Bucknill, J.:— This was an application made in Criminal Revisional Jurisdiction by two men, one known as Lalmoni Nonia and the other known as Gangabishun. These men were convicted by a Magistrate of the 1st class of Chapra of an offence against the provisions of section 198, Indian Penal Code. They were tried separately, each, was sentenced to two sears' rigorous imprisonment; the circumstances in each of their cases were identical and when both of them appealed to the Sessions Judge of. Saran the appeals were dealt with simultaneously. The learned Sessions Judge on the 11th of October, 1922, upheld the decision which had been come to by the Magistrate of Chapra on the 19th of September.

2. Now, the circumstances which gave rise to this affair are extremely simple, although there has been a good deal of discrepancy of view held in connection with the matters out of which have come these trials and other litigation connected with them. The position may very shortly be put as follows:—

In April 1916 a man called Ram Lagan Nonia of Lakhnoura was killed; and investigation was held and a certain Durga Prasad was implicated in the matter by the deceased's brothers named Tapai and Bujhawan. Now, apparently, Durga Prasad was placed upon his trial in connection with this homicide together with other persons, but he was discharged in the course of the preliminary enquiry by virtue of the provisious of section 209 of the Cr PC. Durga Prasad then brought a suit claiming damages for malicious prosecution against the deceasad's brothers Tapsi and Bujhawan. He succeeded in obtaining judgment in his favour for nearly Rs. 5,000 on the 80th April, 1919. In that suit he seems to have proved to the satisfaction of the Tribunal before which his case came, that he was not present when the homicide took place and that he was is fact lying on a bed of sickness at Banares, a considerable distance from the place where this crime is alleged to have been committed. Now, in the course of this suit the two applicants who are now before me and who, it is said, are relatives of the deceased, adduced some evidence on behalf of the defendants and in their testimony they made certain statements as a consequence of which Durga Prasad applied for sanction to prosecute them both for an offence with which they were eventually convicted, namely, of perjury is contravention of the provisions of section 193, Indian Penal Code. This sanction was granted on 3rd July, 1919; but the trial of these two men was stayed until after an appeal, which had been filed in the suit for damages for malicious prosecution, had been by this Court decided. The result of that appeal was that the decision of the Sub-ordinate Judge was affirmed, and then the prosecution, trial and conviction of these two applicants now before me proceeded in the manner which I have already indicated.

3. Now, the Magistrate, by whom these two persons were convicted, and the Sessions Judge, who confirmed his sentence, have, I must point out at the outset, taken an entirely different view as to the alibi put forward by Durga Prasad to that which had been taken by the Sub-ordinate Judge before whom the suit for damages for malicious prosecution had been preferred and tried. The Magistrate says that,

“in spite of the oral as well as documentary evidence I do not see my way to accept this version of the prosecution”.

4. When the Magistrate makes use of the words “this version of the prosecution” he refers to the endeavour made by the prosecution to show that the evidence which was given by the two applicants before me in the suit brought by Durga Prasad for damages for malicious prosecution was false, because Durga Prasad was at the date of the murder lying ill of dysentery at Benares. The learned Sessions Judge elaborates the same theme and appears also to be clearly of the opinion that Durga Prasad's alibi was virtually incapable of credence. It is remarkable that he states that in his view the alibi is a very suspicious one. I mention this feature before I discuss the facts upon which the prosecution has here founded its case other than in connection with the alibi, because I think that it indicates in a very marked degree the considerable uncertainty which the circumstances in this case have introduced into the minds of different Tribunals who had to deal with it; whilst the Sub-ordinate Judge in the Civil Court was satisfied of the truth of Durga Prasad's alibi, and whilst apparently on the appeal from that decision in this Court the question of alibi was not seriously contested (it may have been because it really appeared to be one purely of fact), yet both the Magistrate, who tried this case of perjury, and the learned Sessions Judge, who heard the appeal from his decision, came to precisely a contrary opinion. Having said that much and having pointed out that the evidence which was given in the murder trial, was in the year 1916, whilst that in the damage suit was in 1919, and that in the present prosecution for perjury in 1922, I will pass now to the exact details as to the nature of the charge which has been brought against these two applicants and in connection with which they have been convicted. I think that, as the two cases are substantially identical, it is only necessary that I should deal fully with one.

5. Now, when giving evidence in 1919 on behalf of the defendants in the suit brought against them for malicious prosecution, the first applicant here, Lalmoni Mahton or as he is called here Nonia, is stated to have deposed as follows:

“I have seen Ram Lagan's Baharghara. My house is in west of it, at a distance of 20 laggis. It was on Saturday night, the day of murder, that I was sleeping at my darwnza when a pahar night was remaining, Sheoprasad shouted aloud that Gartali was cutting Ram Lagan. Then I went there running. I met in the way Darga Prasad, Gurtaii Sain, Aliman, and Sohawan. They were running away. I went to wherefrom Sheoprasad was shouting. I found there Sheoprasad, Tapsi and Gangabishun. Sheoprasad was telling Tapsi (and I had also enquired) that Aliman and Sohawan were pressing Ram Lagan with lathi anil that Gurtali had killed him with garasi and that they were running away and that Durga Prasad was standing. After hearing it, I came back to my house. I was examined before the Polios after 2 or 3 days of occurrence;”

and in cross-examination Lalmoni says:

“I had met Durga Prasad and others at a distance of 10 laggis from the place of murder. I had asked them why were they running away. Upon this Gurtali Sain scolded me and said, ‘keep quiet’ (Chup raho). They were a laggi from me, when I met them. They had not their faces canceled … I had not made this statement before the Magistrate on (querry, or) the Police, viz., that I had met Durga, Gurtali, Aliman and Sohawan in way. As no one had questioned me, I did not make that statement.”

6. Gangabishun says substantially the same thing. He deposed on the same day as Lalmoni's deposition was taken, that is to say, on April the 22nd, 1919:—

“I know about Sam Lagan's murder. It was on Saturday (night), when a pahar night was remaining that Sheoprasad shouted that Gurtali Sain was cutting Ram Lagan. I beard this about at my darwaza, which was a rassi from the place of occurrence. I ran from my place and came to the place of murder. I saw Durga Prasad, Gurtali, Aliman and Sohwan running away. I recognised them. Sheoprasad on enquiry by Tapsi said that Aliman and Sohawan were pressing down Rim Lagan with lathi and Guttali had murdered with garasi and Durga Prasad was standing. Lalmoni had also come; after that many came but I don't recollect their names ……… I had not made any statement before the Police on Sunday, as Asharfi Sahu was threatening to have murdered who would depose before the Police. I had stated before the Police that on the first day for fear of Asharfi I did not depose before the Police.”

and in cross-examination he adds—

“I saw Durga Prasad and others running when I was at a distance of 5 or 6 laggis from them. They were running away in southernly direction I saw their full faces. I had not asked them any question ……… Out of fear I had not named Durga Prasad before the Police.”

7. Now, what is alleged is, false and concocted in these statements and what is alleged is the perjured statement by these men is that they had actually seen, on the night of the murder, at the scene of the crime and running away, Durga Prasad himself. Now, the way, in which it is sought to show that this statement made by these two applicants is one which must be regarded as constituting a perjury, is perhaps somewhat a roundabout one. It is freely admitted that had not the Magistrate and the Sessions Judge come to the conclusion that Durga Prasad's alibi was not true, and had they, on the contrary, decided that Durga Prasad's presence at Benares, ill at the time when this homicide took place, had been indubitably proved, the position of these two applicants would have been, to say the least of it, highly precarious. The learned Sessions Judge in a syllogism, the logic of which I do not altogether follow, says that

“though the alibi might be false it does not necessarily follow that the statements in question must be true.”

8. This is such an obvious truism that it seems to me to be hardly worth stating; but in order to be entirely fair to the accused its should start with much wider promises and it might almost be taken to read properly that, as the alibi was false: the statements of the applicants must be dealt with at best on their own merits and on the assumption that it was not impossible for the purposes of this criminal trial that Durga Prasad had in fact been present at the time of the occurrence.

9. Now, the only gravamin of the charge against the two accused lie in two factors; the first of these is that an Inspector of Police gave evidence in the criminal prosecution of these two men that, when he had examined them very shortly after the occurrence six years previously to the time when he was giving his testimony, neither of them had told him that they had seen Durga Prasad. “Lalmoni had,” so this Inspector states,

“told me, however, that on hearing the golmal he (Lalmoni) had gone to the spot and had seen Sheo Prasad who had told him that Gurtali was running away after outting Ram Lagan and that Durga Prasad had come and got him murdered.”

10. I take it that the last part of this sentence refers to the narrative of Sheo Prasad. The Inspector, according to the learned Sessions Judge, never questioned Lalmoni as to whether he had seen Durga Prasad himself, and it should be noticed that in Lalmoni's testimony before the Sub-ordinate Judge in the case of malicious prosecution, be himself bears out exactly what the Police Inspector had there stated. The Inspector of Police says, that Gangabisbun did not tell anything about Durga Prasad having been seen by him running: away, but that on the two occasions when he (the Inspector) had endeavoured to elicit some information from Gangabishun, he had given somewhat different statements in which, in the second, be added materially to what he had stated in the first. In the former he had stated that he had only beard of the murder in the following morning; whilst in the second, given nearly a month later, he is said to have told the Inspector that he heard the noise and went to the place where he found Ram Lagan dead from a out, Sheo Prasad Nonia, Tapsi Nonia, Lalmoni Nonia and Deonandan Koeri. Sheo Prasad and Tapsi were saying that Gurtali and Sohawan and Aliman had run away after killing Ram Lagan. According to the Inspector's evidence, this Gangabishun never even said as much as Lalmoni had said and had not stated that Tapsi or Sheo Prasad had even mentioned the name of Durga Prasad, a possibility which in view of the gradual manner in which he was adding to the amount which was being elicited from him by successive investigations, is not at all unlikely.

11. Now, I have no doubt that, so far as it goes, the evidence which was given by the Inspector of Police may be regarded as of some importance and also as being, so far as he can remember, correct. I think, however, it is desirable to mention casually that a long period had elapsed between what took place in 1916 and the giving of his testimony in 1922, that it is not altogether unreasonable to suppose that the enquiries directed to these two men were not, as indeed can be seen by the evidence which was subsequently given before the Sub-Divisional Officer, pursued with great minuteness (as there were, it is clear, other witnesses who ostensibly purported to know more about the mattered who were ready to give far more important evidence than apparent from the statements which were was effected from Lalmoni and Gangabishun), and lastly, that even assuming that the Inspector's memory is complete as to minutiae and that what he states is perfectly correct, it does not seem to me to amount to more than that before him these two men may not have told everything which they alleged they knew. They themselves now give explanations, such as they are, indicating why they did not tell the Inspector every thing which they told the Sub-ordinate Judge.

12. One must now pass from that first portion of the case which has weighed with the learned Magistrate and with the learned Sessions Judge to the second part which, no doubt, is perhaps of greater gravity; and that is the depositions which were in fact made by these two men before the Sub-Divisional Officer in 1916. Lalmoni deposes very much to the same effect as that which he is said to have stated before the Police Inspector. The material part of the evidence reads thus:—

“On Saturday night over 3 months ago 3 gharis night remaining I was sleeping at my door. Sheo Prasad called out loudly that Gurtali Sain had out. I was awoke then. I ran up and saw Sheo Prasad, and questioned him. He said Gurtali had out, Darga was standing by, Sohawan and Aliman were pressing. I went, Ram Lagan was lying on a charpai, with a out on the right side of his ……… I went home. The Sub-Inspector examined me.”

13. Nothing is elicited from him in cross-examination, and in re-examination he says:

“I bolted from fear.”

14. Gangabishun also says very much the same thing as he is said to have said in his second statement to the Inspector of Police. He deposes:—

“On Saturday night over 3 months ago I was at my door. Sheo Prasad called out that Gurtali is cutting. I ran up to the place, at Ram Lagan's out-house. I saw Sheo Prasad. He told me Gurtali out Aliman and Sohawan Prasad and Dnrga Prasad was standing there. I understood he had seen it. Ram Lagan was on a charapi, with a cat across his face—”

and in cross-examination, he said:—

“I do not know why, when the Sub-Inspector came, I denied all knowledge on that day from fear. I did not tell the Sub-Inspector that heard of the murder at sunrise or that I heard of the murder, but no names of any accused, or that suspected none. On Monday the Inspector and Sub-Inspector came. Sub-Inspector took my statement. I told the Sub-Inspector the name of Gurtali only from fear of Asharfi, 3 days after I gave all 4 names to the Sub-Inspector and made a fall statement.”

15. Then in re-examination he adds—

“Asharfi said that all the witnesses for Ram Lagan would meet with him first,”

16. Now, I do not know after a careful consideration that this evidence given before the Sub-Divisional Officer carries the matter very much further. I, of course, do not for one moment suggest in any way that Durga Prasad was present at the time of the occurrence, or that the statements which were made by these two applicants before the Sub-ordinate Judge were necessarily true. I should only like to point out that it must be shown, in order to sustain against them a successful charge of perjury, that they were certainly false. Now, I do not think that the evidence which they gave before the Sub-Divisional Officer is in any way more than the statements which they are said to have made to the Inspector of Police and is inconsistent with the possibility of the truth of the statements which they made before the Sub-ordinate Judge; and the criterion and the test of that is indicated when I state that it is conceivable that they for some reason or another omitted to state to the Inspector and before the Sub-Divisional Officer what they afterwards stated under totally different circumstances, to the Sub-ordinate Judge in the suit for damages for malicious prosecution. It is not merely sufficient for the prosecution to point to the fact that in a trial or, rather, at a preliminary stage of an investigation, Durga Prasad was dismissed, no doubt rightly, under the circumstances, from the serious accusation which had been made against him. It is not, I think, even sufficient to show that there has been discrepancy between what was stated by these men before the Sub-Divisional Officer or before the Inspector of Police and what was stated before the Sub-ordinate Judge. Putting aside altogether that the latter evidence appears, when examined, to be an addition to previous statements, it is necessary for the prosecution to prove either that on their face the latter statements must be necessarily regarded as deliberately perjured or that they are so from extrinsic circumstances, such as the fact that in these prosecutions Durga Prasad had satisfied the Trying Officer and the Sessions Judge that he was not in fact present at the place, I must admit that when one looks at the circumstances of this case one's mind is filled with serions suspicions. It may very well be as is suggested by the learned Assistant Government Advocate, the case that these two men recklessly went into the witness-box in order to help their relatives when they saw their relatives being sued for damages in connection with this claim brought against them by Durga Prasad for malicious prosecution; and it may be that these statements which they made were not in fact true. But, when one has said that, I think that one has said practically all. But that is not enough. It must be proved beyond any reasonable doubt that those statements are deliberately false. I doubt, whether in this case that can really properly be said. It has been suggested to me quite rightly that in revisional jurisdiction of this kind it is necessary to be exceptionally careful before interfering with findings of fact of Sub-ordinate Courts, and with that I entirely agree, and, if I could find here any decisions based upon fact alone upon which these applicants had been convicted, I should hesitate more than once before coming to a conclusion that these convictions should be set aside. But in this case I do not find any such findings of fact; what I do ascertain from the papers which have been placed before me, is that there have been inferences drawn as to probabilities which may be deduced from facts and from circumstances which formed the environments of this somewhat peculiar affair; and, where one has to make up one's mind as to inferences and the correctness of those inferences and as to what is probable and what is reasonable and what is possible, there is often introduced, in my view into a case such an element of doubt as should properly cause a Court to give accused persons under such circumstances such as these the benefit of whatever doubt there is. Here, I think, there is a loophole in this case; although a suspicious and sinister affair, I cannot think that the charge has been fully maintained against these two men by the prosecution.

17. I, therefore, now have no hesitation in setting these convictions aside.

18. Convictions set aside.