Perjury and False Evidence under BNS: Sections 227 to 229, Giving and Fabricating False Evidence, and Landmark Cases

A witness in a murder trial, bribed by the accused, testifies falsely that the accused was elsewhere at the time of the crime. A person swears a false affidavit to obtain a favourable order. A party to a civil suit fabricates documents to support a fictitious claim. A witness, having made a truthful statement to the police, resiles from it in court and gives a false version. Each of these strikes at the very foundation of the justice system, which depends on truthful testimony and genuine evidence. If witnesses lie and evidence is fabricated with impunity, courts cannot ascertain the truth, and justice fails. The offence of perjury - giving false evidence - and the related offence of fabricating false evidence are therefore among the most important offences against the administration of justice. The Bharatiya Nyaya Sanhita, 2023, addresses these offences through Chapter XIV (offences relating to false evidence and offences against public justice), principally Sections 227 (giving false evidence), 228 (fabricating false evidence), and 229 (punishment). This module walks through the definitions, the ingredients, the crucial requirement of materiality, the enhanced punishment where false evidence leads to conviction, the distinction between giving and fabricating false evidence, the procedural framework for prosecution, and the leading cases.

1. Introduction

The foundation of the justice system

The justice system depends fundamentally on truth:

• Courts ascertain facts through the testimony of witnesses and the examination of evidence.
• If witnesses lie and evidence is fabricated, courts cannot ascertain the truth.
• The entire adjudicative process rests on the integrity of evidence.
• Perjury and fabrication of evidence corrupt this process at its foundation.

The offences against public justice

Chapter XIV of the BNS addresses offences relating to false evidence and offences against public justice:

• Giving false evidence (perjury) - Section 227.
• Fabricating false evidence - Section 228.
• Punishment - Section 229.
• Aggravated forms (false evidence to procure conviction) - Section 230.
• False evidence to procure conviction for life or seven-year offences - Section 231.
• Using evidence known to be false - Section 233.
• Related offences (destruction of evidence, false information, etc.).

The statutory framework

The framework criminalises the corruption of the evidentiary process:

• At the input stage: giving false evidence (false testimony) and fabricating false evidence (creating false material).
• With enhanced punishment for judicial proceedings and for procuring wrongful conviction.
• With a specific procedural framework for prosecution.

2. Section 227 BNS: Giving False Evidence

Text of Section 227

The ingredients

Being legally bound to state the truth

The first ingredient - being legally bound to state the truth - is crucial:

• A witness who has taken an oath to state the truth is legally bound.
• A person making a statement under an express provision of law requiring truth is legally bound.
• A person bound by law to make a declaration is covered.

Common contexts:

• A witness testifying in court under oath.
• A person swearing an affidavit.
• A person making a declaration required by law.
• A person making a statement to a public servant who is authorised to administer an oath.

3. The Requirement of Materiality

A crucial requirement for perjury is that the false statement must be on a MATERIAL point:

• Not every false statement constitutes perjury.
• The false statement must be on a material point - one that is relevant to the matter in issue and could affect the outcome.
• A trivial or immaterial falsehood does not constitute perjury.

The materiality requirement:

• Ensures that perjury prosecutions are reserved for falsehoods that matter.
• Prevents the criminalisation of trivial or collateral misstatements.
• Focuses the offence on falsehoods that could pervert the course of justice.

The materiality requirement is well-established: a false statement, to constitute perjury, must relate to a matter that is material to the proceeding - one that could influence the decision or the course of the proceeding.

4. The Mental Element in Perjury

The mental element for perjury has three alternative forms:

• The person KNOWS the statement to be false.
• The person BELIEVES the statement to be false.
• The person DOES NOT BELIEVE the statement to be true.

The third form is significant:

• A person who makes a statement they do not believe to be true commits perjury, even if the statement happens to be true.
• The offence targets the dishonest state of mind, not merely objective falsehood.

Explanation 2 clarifies:

• A false statement as to one's belief is covered.
• A person may commit perjury by stating they believe something they do not believe, or that they know something they do not know.

This means the offence covers not only false statements of fact but also false statements of belief or knowledge - the essence is the dishonest assertion, whether of fact, belief, or knowledge.

5. Section 228 BNS: Fabricating False Evidence

Text of Section 228

The ingredients

The three modes

Fabricating false evidence may be committed by three modes:

• Causing a circumstance to exist (creating a false physical situation, e.g., planting evidence).
• Making a false entry in a book, record, or electronic record.
• Making a document or electronic record containing a false statement.

The distinctive feature of fabrication:

• It involves the creation of false material (as opposed to false testimony).
• It is done with the intention that the false material appear in evidence.
• And with the intention that it cause an erroneous opinion on a material point.

Examples of fabricating false evidence:

• Planting a weapon to falsely implicate a person.
• Forging a document to support a false claim.
• Making a false entry in an account book.
• Creating a false electronic record.

6. Section 229 BNS: Punishment

Judicial proceeding: up to 7 years

Where the false evidence is given or fabricated in (or for) a judicial proceeding:

• Punishment: imprisonment up to seven years and fine.
• This reflects the greater gravity of corrupting judicial proceedings.

Other cases: up to 3 years

Where the false evidence is given or fabricated in any other case (not a judicial proceeding):

• Punishment: imprisonment up to three years and fine.
• This covers false evidence in non-judicial legal proceedings.

The distinction reflects the special importance of protecting the integrity of judicial proceedings, where the consequences of false evidence are most serious.

7. Distinction: Giving vs Fabricating False Evidence

The key distinction:

• Giving false evidence (Section 227) involves making a false STATEMENT while legally bound to state the truth.
• Fabricating false evidence (Section 228) involves CREATING false material (circumstances, entries, documents) with the intention that it appear in evidence.

Both corrupt the evidentiary process, but through different means:

• Giving false evidence corrupts the testimonial input (lying).
• Fabricating false evidence corrupts the material input (creating false evidence).

Both are punished under Section 229 with the same punishment (up to seven years for judicial proceedings, three years otherwise).

8. Section 230: False Evidence to Procure Conviction

Section 230 addresses the aggravated offence of giving or fabricating false evidence to procure a wrongful conviction:

• Where the false evidence is intended to (or likely to) cause a conviction for a capital offence: life imprisonment or up to ten years and fine.
• Where an innocent person is convicted AND executed as a consequence: the person who gave the false evidence may be punished with DEATH or the punishment described above.

This is a striking provision:

• It makes the death penalty available for a person who, through false evidence, causes an innocent person to be executed.
• It reflects the extreme gravity of using the justice system to procure the judicial murder of an innocent person.
• The false witness who causes an innocent person's execution may themselves face the death penalty.

The provision recognises that false evidence leading to the execution of an innocent person is, in effect, murder through the instrumentality of the court, and treats it with corresponding gravity.

9. Section 233: Using Evidence Known to be False

Section 233 addresses the using of evidence known to be false or fabricated:

• Corruptly using or attempting to use false or fabricated evidence as true or genuine.
• Knowing it to be false or fabricated.
• Punished in the same manner as giving or fabricating false evidence.

This provision extends liability beyond the person who gives or fabricates the false evidence to the person who USES it:

• A party who uses fabricated documents in court is liable.
• A person who tenders false evidence knowing it to be false is liable.
• The user is treated the same as the fabricator.

This closes the gap where a person might use false evidence created by another, ensuring that the use of false evidence is criminalised alongside its creation.

10. The Procedural Framework: Section 379 BNSS

The prosecution of perjury and false evidence is subject to a specific procedural framework:

Key features of the procedural framework:

• A private complaint cannot ordinarily be filed for perjury committed in a court proceeding.
• The court in relation to whose proceeding the offence was committed must file a complaint.
• The court must be of the opinion that it is expedient in the interests of justice.
• A preliminary inquiry may be conducted.

The rationale for this framework:

• It prevents the harassment of witnesses through frivolous perjury complaints.
• It ensures that perjury prosecutions are initiated only where the court considers it expedient.
• It protects the integrity of the process while preventing its misuse.

11. The Problem of Hostile Witnesses and Perjury Prosecutions

A significant practical problem in the Indian justice system is the phenomenon of hostile witnesses and the rarity of perjury prosecutions:

• Witnesses frequently resile from their statements to the police and give false testimony in court (turning 'hostile').
• This is often due to intimidation, bribery, or pressure.
• Despite the prevalence of perjury, prosecutions are rare.
• This has been a matter of serious judicial concern.

The Supreme Court's concern:

• The rarity of perjury prosecutions undermines the deterrent effect of the law.
• Courts have called for more vigorous prosecution of perjury.
• The interaction with witness protection (see the Witness Protection Scheme) is important - protecting witnesses reduces the pressure that leads to hostile testimony.

The problem of hostile witnesses and the underuse of perjury prosecutions remains a significant challenge for the Indian criminal justice system, addressed partly through the witness protection framework and calls for more vigorous perjury prosecution.

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• In re: R. Karuppan, (2001) 5 SCC 289. Materiality and expediency.
• Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370. Court-complaint framework.
• Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158. Best Bakery case.
• Chajoo Ram v. Radhey Shyam, (1971) 1 SCC 774. Reasonable foundation and expediency.
• K.T.M.S. Mohammed v. Union of India, (1992) 3 SCC 178. Deliberate falsehood on material point.
• Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34. Need to prosecute perjury.
• Ranjit Singh v. State of Pepsu, AIR 1959 SC 843. Legally-bound requirement.
• Baban Singh v. Jagdish Singh, AIR 1967 SC 68. False affidavit prosecution.
• Swaran Singh v. State of Punjab, (2000) 5 SCC 668. Concern about prevalence.
• Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406. Framework for perjury prosecution.
• Pritish v. State of Maharashtra, (2002) 1 SCC 253. Preliminary inquiry framework.
• Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290. Framework for false evidence complaints.
• Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113. Section 340 CrPC framework.
• State of Punjab v. Jasbir Singh, (2022) SC. Modern perjury framework.
• Perumal v. Janaki, (2014) 5 SCC 377. Complaint framework for false evidence.

Frequently Asked Questions

What is perjury (giving false evidence) under Section 227 BNS?

Section 227 BNS (formerly Section 191 IPC) defines giving false evidence (perjury): 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, 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. Ingredients: (i) the person is legally bound to state the truth (by oath, express provision, or declaration requirement); (ii) the person makes a false statement; (iii) the person knows or believes it to be false, or does not believe it to be true. The offence covers false statements of fact, belief, or knowledge. Common contexts: a witness testifying falsely under oath in court; a false affidavit; a false declaration required by law. Crucially, the false statement must be on a MATERIAL point to constitute perjury.

What is the difference between giving and fabricating false evidence?

GIVING false evidence (Section 227) involves making a false STATEMENT while legally bound to state the truth - it corrupts the testimonial input (lying). Examples: false testimony in court, a false affidavit. FABRICATING false evidence (Section 228) involves CREATING false material with the intention that it appear in evidence - it corrupts the material input. Three modes: causing a circumstance to exist (e.g., planting evidence), making a false entry in a book/record, or making a document/record with a false statement. Examples: planting a weapon to falsely implicate someone, forging a document, making a false account entry. Both corrupt the evidentiary process but through different means (false testimony vs false material). Both are punished under Section 229 with the same punishment: up to seven years for judicial proceedings, up to three years otherwise. Both require the falsehood to be material to the result of the proceeding.

What is the punishment for perjury and false evidence?

Section 229 BNS (formerly Section 193 IPC) provides the punishment. Where false evidence is given or fabricated in (or for) a JUDICIAL PROCEEDING: imprisonment up to SEVEN years and fine (reflecting the greater gravity of corrupting judicial proceedings). Where false evidence is given or fabricated in ANY OTHER CASE (non-judicial legal proceeding): imprisonment up to THREE years and fine. Additionally, Section 230 provides aggravated punishment: where false evidence is intended to procure a conviction for a capital offence, life imprisonment or up to ten years; and strikingly, if an innocent person is convicted AND executed as a consequence of the false evidence, the person who gave the false evidence may be punished with DEATH. Section 233 provides that using evidence known to be false or fabricated is punished the same as giving or fabricating it. The graduated punishment reflects the varying gravity of false evidence offences.

Can a false witness who causes an innocent person's execution face the death penalty?

Yes. Section 230 BNS (formerly Section 194 IPC) provides a striking aggravated offence. Where a person gives or fabricates false evidence intending to (or knowing it likely to) cause a person to be convicted of a CAPITAL offence: life imprisonment or up to ten years and fine. Crucially, if an INNOCENT PERSON is CONVICTED AND EXECUTED as a consequence of such false evidence, the person who gave the false evidence 'shall be punished either with death or the punishment hereinbefore described'. This means the false witness who causes an innocent person's judicial execution may themselves face the DEATH PENALTY. The rationale: false evidence leading to the execution of an innocent person is, in effect, murder through the instrumentality of the court - the false witness uses the justice system to commit judicial murder. The provision treats this with corresponding gravity, making the death penalty available for the false witness whose lies cause an innocent person's execution.

Why is a court complaint required to prosecute perjury?

Under Section 379 BNSS (formerly Section 340 CrPC), the prosecution for perjury and related offences committed in relation to a court proceeding requires a COMPLAINT IN WRITING BY THAT COURT (or a superior court), where the court is of the opinion that it is expedient in the interests of justice, after a preliminary inquiry if the court thinks fit. A private complaint cannot ordinarily be filed. The rationale: (i) it prevents the harassment of witnesses through frivolous perjury complaints; (ii) it ensures perjury prosecutions are initiated only where the court considers it expedient; (iii) it protects the integrity of the process while preventing its misuse. In Chajoo Ram v Radhey Shyam (1971), the Supreme Court held that prosecution should be sanctioned only where there is a reasonable foundation for the charge and it is expedient in the interests of justice, not merely because a false statement was made - there must be a deliberate and conscious falsehood on a material matter. This safeguard balances the need to punish perjury against the risk of misusing perjury prosecutions to harass witnesses.

Why are perjury prosecutions rare in India despite hostile witnesses?

This is a significant problem in the Indian justice system. Witnesses frequently resile from their police statements and give false testimony in court (turning 'hostile'), often due to intimidation, bribery, or pressure. Yet despite the prevalence of perjury, prosecutions are rare. Reasons include: (i) the court-complaint requirement (Section 379 BNSS) means prosecutions depend on the court's initiative; (ii) courts are often reluctant to initiate perjury proceedings amid heavy caseloads; (iii) the difficulty of proving the deliberate and conscious falsehood; (iv) the focus on the main case rather than collateral perjury. The Supreme Court has repeatedly expressed concern: in Swaran Singh v State of Punjab (2000), the Court lamented the prevalence of perjury and the rarity of prosecutions; in Mahila Vinod Kumari (2008), the Court emphasised the need to prosecute perjury to curb false evidence. The rarity of perjury prosecutions undermines the deterrent effect of the law. Addressing this requires more vigorous prosecution and effective witness protection (the Witness Protection Scheme reduces the intimidation that leads to hostile testimony).

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• False Evidence and Offences Against Public Justice under BNS: Chapter XIV (Sections 227-269) of which perjury is the central offence.
• Witness Protection Scheme, 2018: the framework addressing the intimidation that leads to hostile witnesses and false evidence.
• Forgery under BNS: Sections 335 to 344 that address the creation of false documents, related to fabricating false evidence.
• Section 379 BNSS: the procedural provision requiring a court complaint for prosecution of perjury committed in court proceedings.