be selected by thieves for the making of a sendh. The main room is an east-facing room and a smaller room adjoins it on the west with a door to the north. The thieves were able to enter that smaller room by opening the door. Once inside it was easy for them to remain unobserved while making the hole in the wall of the larger room. This security from observation could not have been obtained by them while making a sendh from the lane on the south or from any of the external walls of the complainant's house; so that this point, if examined, really tells in favour of the probability of Sakhichand's information being true rather than against it.