JUDGMENT

Pullan, J. - This is an appeal from an order of the Sessions Judge of Azamgarh rejecting an application made by one Yar Muhammad for sanction to prosecute eight persons u/s 193, I. P.C. These eight persona among others gave evidence in the Court of the Sessions Judge of Azamgarh in a case in which Yar Muhammad and others were accused of the serious offences of murder rioting and arson. The Sessions Judge believed the evidence of. five of these eight witnesses, disbelieved the evidence of one Mt. Gobindi and felt himself unable to accept the evidence of the other two. He found however that the case as stated by them was substantially true and he convicted eight persons u/s 302, I.P.C., and sentenced them to transportation for life. He also found them guilty of minor offences and all except three of them guilty of the offence of arson and awarded separate sentences under the relevant sections. When the appeal came before the High Court, the Judges were of opinion that the conviction could not be sustained in the case of any of the persons who were transported for life and the Judges stated that in their opinion the witnesses who had given evidence

as regards the incident of the attack on Subh Lal are unscrupulous liars and no reliance can be placed on the statements of anyone of them.

2. Relying on these observations Yar Muhammad made the application, to the Sessions Judge, which is now before me in appeal. Apparently there was some defect in the application as although he asked leave to proceed against eight persons, be instanced only the statement made by one of them Bansi Singh. But it appears that the statement of all the eight persons were in many particulars almost identical and had the learned Judge thought it proper to order a 'prosecution of all of them, the application could no doubt have been amended so as to put the matter in the proper form. The Sessions Judge however refused to take any action. He said in his order:

This Court believed the prosecution evidence of most of the witnesses and does not see how it can feel justified in ordering their prosecution for the very evidence it believed. No fresh material has been placed before it to justify it to order prosecution;

and he has gone on to say:

the fact that the evidence of a witness is believed by one Court and disbelieved by the other Court is sufficient to give the benefit of doubt to the witness, and he has cited one decision of the Patna High Court Raghupat Sahai v. Emperor AIR 1923 Pat. 160 and one case of this High Court Debi Datt Tewari Vs. Emperor, AIR 1928 All 548 in support of this view.

3. Neither of the judgments referred to by the learned Sessions Judge go so far as to say that no person should be convicted of perjury who has been believed by the trial Court and disbelieved by the Court of appeal. But undoubtedly the fact that the trial Judge felt himself able to accept 'the statements of these witnesses as true evidence in a trial for murder is a point to be taken in their favour when the question of prosecuting these persons for perjury arises. The case which the learned Sessions Judge had to try was one of those difficult cases in which communal feelings ran high in a village community. A party of Mahomedans had roused the feelings of the Hindus by killing a nilgai which is regarded by the Hindus as having some connexion with the sacred cow. The Hindus assaulted the Mahomedans and caused them serious injuries. The Mahomedans retaliated in force and there is no reason to doubt that it was a party of Mahomedans who came to the village of Bhadsara in the afternoon of 30th April 1930, set fire to and burnt eight houses belonging to the Hindus and killed a man named Subh Lal, inflicting on his person no less than 19 injuries nine of which were caused by sharp cutting weapons and the others by lathis. One of the injuries fractured Subh Lal's skull and he had three ribs broken. There is therefore no question that the man was murdered. The defence put