1. The accused, Bankatram Lachiram, having been convicted under section 193 of the Indian Penal Code of giving false evidence in a judicial proceeding, and sentenced to imprisonment and a fine, has applied to this Court in revision. In consequence, however, of a division in opinion on the part of the Judges composing the Bench, before whom the application was heard, the case has been laid before me as provided by section 439 of the Criminal Procedure Code.

2. The charge is based on the allegation that in two depositions, one given on the 3rd of December, 1896, the other on the 23rd of March, 1901, the accused has made contradictory statements, and the case of the prosecution is that, on that ground, though it cannot be proved which of these alleged contradictory statements was false, the accused's conviction should be upheld.

3. To convict an accused of giving false evidence it is necessary to show not only that he has made a statement which is false, but also that he either knew or believed it to be false or did not believe it to be true.

4. It has been said by very high authority, and the remark has manifest application to a case where, as in the present, it is sought to establish guilt solely on contradictory statements, that "although you may believe that on the one or the other occasion the prisoner swore what was not true, it is not a necessary consequence that he committed perjury; for there are cases in which a person might very honestly and conscientiously swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time, be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time Per Holroyd, J., in R. v. Jackson (1823) 1 Lewin C.C. 270."

5. It is clear therefore that one must approach a case resting merely on supposed contradictions with the greatest caution, and more particularly where, as here, a number of years intervenes between the two statements. In this case there is an additional occasion for caution in the motive and origin of this prosecution as described by the Magistrate, who says "complainant's conduct in the case could not but attract notice. He is an illiterate and ignorant peasant and seems evidently a tool in the hands of designing persons ill-disposed to the accused. The present case seems to be one got up from spite and accused well entrapped, unconscious of the dangerous net laid out for him".

6. The accused, it is said, belongs to the Marwadi class; but whatever he may be, he is entitled to demand that he shall only be convicted of an offence under the Penal Code on legal evidence. What then are the proofs on which his conviction rests

7. The two statements are set out in the charge in the following terms:--

First statement.--"Dhondiram lives separate from me. I have only given him the cloth-shop. There is no partition. All the ancestral lands are in my possession and I manage them."

Second statement.--"I am plaintiff's older brother" (plaintiff is Dhondiram). "We live separate. It is 13 or 14 years back our partition took place. Myself and Dhondiram divided in Shake 1808 or 1809. Dhondiram was aged 12 or 13. Dhondiram manages his estate since partition. It is not true what is stated in my deposition in case No. 429 of 1895 that only the cloth-shop was given to Dhondiram; that no share was given to him and that all the immovable property is in my possession; that the land in dispute has come to my share." "That it is true what I have stated that Dhondiram separated before 12 or 13 years and all division of the property was made."

8. In the opinion of both the lower Courts these statements were so contradictory as to be incapable of reasonable reconciliation.

9. It is common ground that in the second statement the accused made out that there had been a partition between him and his brother Dhondiram. Turning then to the first statement as set forth in the charge, we find the following words placed in the accused's mouth: "there is no partition." Here then, says the prosecution, is an irreconcilable contradiction, here are the undoubted proofs of guilt.

10. But to judge of the true meaning of any single phrase it is necessary to see what the accused said in the rest of his deposition; for perhaps there may be found that which will throw a fresh light on the words which form the subject of the charge. Yet I cannot find in the judgment of either of the lower Courts any trace of such an investigation: I say this because I fail to see how the rest of the depositions could have been read without its at once becoming apparent that an erroneous construction had been placed on the accused's testimony in the earlier deposition.

11. Now going back but a few sentences earlier in the first statement than those on which the prosecution rely I find this is what the accused said on that occasion:

I became divided from Dhondiram. There was no document made with respect to partition then. My brother Shivnarayan became divided about ten years ago. On that occasion also there was no document made with respect to partition. No memos., &c., were made rotating to the property. Dhondiram lives separate from me. I have only given him a cloth-shop. No divisions (i.e., allotments of shares) have been made. Rama Dhagya is my debtor.

Cross-examination: I myself am in possession of all ancestral lands and manage them.

12. This translation is approved on both sides and contains the so-called incriminating passage.

13. This then is the deposition from which, according to the Sessions Judge, it is evident that the accused "intended it to be believed that no partition of property had taken place between himself and his brother Dhondiram."

14. So far from the deposition evincing the intention imputed to it, in my opinion it points emphatically the other way: there is a distinct assertion of division from Dhondiram and of division from Shivnarayan, followed by the statement that Dhondiram lives separate from him. Here is the clearest statement of a partition. While the statement ascribed to the accused, "There is no partition," manifestly does not bear the meaning that has been placed on it: the proper rendering is "No divisions (i.e., allotments of shares) have been made," and I say this not only because that has the approval of the Court interpreter, but also because it is obviously demanded by the context.

15. The meaning of the passage taken as a whole is obvious; it is that there has been a division, that is a partition, though there is no document evidencing it, and no partition by metes and bounds has been effected. Whether this statement is true or false is not shown, and in the circumstances is immaterial: the point to be kept in mind is that the conviction of the accused proceeds wholly upon the assumption that there is in this deposition a negation of partition, which is contradictory of the assertion of partition contained in the second deposition. I have shown that there is no warrant for the assumption, and with it the justification of the conviction so far as it rests on it completely disappears. The Magistrate seems to have seen a contradiction between the statements "All the ancestral lands are in my possession and I manage them" on the one hand and what the accused has stated in his second deposition on the other. It therefore becomes necessary to examine the second deposition, and when that is done it will be seen that there are omitted from the charge portions of the deposition which materially affect those included in it. Thus we have this sentence "It is 13 or 14 years back our partition took place": this might be taken to indicate a complete partition by metes and bounds, but the next sentence, which is omitted from the charge, shows this is not so, for there it is said "Three garden lands and two debtors, Jahagirdar and Deshpande, are left joint," showing that there was not a complete partition.

16. Then I feel bound to refer to another portion of the deposition for the purpose of showing the unsatisfactory materials on which the conviction is based. It runs as follows:-- "What is stated above, viz., that it is 12 or 13 years since Dhondiram was separated and all was partitioned out to him is true": now the accused never had said this; he had made the statement to which I have already referred as pointing to an incomplete partition; yet this is a part of that on which the conviction was based. The deposition then proceeds as follows:-- "Only the cloth-shop was given to Dhondiram (on partition). What is written in my deposition in suit No. 429 of 1895, that no partition took place, that all immoveable estate is in my possession is not true."

17. But here again the accused had never said in his earlier deposition what is here ascribed to him; I have already pointed out that so far from alleging that no partition took place, he distinctly says that he became divided both from Dhondiram and from Shivnarayan: similarly he never said in the first deposition "All immovable estate is in my possession": what he did say is "I myself am in possession of all ancestral lands and manage them". I notice that in one of the judgments it is said that no importance is attached to this: I cannot understand this: it appears to me completely to overlook the fact that besides the lands there was a house and also that in the first deposition the cloth-shop was stated to have been given to Dhondiram, so that while it might have been true that the ancestral lands were in the accused's possession, it would not have been true to say that all the immovable property was in his possession; and thus there is an obvious and most material distinction between the two statements. That this was a distinction present to the accused's mind is apparent from the second deposition where he says, "Three garden lands...are left joint. House, &c., is not joint." Here we find a clear distinction drawn between the lands on the one hand and the house on the other, though they both were immovable property. It will be apparent from what I have here said that the second deposition was either recorded with great carelessness, or the examination of which it purports to be a record was conducted on lines that never should have been permitted, in that it ascribed to the witness prior statements he had not made. A more unsatisfactory foundation for a charge of giving false evidence there could not be; but apart from this I am clear there are no such contradictions as can form the legal basis of a conviction.

18. Had the whole of the depositions been examined with care and not merely the statements contained in the charge, I cannot believe that the lower Courts would have come to the conclusion they did, and I have not the slightest hesitation in holding that a conviction on these materials was an error of law.

19. In the opinion however of one of the learned Judges from whom this reference is made this Court should decline to interfere, and in arriving at this view he has said "Looking to the evidence before the Court of First Instance already discussed in the Magistrate's judgment, it is impossible to say that this issue was decided merely upon the contradiction between the impugned statements, or to say that there is not evidence to sustain the Magistrate's finding". Now this additional evidence consists of Exhibits L, M, N and O. But it is clear that so far as the Magistrate rested his decision on the two first of these Exhibits he committed an error of law: they were, I am told, statements by the accused's brothers, not made on oath in this case, and therefore obviously inadmissible. If, therefore, the Magistrate relied on them, that of itself would vitiate his judgment.

20. The other two Exhibits were made by the accused, but the prosecution, when challenged, could not suggest that they had any real bearing on the case and at most would only show that the accused in other matters had been untruthful. It requires no citation of authority to show that their admission for such a purpose would be highly improper. The result therefore is this that so far as the Magistrate did not rely merely upon the contradiction he committed an additional error.

21. But the suggestion that this Court should not interfere calls for further notice, as it rests on a train of reasoning which I cannot pass without remark, though I conceive it to be inapplicable to the circumstances of this case.

22. The powers of the High Court are defined by the Code of Criminal Procedure: and it is there that we must go to learn what its powers are. Section 435 empowers the High Court to call for and examine the record of any proceeding before any Criminal Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court.

23. Then by Section 439 it is provided that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise conies to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 195, 423, 426, 427 and 428 or on a Court by section 338.

24. The Legislature could not have expressed itself with greater clearness, but it has been suggested that the Courts have imposed on the plain terms of these sections a gloss which narrows the scope of the discretion vested in the High Courts.

25. If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion, and whenever it is argued that judicial decision has deprived us of the power that the Legislature has given us I recall the words of an eminent English Judge. "I desire to repeat," he said, "what I have said before, that this controlling power of the Court is a discretionary power, and it must be exercised with regard to all the circumstances of each particular case, anxious attention being given to the said circumstances, which vary greatly. For myself I say emphatically that this discretion ought not to be crystallized as it would become in course of time by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion, which the Legislature has committed to them, This discretion, like all other judicial discretions, ought as far as practicable to be left untrammeled and free so as to be fairly exercised according to the exigencies of each case."

26. These weighty words appear to me to breathe the spirit that should guide us in the exercise of our discretionary powers of revision. This may perhaps increase our responsibilities and add to our labours, but no one would shirk the one or grudge the other.

27. The exigencies of the case now in hand emphatically call for the interference of this Court, and my opinion is that the conviction and the, sentence should be set aside and the accused acquitted, and the fine (if paid) refunded.

28. Though at one time I thought otherwise, on further reflection I think the decision of the Full Bench of this Court consisting of Sir Charles Sargent, C.J., and Telang, Candy and Fulton, JJ., in Queen-Empress v. Mugapa (1893) 18 Bom. 377 does not cover this case.