Bombay High Court
Sanjay S/O. Baburao Gitte vs The State Of Maharashtra on 5 May, 2017
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.307/2016
Sanjay S/o Baburao Gitte,
Age 24 years, Occu-Education
R/o Dharmapuri Phata,
Tq. Parli-Vaijnath, Dist.Beed. ..Appellant
Versus
The State of Maharashtra,
Through Police Station, Gangakhed
District Parbhani
(Copy to be served on P.P.
High Court of Bombay
Bench at Aurangabad) ..Respondent
-----
Mr.A.T.Jadhavar, Advocate for appellant
Mr.K.D.Mundhe, APP for Respondent-State
-----
CORAM : V.L.ACHLIYA,J.
RESERVED ON : 10/03/2017
PRONOUNCED ON : 05/05/2017.
JUDGMENT :-
1] The appeal raises challenge to judgment and order in
Criminal Miscellaneous Application No.7/2016 passed by
Additional Sessions Judge, Gangakhed. By the impugned
judgment the learned Judge convicted appellant u/s 344 of
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Cr.P.C. for the offence punishable u/s 193 of IPC and
sentenced to suffer S.I. for one month and to pay fine of
Rs.500/- and in default to suffer S.I. for ten days.
2] Before adverting to appreciate submissions advanced, it is
necessary to consider few facts leading to conviction of
appellant for said offence. The appellant was cited as a witness
in Sessions Trial No.47/2012. The appellant was examined as
a prosecution witness no.2. On 2/4/2015 the evidence of
appellant was recorded. Since the cross examination was not
concluded, the case was adjourned. On 17/4/2015, further cross
examination of the appellant was recorded. During cross
examination the appellant deposed that police had not
interrogated nor recorded his statement. He has also stated that
deceased Manisha not made to eat left over food of the
previous day. He has also deposed that deceased Manisha was
not suffering from harassment nor accused demanded an
amount of Rs.1 lakh. He has also deposed that he had not
visited village Paradhwadi on the day of incident. He further
deposed that accused had stated that on previous day he had
deposed on the say of his father.
3] By judgment and order dated 25/1/2016 the accused were
acquitted. While delivering judgment the learned Additional
Sessions Judge held that the appellant accused who was
examined as P.W.2 in said case has intentionally and knowingly
given false evidence before the Court. Learned Additional
Sessions Judge also pleased to direct to issue notice under
Section 344 of Cr.P.C. to appellant and called upon him to
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explain as to why he should not be tried and sentenced
according to law. Pursuant to said order show cause notice
under Section 344 of Cr.P.C. was issued to appellant accused
on 8/2/2015 and he was called upon to state as to why he be
not tried and sentenced for giving false evidence. He was
asked to personally appear and submit explanation on
22/2/2015. On 22/2/2015, the appellant appeared alongwith his
advocate and filed application seeking time to file reply. The
application made by appellant to file reply to show cause notice
was allowed and case was posted on 7/3/2015. However, the
record reflects that though the time was granted to file reply, the
learned Additional Sessions Judge has explained the particulars
and recorded plea of appellant on 22/2/2015. Appellant
pleaded not guilty. The case was posted for filing reply of
accused as well as evidence. The appellant filed reply on
7/3/2015. In reply the appellant has stated that while recording
cross examination by defence counsel he was upset and
therefore certain contradictory statements came to be made on
his part. He has further stated that as the case relates to death
of his own sister, he lost mental peace and while giving answer
he was not in proper state of mind. Therefore, some
contradictory statements came to be made on his part. He
further stated that he first time deposed before the Court and
he had no intention to give false evidence before the Court and
urged to excuse him for the mistake if committed on his part.
The appellant has further stated that he is studying in 12 th
standard and looking to his age and future life he be pardoned
for mistakes and assured that in future he will not commit such
mistakes.
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4] After filing reply, on 7/3/2015 the case was posted on
14/3/2015. On 14/3/2015, the case was adjourned to
21/3/2015. The appellant produced copy of mark sheet of marks
secured in Examination of Diploma in Mechanical Engineering
Part-I. On 22/3/2015, learned Additional Sessions Judge
delivered the judgment and convicted appellant for committing
offence under Section 344 of Cr.P.C. and convicted the
appellant for offence punishable under Section 193 of IPC and
awarded sentence as stated above. Being aggrieved, the
appellant has preferred this appeal.
5] Learned counsel for the appellant strenuously contended
that the conviction of the appellant is not sustainable in law. He
submitted that the learned Additional Sessions Judge has not
followed the procedure prescribed under law. He submitted that
the impugned judgment and order is passed without proper
application of mind and in arbitrary exercise of powers. He
argued that the procedure as required to be followed u/s 344 (2)
of Cr.P.C. was not followed while conducting the proceeding. He
submitted that the manner in which the proceeding was
conducted reflects that the Additional Sessions Judge was pre
determined to convict the appellant. It is pointed out that though
the appellant was granted time to respond to show cause
notice, till 7/3/2015, still the particulars were framed on
22/2/2015. It reflects that the learned Additional Sessions
Judge has not independently applied mind before proceeding to
try the appellant for committing offence u/s 344 of Cr.P.C. and
punishable under Section 193 of IPC. He further submits that
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not only the proceeding has been conducted in gross violation
of procedure prescribed under the law even the principles of
natural justice were not followed. He further submitted that the
appellant has not pleaded guilty to accusation made against
him. In reply the appellant has explained circumstances under
which alleged contradictory statements came to be made on his
part. By no stretch of imagination it can be said that the
appellant has deposed falsely before the Court and that too with
such intention or knowledge to depose falsely to favour
someone. He submits that mere giving certain admission in the
cross examination contrary to facts deposed in the examination
in chief, sufficient to term that the person has knowingly or
intentionally given false evidence before the Court. He therefore
submitted that the judgment and order passed by trial Court is
not sustainable in law. In alternative the learned counsel
submitted that looking to the age, antecedents and character of
the appellant and he being first time offender no harsh
punishment be awarded and urged that in case this court comes
to the conclusion that judgment and order of conviction is
sustainable then benefit under Section 3 of Probation of
Offenders Act may be given to appellant and he be let out on
admonition.
6] On the other hand, learned APP has contended that there
is no procedural flaw and violation of principles of natural justice
on the part of learned Additional Sessions Judge in conducting
the proceeding. He submitted that as the learned Additional
Sessions Judge had opted to proceed to try the appellant
accused on his own the accused has been tried in a summary
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manner as per procedure. He submitted that the show cause
notice alongwith copy of judgment as well as deposition was
served upon appellant. He was given time to respond to show
cause notice. After due consideration of reply filed by the
accused, the learned Additional Sessions Judge convicted the
appellant. In this background the learned APP submitted that
there is absolutely no procedural flaw or violation of principles of
natural justice committed on the part of learned Additional
Sessions Judge in conducting proceeding. He further submits
that looking to the fact that the accused has deposed falsely
before the Court has been duly proved. He therefore urged to
dismiss the appeal.
7] I have carefully considered the submissions advanced in
the light of record and proceeding of the case. The fact is not in
dispute that the sister of appellant i.e. accused deceased
Manisha died on account of suicide and the case was registered
under Section 498-A, 306 r/w 34 of IPC in which the statement
of appellant-accused was recorded as a witness for prosecution.
The fact is also not in dispute that the appellant accused was
examined in said case as PW-2. His evidence was recorded on
2/4/2015. His examination in chief as well as cross examination
was recorded on that day. As the cross examination was not
concluded the case was adjourned. On 17/4/2015 the further
cross examination was recorded. It is the matter of record that
in examination in chief recorded on 2/4/2015 the appellant has
deposed that accused had demanded Rs.1 lakh for construction
of house and during his visit deceased sister Manisha told him
about the ill treatment and harassment which she was facing in
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her matrimonial home at the hands of accused. He has also
deposed that deceased Manisha told him that she was kept
without food and made to work in agricultural field that too
without food. He gave understanding to Manisha that he would
talk to her in laws and lateron alongwith his father and other
persons visited the accused on 9/8/2012 and told the accused
that they are not in a position to meet their demand. It appears
from the cross examination of witnesses that the defence
brought on record that the material facts deposed by appellant
were by way of omissions and material improvements. Further
cross examination of the witness was recorded on 17/4/2015 in
which he admitted that police did not interrogate nor recorded
his statement . He further deposed that he did not know as to
what was written in his statement. He gave admission that
deceased Manisha was not suffering from harassment from
accused and so also they had not demanded Rs.1 lakh and his
father filed report after consultation with political persons and
advocate from Parli. He deposed that he had no personal
knowledge about relationship between his sister Manisha and
accused. He further deposed that he had not visited village
Paradhwadi on the day of incident. He further admitted that on
the previous occasion he deposed on the say of his father.
8] Now the crucial question is whether certain admissions
given in the cross examination by the witnesses is sufficient to
convict a person for offence under Section 193 of IPC.
Section 193 of Indian Penal Code reads as under :
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"Section 193-. 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 de-
scription for a term which may extend to
three years, and shall also be liable to fine. "
Section 344 of Cr.P.C. provides the procedure to be
followed for trial of person giving false evidence. Section 344 of
Cr.P.C. reads as under :
344. Summary procedure for trial for
giving false evidence - (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 willfully given false evidence
or had fabricated false evidence with the
intention that such 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
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three months, or to fine which may extend to
five hundred rupees, or with both.
(2) In every such case the Court shall
follow, as nearly as may be practicable, the
procedure prescribed for summary trials.
(3) Nothing in this section shall affect the
power of the Court to make a complaint under
section 340 for the offence, where it does not
choose to proceed under this section.
(4) Where, after any action is initiated under
sub-section (1), it is made to appear to the
Court of Session or Magistrate of the first
class that an appeal or an application for
revision has been preferred or filed against
the judgment or order in which the opinion
referred to in that sub-section has been
expressed, it or he shall stay further
proceedings of the trial until the disposal of
the appeal or the application for revision, as
the case may be, and thereupon the further
proceedings of the trial shall abide by the
results of the appeal or application for
revision.
9] Plain reading of Section 344 of Cr.P.C. spell out that in
order to act under Section 344 of Cr.P.C. the Magistrate or a
Court of Sessions before whom the judicial proceeding has
been conducted in first instance he has to form prima facie
opinion that witness appeared in proceeding before him
knowingly or willingly given false evidence or fabricated false
evidence with intention that such evidence should be used in
such proceeding. It also required that such Magistrate or Court
of Sessions should satisfy himself that in the interest of justice it
is necessary and expedient that such witness should be tried
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summarily for giving or fabricating such false evidence. After
forming such opinion, the Magistrate or Court of Sessions is
expected to give reasonable opportunity to such person to show
cause as to why he should not be tried and punished for such
act. It is expected that the show cause notice must be issued to
such an offender and he be given opportunity to explain as to
why he should not be punished for such offence of giving
false/fabricated evidence. After considering the response to
show cause notice if the Magistrate or the Court of Sessions
decides to proceed on its own to punish the person, then it is
obligatory on his part to try the offender summarily and the
procedure prescribed for conduct of summary trial be followed.
Instead of trying the offender by such Magistrate or Additional
Sessions Judge before whom such act of giving false evidence
or fabricated evidence has taken place, he may direct to file
complaint under Section 344 of Cr.P.C. Thus for punishing a
person in such proceeding, it is necessary to establish that
accused had intentionally given false evidence in the judicial
proceeding.
10] Now the question which poses for my consideration is
whether giving inconsistent evidence in a judicial proceeding
itself amounts to commission of offence of giving false evidence.
I am of the view that mere showing that the contradictory
statements have been made in the examination in chief and the
cross examination itself not sufficient to attract the offence of
giving false evidence. The very purpose to make cross
examination is to demolish the case of other side and bring such
evidence so as to discredit the testimony of the witness. Only
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for the reason that witness has deposed certain facts in
examination in chief and during the cross examination given
certain admission contrary to the facts deposed by him in the
examination in chief itself not sufficient to term the act of such
person as giving false evidence. If we read Section 344 of
Cr.P.C. as well as Section 193 of IPC then mere giving
inconsistent statement in examination in chief and cross
examination itself not amount to act of giving false evidence. In
order to invoke the provisions of Section 344 of Cr.P.C. to
convict the person u/s Section 193 of IPC, there must be a case
of deliberate act to depose falsely on the part of witness. There
must be intention on the part of the accused to depose falsely
so as to use such evidence in judicial proceeding. Only in the
event the person is proved to have intentionally given false
evidence liable to be punished u/s 193 of IPC.
11] In order to appreciate as to whether there was any
inconsistent statement made by the appellant and that too with
such intention to depose falsely to favour the accused or
prosecution, I have thoroughly perused the examination in chief
as well as the cross examination of witness recorded on
2/4/2015 and 17/4/2015. No doubt in examination in chief
recorded on 2/4/2015, the appellant-accused has deposed that
at the time of Nagpanchami the deceased Manisha had come
to their house and at that time she had disclosed that her
husband and in laws had demanded Rs.1 lakh for the
construction of house which was in progress. She further
disclosed that she was made to work in the field that too without
food. He has also deposed that he told his sister that he would
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talk to her in laws and lateron he alongwith his father and other
relatives visited the house of accused and told them that they
have no capacity to meet their demands and left Manisha to her
matrimonial house. He further deposed that accused were told
not to ill treat Manisha. The material fact as deposed by the
witness in his examination in chief recorded on 21/4/2015 reads
as under :
"2] For about 15 days accused treated
Manisha properly. Manisha came to our house
for the festival of Nagpanchami. She told that
her in-laws harassed her. She disclosed the
names of her husband, father in law and mother
in law. She told that the construction of the
house of accused was going on and the
accused demanded Rs.1,00,000/-. She also
told that she was directed to perform work in
the field without food. She also told that she
was kept hungry and she was beaten. We
have given understanding to Manisha that we
would talk with her in laws. My maternal uncle
Shanik Motiram Holambe, Gangadhar Gutte, I
myself and my father reached Manisha to the
house of accused. We reached her to the
house of accused on 9.8.2012. We gave
understanding to the accused that we do not
have capacity to meet their demand. We left
Manisha at the house of accused and return
back. We also told accused persons not to ill
treat Manisha."
12] In cross examination conducted on 2/4/2015, the witness
has given number of admissions. In response to the Court
question itself the witness has deposed that he was out of
station due to his work therefore, he does not know about the
facts regarding settlement of marriage of his sister with
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accused. He further deposed that he came one month prior to
marriage of his sister to help his parents to make arrangements
of marriage. From function of engagement till marriage he was
at Parli with his parents. He further deposed that he does not
know about the ornaments purchased by accused for Manisha
after the engagement. He further deposed that he did not know
as to which ornaments were purchased for the marriage of his
sister. He used to confine himself to the work assigned to him.
In cross examination he has admitted that he has stated before
police that accused no.1 to 3 used to ill treat his sister Manisha.
He has further deposed that before police he stated that
Manisha told him that for the purpose of construction of house
accused had asked to bring Rs.1 lakh. He has further deposed
that he has deposed before the police that Manisha was brought
on motor cycle upto main road and lateron taken to hospital of
Dr.Mundhe. He deposed that he is unable to say as to why
such facts not find place in his statement recorded by police. He
admitted that he had not stated before the police that they had
given understanding to Manisha that they would give
understanding to her in laws. In cross examination recorded on
2/4/2015, the witness has deposed in para 9 as under :
9] I had stated before police that accused
No.1 to 3 used to ill treat Manisha. I cannot say
why this fact is not mentioned in my statement. I
had stated before police that Manisha told that the
accused told her that the construction of the house
is in progress and to bring Rs.1,00,000/-. I cannot
say why this fact is not mentioned in my statement
before police. I had not stated before police that
we told Manisha that we would give understanding
to her in laws. I had stated the time of receiving of
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the phone call in my statement. I had stated
before police that we brought Manisha by motor
cycle upto main road and from there taken her to
the hospital of Dr.Mundhe by auto rickshaw. I
cannot say why this fact is not mentioned in my
statement. I had not stated before police that
accused persons deterred (Parawratta) Manisha
to commit suicide. I had not stated the word
"Parawratta" now shown to me in my statement. It
is marked portion "A".
13] Thus if we consider the cross examination of witness
recorded on 2/4/2015 then defence has brought on record that
the material facts deposed by the witness about the ill
treatment, harassment to his deceased sister Manisha on
account of demand of money of Rs.1 lakh were missing from his
statement recorded by police and the witness has deposed the
same first time before the Court. Bringing such evidence in
cross examination very much falls within the ambit of cross
examination. The admissions given by accused in the cross
examination are not sufficient to infer that the witness has
deliberately contradicted himself to give false evidence.
14] The appellant-accused has been subjected with an
accusation that on 17/4/2015, when his further cross
examination was recorded he has deposed facts contradictory
to facts deposed in his examination in chief. Cross examination
of witness recorded on 17/4/2015 reads as under :
"12] I was not with Manisha when she
returned after Panchami to Paradhwadi. On
the same day in the evening I received phone
call of Manisha that she was not feeling well
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at Parawadhwadi and to take her to Parli.
Therefore, on the next day i.e. on 10.8.2012
my father went to Paradhwadi by motor cycle
and brought Manisha to Parli. She had taken
lunch at about 10 a.m. at our house and she
was well till about 2 p.m. At about 4 p.m.
Manisha suffered from dysentery and
vomiting. We had given home remedies to
her. However, her health did not improve and
she become weak. Looking to her weakness,
we had taken her to the hospital at
Ambajogai.
13] I was out of Parli for my work
therefore, I do not have personal knowledge
as to how Manisha was cohabiting with her in
laws at Paradhwadi. Till Manisha was
reached to the house of her in laws after
Panchami I was not aware of any complaint of
Manisha against her in laws. At the time of
panchami from the talks of Manisha my family
members were satisfied about her matrimonial
life. The accused had constructed four rooms
in RCC, two years prior to marriage. Two
brothers of accused No.1 reside in newly
constructed house. In the old house
consisting of two rooms, Manisha and
accused no.1 were residing. Police did not
interrogate me and not recorded my
statement. I do not know what is written in my
statement. Deceased Manisha had eaten left
over food of yesterday. Manisha was not
suffering any harassment from accused and
they have not demanded Rs.1,00,000/-. My
father filed the report with consultation of
political persons and the advocate at Parli. I
do not have personal knowledge as to how
deceased Manisha and accused were
residing. I had not visited viilage Paradhwadi
on the day of incident. Deceased Manisha
was not unconscious at Paradhwadi. On
previous date I deposed false on the say of
my father. "
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15] If we consider the cross examination recorded on
17/4/2015 as noted above, in my opinion such admission
brought in the cross examination itself not sufficient to draw a
conclusion that witness has intentionally given false evidence. In
fact very purpose of cross examination is to demolish the case
of the prosecution and to establish the defence of the accused
as well to elicit truth from the mouth of the witness. In the cross
examination of the witness made on 2/4/2015, it has been
brought on record that material facts deposed by the witness
were not stated in his previous statement made to police during
the course of investigation. It was brought on record that the fact
deposed by witness were by way of material improvement. By
further cross examination made on 17/4/2015, the witness was
made to admit that deceased was not suffering from such
harassment. If the witness has admitted that he has deposed
the facts regarding harassment to his sister in his examination in
chief on the say of his father then witness cannot be said to
have given false evidence and that too intentionally. In my view
the admission given by accused that facts deposed by him
earlier i.e. in examination in chief deposed on the say of his
father itself amounts to telling the truth to the Court by the
witness. Such admission cannot be construed as an admission
of intentionally giving false evidence in the case. In my view,
the said admission ought to have interpreted in a sense that
witness has told the real truth before the Court.
16] For initiating proceeding u/s 344 of Cr.P.C. and punishing
person u/s 193 of Cr.P.C. mere giving false evidence is not
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sufficient. There are many instances in judicial proceedings
when Court would come across witnesses making contrary
statements. It would not be advisable nor feasible to lodge
proceeding against all such witnesses. It is only when the Court
is of the opinion that a witness has "willfully or intentionally"
given false evidence and the Court considers that action against
such person is necessary in the interest of justice then only
such action is contemplated. As discussed, admission given by
the appellant that certain facts deposed by him in his
examination in chief were not correct and deceased had no ill
treatment and harassment, cannot be treated as intentional act
of the accused to depose falsely.
17] The appellant has explained the reason as to why he
deposed so in his examination in chief. He has categorically
deposed that in examination in chief he deposed as per say of
his father. Thus the facts deposed by the accused on
17/4/2015, ought not have been construed in a sense that the
appellant has intentionally given false evidence. The incident
relating to suicide of the deceased sister of appellant was
occurred in the year 2012. The testimony of the witness was
recorded after a period of about 2½ years of incident. In his
examination in chief the witness has disclosed his occupation as
student and prosecuting study. At the time of incident the
deceased was about 20-21 years of age. If we read the
examination in chief as well as cross examination of the
witness, then it exposes that the witness deposed in a confused
state of mind and probably being tutored and made to depose in
a manner his father wanted to depose before the Court. In fact
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in the cross examination made on 2/4/2015 it has been brought
on record that witness was not knowing much about the incident
and harassment to deceased and the material facts deposed by
him about the ill treatment and harassment were by way of
material improvement. In cross examination made on
17/4/2015, the defence has strengthened its case by bringing
categorical admission that deceased had not disclosed anything
to appellant about the ill treatment and harassment. Defence
has brought on record that the fact deposed about ill treatment
and harassment by the witness was at the behest of his father.
Therefore the truth being brought on record through the cross
examination should not have been made basis to convict the
appellant. It is an expected role of the defence to bring such
inconsistencies in the testimony of witness to discredit his
testimony. Only for the reason that inconsistencies have been
brought on record itself not sufficient to form the opinion that
the witness has intentionally or knowingly given false evidence.
In my view the admission brought on record that the appellant
has deposed at the instance of his father itself amounts to act of
deposing truth before the Court by appellant and cannot be
treated as an act of intentionally giving false evidence. In this
view I am of the view that offence of giving false evidence not
proved beyond doubt against the appellant-accused.
18] In view of conclusion arrived, the Appeal filed by appellant
deserves to be allowed. Accordingly the Appeal is allowed in
terms of prayer clause "C". The judgment and order dated
22/3/2016 passed in Criminal Miscellaneous Application
No.7/2016 by Additional Sessions Judge, Gangakhed is set
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aside. The conviction of the appellant is set aside. Fine amount
if any paid be refunded to the appellant. Bail bonds of appellant
stands discharged.
(V.L.ACHLIYA,J.)
umg/
