Bombay High Court

Manoj Nivrutti Chavan vs State Of Maha on 29 June, 2016

Bench: A.I.S. Cheema

                                                 Criminal Appeal No.250/2003 with
                                                     Criminal Appeal No.251/2003
                                            1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                                            
                            CRIMINAL APPEAL NO.250 OF 2003




                                                    
     Manoj Nivruttirao Chavan,
     Age 22 years, Occu. Education,




                                                   
     R/o Brahman Galli Basmathnagar,
     Tq. Basmathnagar, District Hingoli             ...      APPELLANT

              VERSUS




                                         
     The State of Maharashtra
     (Copy to be served on Public
                             
     Prosecutor, High Court of
     Bombay, Bench at Aurangabad)            ...   RESPONDENT
                        .....
     Shri P.R. Katneshwarkar, Advocate for appellant
                            
     Shri K.S. Patil, A.P.P. for respondent
                        .....

                                          WITH
      


                            CRIMINAL APPEAL NO.251 OF 2003
   



     Dr. Gokul Hariprasad Agrawal
     Age 45 years, Occu. Medical Practitioner,





     R/o Basmathnagar, Tq. Basmathnagar,
     District Hingoli                          ...           APPELLANT

              VERSUS

     The State of Maharashtra





     (Copy to be served on Public
     Prosecutor, High Court of
     Bombay, Bench at Aurangabad)                   ...      RESPONDENT

                        .....
     Shri P.R. Katneshwarkar, Advocate for appellant
     Shri K.S. Patil, A.P.P. for respondent
                        .....




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                                                        Criminal Appeal No.250/2003 with
                                                           Criminal Appeal No.251/2003
                                                2

                                      CORAM:        A.I.S. CHEEMA, J.

                                      DATED:        29th June, 2016.




                                                          
     ORAL JUDGMENT :

1. The Criminal Appeal No.250/2003 arises out of Misc.

Criminal Application No.179/2002 and Criminal Appeal

No.251/2003 arises out of Misc. Criminal Application

No.178/2002, against judgment of conviction and sentence under

Section 193 of the Indian Penal Code, 1860, passed by Additional

Sessions Judge, Nanded on 24.3.2003. These are impugned

judgments in these Appeals. The appellants in these two appeals

were witnesses in Sessions Case No.90/1996. Appellant Manoj

Chavan was examined in the said Sessions Case as P.W.4 and

the appellant Dr. Gokul Agrawal came to be examined as P.W.3.

The Additional Sessions Judge, Nanded, before whom the

Sessions Case was conducted, acquitted all the accused in that

matter as it found that it was a case of "No Evidence". In the

said Sessions Case, it appears that, almost all the witnesses

turned hostile including those who were examined relating the

actual incident.

It appears that, the incident had occurred on

9.2.1996. One Rajkumar was working on Dhaba of one Madhav.

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

The prosecution case was that, the accused persons as arrayed in

the Sessions Case had reached the Dhaba in a TATA Sumo

vehicle and in an altercation, due to obstruction by the owner of

the Dhaba and the servants, knife blows were given, in which

Rajkumar and one Kisan Ganpati were injured. Kisan died. Case

of prosecution was that, accused were returning from a marriage

and stopped at the Dhaba and due to altercation incident took

place. At the time of trial, none of the witnesses appear to have

supported the prosecution to the extent that even statement of

accused was dispensed with. Persons who witnessed the incident

and who informed police the vehicle number in which accused

had reached Dhaba also did not support. The Additional Sessions

Judge, in his judgment, dealt with the evidence of the present

appellants in paras 7 and 8 of the judgment. The same is a short

discussion and I will reproduce the same :

"7. In this case, one vehicle was seized. According to P.W.3 Gokul Agarwal, Tata Sumo make vehicle bearing No.MH-22-B/7639 was owned by him. The same was seized in investigation. According to him, he had not given the jeep anywhere, much less

to Pradeep. On 10.2.1996, police had taken the jeep and the driver. He was cross-examined and contradicted with his statement to the effect that he had given jeep and his nephew had gone to attend the marriage. The complete evidence revealed that he wanted to suppress that the vehicle was taken from his house by someone. The number of that vehicle was reported to police station, and the same vehicle was seized in it. It thus appears that he has suppressed the fact of removal of his vehicle from his house on that day. He was further contradicted with

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

his statement that some persons had taken his vehicle at Dhaba. The vehicle was got released by

him, and therefore his denial that it was not given by him is a deliberate attempt to suppress the fact. In view therefore this is a statement made by him which

he knows to be not correct and therefore in my view he has given false evidence.

8. The statement of witness recorded by police is not as such admissible in evidence, but for the

purposes of contradiction or omission. P.W.4 Manoj Chavan said that his sister Manisha was married on 4.11.1998. He was contradicted with his statement that his sister was to be married on 9.2.1996 by name Manisha. He has denied to have made such a

statement. It is a prosecution story that on 9.2.1996 accused persons were to go to Banegaon for

marriage. He has changed the date. It therefore appears that he deposed so, so as to falsify the prosecution story that accused were to attend the marriage of Manisha. This also appears that

statement is made intentionally so as to falsify the prosecution story. One does not know which one is false i.e. whether this piece of evidence of contradictory portion. In my opinion, therefore this also can be taken as a false evidence. I am therefore

of the view that the proceedings can be initiated against these two persons for giving false evidence by

issuing show-cause-notice under Section 344 of Cr.P.C. as to why they should not be punished for such an offence. It is a case of no evidence against the accused and therefore they are entitled for

acquittal. It is not disputed that Kishan died homicidal death. Thus, there was no evidence to link the accused persons for his death and therefore on that count also they are entitled for acquittal."

(Emphasis supplied)

2. The Court then proceeded to acquit accused of that

matter. The Additional Sessions Judge passed orders as above

that a notice under Section 344 of the Code of Criminal

Procedure, 1973 (Cr.P.C. in brief) should be issued to these

appellants to show cause as to why they should not be proceeded

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

against for giving false evidence, punishable under Section 193

of the Indian Penal Code. The record of the Additional Sessions

Court shows that, after passing of such judgment, the presence

of the appellants was secured. A notice was given which has

been marked Exh.1 in the two files which were opened for these

appellants. The notice specified that the appellants had given

false evidence and should remain present on 16.3.2002 in the

Court and say as to why they should not be punished. The

records of the two Misc. Criminal Application Nos.178/2002 and

179/2002 show that the trial Court secured presence of the

appellants and framed charge in the Misc. Criminal Application

under Section 193 of I.P.C. The Charge initially mentioned that,

the appellants had intentionally deposed false and that they were

called upon to explain why they should not be convicted and after

such introduction, the charge framed mentioned that the

witnesses had deposed false intentionally and committed offence

under section 193. In both the Misc. Criminal Applications, the

appellants stated that they did not plead guilty. Thereafter the

two impugned judgments of conviction under Section 344 of

Cr.P.C. for offence punishable under Section 193 of the I.P.C. are

passed which are challenged in these appeals.

3. The learned counsel for the appellants submitted that

the incident for which the sessions trial took place had taken

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

place at a Dhaba. Eye witnesses relating to the incident did not

support the prosecution, but no action was taken against them

and the present appellants, whose evidence was relevant for

periphery purposes, were picked up for action under Section 344

of the Cr.P.C. The learned counsel submitted that, the judgment

passed in Sessions Case does not show that the alleged

contradictions or omissions, on the basis of which the sessions

Court came to the conclusion that false evidence was given, were

duly proved by putting up the same to the investigating officer.

No exhibits were referred of the alleged portions A, B, C, which

were marked in statement to police under section 161 of the

Cr.P.C. The learned counsel submitted that the case of

prosecution was that the accused persons were returning from

marriage of sister of appellant Manoj and when they were at

Dhaba, the incident had taken place. The relevance of the

evidence of Manoj was only to the effect that the accused

persons in the Sessions Case were his friends and he had invited

them to the marriage. The counsel submitted that the Additional

Sessions Judge found fault with the evidence of appellant Manoj

on the basis that he changed the date of marriage of his sister

and contradicted his statement to the police. It is stated that the

Sessions Court found fault with the evidence of Dr. Gokul

Agrawal who was examined to say that his vehicle had been

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

taken by driver Ganpat Bhange who was one of the accused in

the matter. The learned counsel submitted that, if the provision

of Section 344 of the Cr.P.C. is seen, if the trial Court wanted to

proceed against the appellant, the appellants should have been

charged under section 344 and charge could not have been under

section 193 of the Indian Penal Code as has been done. If

Section 193 of I.P.C. was to be applied, Section 340 of Cr.P.C.

would have to be invoked.

As against this, the learned A.P.P. submitted that, it

is a serious matter where in a murder trial, the witnesses turned

hostile. The Sessions Court found that these appellants had

intentionally given false evidence and rightly charged them with

the offence under section 193 and on technical basis benefit

cannot be given to the appellants. According to the learned

A.P.P., the appeals deserve to be dismissed.

5. Before proceeding to discuss the matter, it will be

appropriate to reproduce sub-section (1) of Section 344 of the

Code of Criminal Procedure, which is material for consideration.

344(1). If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and

expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take

cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender, summarily and sentence him to imprisonment for a term which may extend to three

months, or to fine which may extend to five hundred rupees, or with both.

6. It is clear from the reading of sub-section (1) that at

the time of delivery of the judgment, the Magistrate or Court of

Session concerned needs to come to conclusion so as to express

an opinion that the witness had knowingly or wilfully given false

evidence or that he had fabricated false evidence with the

intention that such evidence should be used in the proceeding.

Sub-section (1) requires the concerned Magistrate or Court of

Session to record satisfaction that it was "necessary and

expedient in the interest of justice" that the witness should be

tried summarily for giving or fabricating false evidence. After

recording such finding, it is necessary for the Magistrate or Judge

to take cognizance of the offence. The sub-section requires that,

after this, notice will have to be given as to why the witness

should not be punished for such offence. After giving such

opportunity, the witness can then be tried summarily as per the

provision. It is apparent that, it is not that in every matter

where it is noticed that witness gave some false evidence that

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

action under Section 344 of Cr.P.C. is necessary. The Section

clearly requires the concerned Court to come to the finding that,

"it is necessary and expedient in the interest of justice that the

witness should be tried summarily".

7. Now if the concerned judgment of the Additional

Sessions Judge in Sessions Case No.90/1996 is perused, the

Additional Sessions Judge, in para 6 of the judgment, clearly

came to the conclusion that there was no evidence that the

accused persons in that case had gone to the spot or that the

deceased person died because of the injuries caused by knife.

The Additional Sessions Judge observed that it was a case of no

evidence and statements of the accused were also dispensed

with. Thus, having come to the conclusion that there was no

evidence, worth the name even to record that the accused were

present on the spot concerned, the Additional Sessions Judge

went on to discuss the evidence of P.W.3 Gokul Agrawal and

P.W.4 Manoj Chavan as above, who are the present appellants.

The Additional Sessions Judge referred to the contradictions in

their evidence read with the statement before police. This Court

called the record and proceedings of the Sessions Case

No.90/1996 also, but it appears that, by the passage of time,

rest of the record has been weeded out except the judgment.

However, the learned counsel for the appellant submitted that,

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

when the present appeals were filed, these appellants had

attached simple copies of the statements of these witnesses to

the police and oral evidence of appellants, which was recorded in

that case. As it appears that the statements before police and

the oral evidence recorded in the Sessions Court has been

weeded out, with the consent of the A.P.P. and the learned

counsel for the appellants, I have gone through the statements

of these appellants before police as well as their oral evidence

which was recorded. It appears from the evidence of appellant

Gopal Agrawal that in his cross-examination even Portions A to

were marked. The judgment of the Additional Sessions Judge,

however, does not appear to be referring to any material, which

would show that contradictions and omissions were put up to the

investigating officer and the contradictions and omissions were

duly proved. If Portions A to C have been marked, in the cross-

examination of the investigating officer those portions would get

exhibited, but the judgment of the Additional Sessions Judge

does not show reference to any of such exhibits.

8. The judgment of the Additional Sessions Judge does

not show that he arrived at a finding that it was "necessary and

expedient in the interest of justice that the witnesses should be

tried summarily" for giving or fabricating false evidence. Merely

saying that the witness intentionally gave false evidence would

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

not be enough. Section 344 of Cr.P.C. then required the Court to

take cognizance of the offence while passing the judgment itself.

Even this does not appear to have been done. Thus, I find that

the invoking of section 344 of Cr.P.C. was not correctly done.

9. Coming to the Misc. Criminal Application

Nos.179/2002 and 178/2002, which were registered against the

present appellants, the original record of the trial Court shows

that, notices were issued that the witnesses had given false

evidence and as to why they should not be punished. The record

then shows that, the charge was framed under Section 193 of

the Indian Penal Code and recording plea of the appellants -

accused, impugned judgment was passed holding the appellants

guilty for offence punishable under Section 193 of the Indian

Penal Code.

10. In the present matter, it does not appear that Court

recorded reasons as to why it was necessary and expedient in

the interest of justice to proceed against the witnesses. Record

does not show that after receiving reply to the notices issued

under Section 344 of Cr.P.C., Court recorded anything that it was

not satisfied and it was necessary to "try such offender",

11. In the present matters, the trial Court framed charge

under Section 193 of the I.P.C. and after the accused pleaded not

Criminal Appeal No.250/2003 with Criminal Appeal No.251/2003

guilty, proceeded to pass the impugned judgments with title

"Charge : Under Section 193 IPC" and final order in each of the

matters reads as under:

"(1). The accused is convicted under Section 344 Cr.P.C. for the offence punishable under Section 193 IPC and he is sentenced to suffer

Simple Imprisonment for 3 months and to pay fine of Rs.500/-, in default to suffer simple imprisonment for 7 days."

12. Section 344 of Cr.P.C. is an unique provision which

allows the same Court which held the trial, to take summary

action against the witness for giving or fabricating false evidence.

In a manner, the Section is a Code in itself. The Section provides

as to what would be the requirement at the time of passing

judgment in the trial and the procedure which is required to be

followed thereafter as well as the quantum of punishment which

can be imposed. The Section permits the Court of Session or

Magistrate to make a complaint under Section 340 of Cr.P.C. for

the offence of giving or fabricating false evidence in case the

Court of Session or Magistrate does not choose to proceed under

Section 344 of Cr.P.C. In the present matter, the Court having