FALSE EVIDENCE
INTRODUCTION
“Fear is often described as False Evidence Appearing Real”
In the past two decades, there have been many cases where hundreds of innocent are convicted on false confessions or false evidences. J Bentham, the great Philosopher and thinker of his time, once said, “Witnesses are the eyes and ear of justice”. When witnesses give false proof it leads to the conviction of the innocent persons and real accusers are set free. Fabricating false evidence is not only peculiar to our country rather it is wide spread. Further it is to be noted that No law permits any police official or anyone to fabricate false evidence to prosecute a person and also casts a duty on the police officials to investigate a matter in accordance with law without fear and favor.
Present discussion is humble attempt to consider if a person by implicating another falsely by misinforming the police commits a trivial offence under Section-182 IPC or a grave offence of fabrication of false offence which is punishable under Section-193, 194,195 etc.
FALSE EVIDENCE
“Thou shalt not bear false witness against thy neighbor” means “you shall not bear false witness against your neighbor”. In ancient Hebrew law to ascertain a claim under civil law or a crime under criminal law two or three witnesses were required. A false witness might lie under oath throughout judicial proceedings so as to ascertain guilt during a criminal case, or fault during a civil case. Since judgment based on false testimony could destroy the life or property of innocent mortals and discredit a country’s system of justice, the penalty for violation was terribly severe.
But the commandment against bearing false witness includes an abundant broader application.
“Thou shalt not bear false witness against thy neighbor” is the ninth commandment.
Dharmashastra texts had demanding penalties against those who gave false evidence. But those are in the past. Presently, IPC (Indian Penal Code) have sections relating to false evidences.
There are several incidents of fabricating evidences that resulted in conviction of innocents and exempting the important suspect persons and revealing the mockery of our judicial system.
One could refer the far-famous Priyadarshani Mattoo Case, Nitish Katara case that dismayed the state and had major consequences and different effects on the victim’s family as well as on the persons accused.
The provisions of law relating to giving and fabricating False Evidence, have been mentioned under section 191 to 195 of the Indian Penal Code 1860.
Section 191provides:
GIVING FALSE EVIDENCE-
Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
EXPLANATION 1.
A statement is within the meaning of this section, whether it is made verbally or otherwise.
EXPLANATION 2.
A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
Lying isn’t an offence. It is an offence only when there is a legal obligation to speak the truth, such as through an oath. Hence, etymologically, perjury means to take a false oath.
Section 192 provides:
FABRICATING FALSE EVIDENCE-
Whoever causes any circumstances to exist or [makes any false entry in any book or record or electronic record or makes any documents or electronic record containing a false statement], intending that such circumstances, false entry of false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said “to fabricate false evidence”.
Section 193 provides:
PUNISHMENT FOR FALSE EVIDENCE-
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term, which may extend to seven years, and shall also be liable to fine,
And whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term, which may extend to three years, and shall also be liable to fine.
Explanation 1.
A trial before a Court- marital; [***] is a judicial proceeding
Explanation 2.
An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
The distinction is to be made between giving false evidence and fabricating false evidence. Both the actions are punishable in law but however after all they are clearly completely different. A person may be bound by oath or by any other law to state the reality and despite that if he makes false statement, he will be treated as giving false evidence. On the other hand however, if a person causes any circumstance to exist with an intention that such circumstance may appear in evidence in a judicial proceeding and such circumstance so appearing in evidence may cause the presiding judge to form an erroneous opinion, he will be treated to have fabricated false evidence.
Difference is obvious. Within the first instance, there is binding law (either of oath or other law) because of that the person is needed to inform the reality. However, within the latter instance, there is no law at all. In the former, actual creating of statement leads to the crime whereas in the latter, solely the intention of doing the act results into the crime. If intention of an individual for inflicting a circumstance to exist were clearly established as required, the offence would be complete.
What is more of some significance is that the expression “intending” appearing in the section 192 does not only govern the first part, which says “may appear in evidence” but it also governs the second part which says “so appearing in evidence”.
A combined reading of both the parts would suggest that if the intention of the person is that the circumstance may appear in evidence and on so appearing it should lead to an erroneous opinion by the deciding officer, the ingredients will be satisfied. There is no necessity that there must be actual evidence or that the circumstance must appear in evidence or that the deciding officer must have formed an erroneous opinion or that the deciding officer must have an opportunity to so form an erroneous opinion. Only the intention of that person is sufficient to attract the provision if he so caused the circumstance to exist with that intention as mentioned in the Section.
Section 193 is a provision for punishing all such activities. It also contrasts between “giving” and “fabricating”. It clearly recognizes that so far as giving is concerned, the false evidence must be given in any stage of a judicial proceeding.
On the other hand, so far fabrication is concerned, it acknowledges that the fabrication ought to be for the aim of being employed in any stage of a legal proceeding. It nowhere says that fabricated evidence must be used. It punishes the purpose and not the actual usage so far as fabrication is concerned. If the purpose was that the fabricated evidence should be used in any stage of a judicial proceeding, it hardly matters whether the same was actually used or not. Ingredients of Section 193 are satisfied.
CASE
Shyni Varghese v. State
Facts of the case are as followed:
During the investigation in case FIR No. 104/06 dated 03.06.2006 under section 21/25/27/29 of Narcotics Drugs and Psychotropic Substances Act read with 201/34 Indian Penal Code it was revealed to the police that the doctors and management of the Apollo Hospital had misled the investigating agency by fabricating and manipulating their records with an intent to harbor and help accused involved in the case to escape from law and also arranged press conference and gave incorrect facts to the media with a view to conceal the offence and screen the offenders.
Although it appeared that the manipulation of Apollo management was done prior to the investigation of Rahul Mahajan case and certainly at that time there was no trial pending in the court. Despite that, the concerned persons of the Apollo hospital were summoned for section 193 i.e. fabricating false evidence.
Section 194 provides:
GIVING OR FABRICATING FALSE EVIDENCE WITH INTENT TO PROCURE CONVICTION OF CAPITAL OFFENCE-
Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital 1[by the law for the time being in force in 2[India]] shall be punished with 3[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; if innocent person be thereby convicted and executed; and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment herein before described.
Section 194 provide for specific punishment and when the “intention” is to get a conviction in imprisonment cases.
Section 195 provides:
GIVING OR FABRICATING FALSE EVIDENCE WITH INTENT TO PROCURE CONVICTION OF OFFENCE PUNISHABLE WITH IMPISNMENT FOR LIFE OR IMPRISONMENT-
Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by the law for the time being in force in India is not capital, but punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished
A PERSON WHO GAVE FALSE EVIDENCE IN COURT WAS AWARDED 7 YEARS OF IMPRISONMENT
The Chandigarh district court awarded seven years of imprisonment to one for giving false evidence on oath. The court of chief judicial magistrate Akshdeep Mhajan convicted Sultanpur resident Kamlesh on the basis of a complaint that was filed by district and session judge, under section 193 (punishment for false evidence) of the Indian Penal Code on directions of High court. The court also imposed a fine of Rs 20,000 on him. Taking cognizance of the action of the defendant, the court determined “Such persons need to be dealt with strictly”.
PERJURY UPON THE SOUL
Here is a Supreme Court take from Justice D P Wadhwa,
“Perjury has conjointly become the simplest way of life within the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself, which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of Cr.P.C. In this respect, as the high court can direct any officer to file a complaint, to get rid of the evil of perjury.
Here is a Second Supreme Court take,
“The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively, it is desirable for the courts to use the provisions more effectively and frequently than it is presently done.
In a way perjury has become a way of life and also it has assumed alarming propositions.
CONCLUSION
The close analysis of above sections reveals a bitter truth that the foundation of giving and fabricating false evidence is to cause injury or damage to other party and inter-fire in the judicial proceedings before the court or tribunal.
The natural result is that a person who tries to frame another by giving a wrong information to police risks a prosecution for fabrication of false evidence and if his intention in so doing is found to be to procure a conviction for death penalty, life imprisonment or an sentence of 7 years or more, he shall be punishable in accordance with the offence for which he wanted to falsely implicate that other person by virtue of Section-194 & 195 IPC and in rest of the cases, he would be punishable under Section-193 IPC which also attracts sufficiently harsh punishment.