TARACHAND MARWADI Vs. EMPEROR

JUDGEMENT

(1.) THE prosecution of the appellant Tarachand for an offence under Section 193, I.P.C., has been ordered by the District Judge, Chhindwara, on llth July 1928. Neither in the order in question, nor in the complaint sent to the Magistrate of the First Class, Chhindwara, was the particular section of the Indian Penal Code concerned mentioned, but the offence for which the appellant was ordered to be prosecuted, was apparently one under Section 193, or that section read with Section 511, I.P.C.

(2.) IT is unnecessary here to repeat in any detail the facts of the case. It will suffice to say that, in the year 1916, the question of the validity of the adoption of one Uderam was concerned, and the present appellant, who is an influential and old member of the community concerned, gave evidence testifying to the existence and validity of an orphan-adoption in the caste. Curiously enough, in the suit, out of which the present proceedings arose, the validity of the adoption of the same Uderam was again in question and, in his examination-in-chief in the Court of the District Judge, the appellant's evidence was of a kind which was to some extent prima facie contradictory of his earlier statement in 1916. When, in cross-examination, however, that statement was brought to his notice, the appellant then more or less resiled from the position he had taken up in his examination-in-chief and admitted the existence of the custom of orphan-adoption as well as its validity; he, in fact, went back, to all intents and purposes, to the position he had taken in 1916. The learned District Judge was of opinion that a prosecutions for perjury prima facie lay, for alleged contradictions between the appellant's deposition of 1916 and his examination-in-chief in the present case, and for contradictions existing in his later deposition between the examination-in-chief and the cross-examination.

(3.) IT will be convenient, first of all, to deal with the deposition of the appellant, as given in the District Judge's Court, There can be little doubt indeed but that, in the initial part of that deposition, the appellant was anxious to suggest, as regards the custom of orphan adoption in the caste concerned, that the practice in question did not exist, or at least that he was unaware of it. That his action in this connexion was dishonourable and possibly perverse cannot be doubted for a moment. At the same time, even in the examination-in-chief, it was obvious that the witness was only prepared to make a half-hearted attempt in support of the plea he was called on to support, because, even in that exa-mination-in-chief, he explicitly stated that he was not prepared to say that an orphan-adoption was invalid; all the length he would go, was to say that the caste opinion was in favour of its in-validity. However this may be, I fully agree with the remarks of Hallifax, A.J.C., in para. 6 of his judgment in Local Government v. Gambhir Bhujua A.I.R. 1927 Nag. 189, quoted above, and I am of opinion that the deposition must be taken as a whole and, in the cross-examination, it is obvious that the appellant fully retracted the statement in the examination-in-chief and went back to the position he had taken in 1916. It not infrequently occurs in criminal and civil Courts that a witness, who begins by making, or attempting to make a false statement, is cautioned by the Magistrate or Judge concerned and is informed of circumstances which seem to him to establish the falsehood of that statement; it frequently ensues that the witness, after such caution, corrects his earlier statement and proceeds, to put it bluntly, to tell the truth. I have never known of any case, where in such circumstances, a Judge or Magistrate has thought it desirable to prosecute such a witness either for perjury or for an attempt to commit that offence. This is precisely what we have occurring in the present case, the only difference being that the witness proceeded to tell the truth, not as the result of a caution from the Judge but on his being confronted with his earlier statement of 1916. I myself am of opinion that, in such circumstances, if it be true that a very technical offence, attempt to commit perjury, has been committed by such a witness, it is inadvisable and perhaps unreasonable to order his prosecution. The very gist of an offence of perjury is the fact that it amounts to an attempt to mislead and deceive the Court. For the offences to be complete, the deponent must, in my opinion, leave the Court under the lie with which he began by deceiving it.