Distinguish between 'giving false evidence and fabricating false evidence'?

The Legislative Framework

Under the Indian Penal Code, 1860, giving false evidence is defined under Section 191, fabricating false evidence is defined under Section 192, and the punishment for both is prescribed under Section 193. The Bharatiya Nyaya Sanhita, 2023 retains these provisions without any material change in their substantive content — Section 227 BNS corresponds to Section 191 IPC, Section 228 BNS corresponds to Section 192 IPC, and Section 229 BNS corresponds to Section 193 IPC. Chapter XIV of the BNS, which spans Sections 227 to 269, comprehensively deals with false evidence and offences against public justice. Both offences are an assault on the court's ability to arrive at truth — one by corrupting the testimonial process, the other by corrupting the evidentiary material itself.

Giving False Evidence: Section 191 IPC / Section 227 BNS

Section 227 BNS defines giving false evidence in the following terms:

"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."

The architecture of this definition is built upon three pillars. The first is a legal obligation to speak truth — arising either from an oath administered by a competent authority, or from an express statutory provision. A person who is not under any such obligation and says something false does not commit this offence, however dishonestly he may have spoken. The second pillar is the making of a statement — whether verbal or otherwise, as Explanation 1 to the section clarifies. The third is falsity known or believed by the maker — the person must know or believe the statement to be false, or at least must not believe it to be true. This last element is particularly interesting. As Explanation 2 makes clear, a false statement as to belief is also within the section — so a person who states that he believes a thing which he does not in fact believe commits the offence. The law reaches not merely deliberate falsehood but also reckless disregard of truth.

The illustrations appended to Section 227 BNS illuminate the section vividly. If A, in support of a claim by B against Z, falsely swears on trial that he heard Z admit the claim, A has given false evidence. If A, bound on oath, states that he believes a certain signature to be the handwriting of Z when he does not believe so, he gives false evidence. Contrast this with illustration (c): if A states that he believes a signature to be the handwriting of Z, and does genuinely believe this in good faith, he does not give false evidence — even if the signature ultimately turns out not to be Z's. The offence lies in the guilty mind, not merely in the objective falsity of the statement.

The Supreme Court settled an important aspect of this section in Ranjit Singh v. State of Pepsu (AIR 1959 SC 843), where a police officer filed a false affidavit in habeas corpus proceedings before the High Court, denying that a man was ever arrested or kept in his custody. The Court held that since the officer was legally bound to place true facts before the court in his affidavit, his false statements constituted the offence of giving false evidence under Section 193 IPC, read with the definition in Section 191 IPC. The case underlines a critical point: the obligation to speak truth need not arise from a formal court proceeding alone — affidavits, sworn declarations and statutory verifications all attract this section.

Fabricating False Evidence: Section 192 IPC / Section 228 BNS

Section 228 BNS defines fabricating false evidence as follows:

"Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or 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."

Where giving false evidence is a verbal or testimonial act, fabricating false evidence is a physical act — it is the creation of false material reality with a view to deceiving a court, a public servant, or an arbitrator. The gist of the offence, as the sources summarise it, is the intention to cause failure of justice by the use of a false statement or thing in evidence. The essence of the offence consists in making a false entry in a book or record, or in a document containing a false statement, so as to cause a judge, a public servant, or an arbitrator to entertain an erroneous opinion upon any material point.

The three illustrations appended to Section 228 BNS are among the most instructive in the entire Penal Code. In illustration (a), A puts jewels into a box belonging to Z, intending that they may be found there, and that this circumstance may cause Z to be convicted of theft — A has fabricated false evidence. Here, no document is involved; A has caused a circumstance to exist. In illustration (b), A makes a false entry in his shop-book to use it as corroborative evidence in court — fabrication of a record. In illustration (c), A writes a letter in imitation of Z's handwriting to an accomplice in a criminal conspiracy, and places it where the police are likely to search — fabrication of a document. Three very different physical acts, all united by the same devastating intention: to cause an innocent person to be found guilty by planting false material before the trier of facts.

The Lahore High Court in Ashiq Mahomed v. Emperor (1936 Cr. LJ 562 Lah.) confirmed that the section strikes at fraud practised on the courts, and that fabrication of documents is one primary mode in which such fraud may be perpetrated. The Madras High Court in P. Rama Naidu, Re. (AIR 1942 Mad. 92) held that a person who attests a signature in a document knowing it to be false and intending to prove the discharge of a decree debt is guilty under this section — illustrating how deeply the section penetrates even routine document fraud when directed at a legal proceeding.

The Distinction: A Comparative Analysis

The sources themselves enumerate the precise points of distinction with admirable clarity, and these deserve to be examined with care and elaboration.

The Nature of the Act

In giving false evidence, the accused makes a statement — he speaks, deposes, or declares. The act is oral or written in the sense of testimony. In fabricating false evidence, the accused creates something — he plants a physical object, forges a document, makes a false entry, or causes a false circumstance to exist. The one corrupts the witness; the other corrupts the material evidence.

The Occasion of the Offence

This is perhaps the most fundamental distinction. The offence of giving false evidence can only be committed when a proceeding is already in existence — the person must be giving evidence in a proceeding, whether judicial or otherwise. There must be a case pending, an inquiry in progress, or some formal process to which the false statement is related. Fabricating false evidence, on the other hand, does not require any such pre-existing proceeding. The accused may fabricate evidence before any proceeding has commenced — he only needs the intention that the fabricated material will be used when a proceeding arises. This is a critical distinction, and the cases have repeatedly emphasised it.

The Quality of Intention Required

Both offences require mens rea — there is no strict liability here. However, the quality of the required intention differs sharply. In giving false evidence, a general intention to make a false statement suffices. It is enough that the accused knew or believed the statement to be false when he made it, regardless of the particular use to which it would be put. In fabricating false evidence, a specific, targeted intention is required — the accused must intend, at the time of fabrication, that the false entry, circumstance, or document will appear in evidence in a specific proceeding and will cause a particular person to form an erroneous opinion on a material point. This is a narrower and more exacting mens rea. A person who forges a document for general purposes, without specifically intending its use in a legal proceeding to mislead a trier of fact, does not commit this offence.

Materiality

In giving false evidence, it is not necessary that the false statement be material to the case. As the sources note, it is sufficient if the person was legally bound to speak the truth and made a false statement. Immateriality of the false testimony does not take the offence out of Section 227 BNS. In fabricating false evidence, however, the fabricated material must relate to a point material to the result of the proceeding. Section 228 BNS requires that the false circumstance or entry may cause a person to entertain an erroneous opinion touching any point material to the result of such proceeding. Fabrication of irrelevant material, even if done with dishonest intent, does not satisfy the section.

The Obligation to Speak Truth

Giving false evidence requires the person to be under a legal obligation to state the truth — whether by oath, affirmation, or an express provision of law. This is a mandatory ingredient. No such pre-existing obligation is required for fabricating false evidence. A person who has no obligation to say anything at all can still fabricate evidence by planting a document or creating a false circumstance.

The Punishment: Section 193 IPC / Section 229 BNS

Section 229 BNS prescribes a graded punishment framework. 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 which may extend to ten thousand rupees. Where the false evidence is given or fabricated outside a judicial proceeding — before an administrative authority or a public servant, for instance — the punishment is lighter: imprisonment up to three years and fine up to five thousand rupees.

The section further clarifies that an investigation preliminary to a court proceeding is also a stage of a judicial proceeding. This Explanation is of enormous practical importance. As the illustration to Section 229 shows, if A makes a false statement on oath before a Magistrate in an inquiry to ascertain whether Z should be committed for trial, A has given false evidence at a stage of a judicial proceeding — even though no trial has commenced. This was the principle applied by the Supreme Court in the celebrated case of M.S. Ahlawat v. State of Haryana (AIR 1996 SC 2326) — a landmark judgment in which a senior IPS officer was sentenced to one year of imprisonment for perjury under Section 193 IPC, having deliberately fabricated records and placed false affidavits before the Supreme Court in a habeas corpus matter. The Court observed with severity: "It is highly unbecoming on the part of a responsible Superintendent of Police like Ahlawat to play hide and seek and give instructions to forge his signature for use in judicial proceedings." The Court further noted the importance of curbing such tendencies when officers have the temerity to fabricate records and place them before the highest court of the land.

Aggravated Offences

The law does not stop at the basic offences. Section 230 BNS (corresponding to Section 194 IPC) prescribes the most severe form: giving or fabricating false evidence with intent to procure conviction of a capital offence. The punishment extends to imprisonment for life or rigorous imprisonment for ten years, and fine up to fifty thousand rupees. In the most horrific scenario — where an innocent person is actually convicted and executed in consequence of such false evidence — the person who gave or fabricated that evidence shall be punished either with death or with imprisonment for life. The law thus places the life of the false witness in the very balance in which he placed the life of his victim. Similarly, Section 231 BNS (corresponding to Section 195 IPC) deals with fabricating false evidence to procure conviction of a non-capital offence punishable with life imprisonment or imprisonment for seven years or upwards — the fabricator receives the same punishment as the person he sought to convict.

Summary of the Distinction

The distinction, in its most elemental form, may be captured thus: the person who gives false evidence is a lying witness; the person who fabricates false evidence is an architect of deception — he does not wait to be called upon to speak; he quietly builds a false reality before the court's eyes.