The true test for determining whether statement is false or
not 'is whether two statements are contradictory or irreconcilable to
each other.' Certainly, the amount can either be paid as an illegal
gratification or it can be paid for laying of water pipeline [legitimate
purpose]. It cannot be for both the purposes. This test is certainly
satisfied.
20] When we tried to satisfy another test of 'willful/knowingly'
disclosure, we find that the case fails on this forum. It means, the
witness must tell the contrary fact knowingly or willfully. According to
evidence, it is a second statement which is false.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.699 OF 2006
Shri Manikrao s/o Shivram Wagh, Vs The State of Maharashtra,
C ORAM : S.M. MODAK, J.
PRONOUNCED ON : 16 th FEBRUARY, 2019.
Adjudicating rights and liabilities of litigants is the
prerogative of Courts. Always, there are more than two parties before
the Court. Be it civil litigation or criminal prosecution. One party
asserts and another party denies and in this process of churning, what
results is the final outcome. We call it as outcome of justice. In this
process,a churning, Court acts as a third person. But, some time
there are occasion for the Court to relinquish their job of independent
third party adjudicator and to become law settler. Such occasion
arises when wrong/sins are committed in the proceedings of court and
before the open eyes of the Court. And for maintaining the justice
delivery system in fact, Court on its own is required to set the law into
motion.
02] One of such occasion is when the witness attended the Court
proceeding for giving evidence, tells one fact at one time and totally
inconsistent fact at other time. With this somersault by this witness,
Court resorts to its jurisdiction of punishing perjurer.
03] There was such an occasion for a Special Judge (under the
Prevention of Corruption Act), Akola. He dealt with a Special Case
No.4/1999 against one Samadhan Bhusari. He was tried for
demanding Rs.500/- from complainant Ganesh Deshmukh. Raid was
successful on 24/04/1998 in the Office of MHADA at Akola. Present
appellant is one of the trap panch.
04] All went well till the time of recording of evidence. It also
went well till the time Prosecutor Incharge questioned appellant/
panch-witness. But, when defence cross-examined appellant, he
started saying different inconsistent stand about trap. During chief,
he said money was demanded for release of allotment of tenement in
favour of complainant (as expected by the prosecution). But, during
cross-examination, appellant suggested the possibility of accepting
the amount was for procurement of water supply line.
05] On closing of evidence and at final stage, Special Judge,
Akola acquitted Samadhan Bhusari on 20/06/2005 for the offences
under Sections 7, 13(1)(d) of the Prevention of Corruption Act. Special
Judge was perturbed due to somersault of appellant and had chosen
to resort to the jurisdiction (and rightly so) bestowed under the
provisions of Section 344 of the Cr.P.C. He directed to seek appellant's
explanation for initiating action for giving false evidence.
06] The written explanation given by the appellant does not find
favour with the learned Special Judge. Finally, he sentenced him to
simple imprisonment for one month and inflicted fine of Rs.200/-.
Appellant has to undergo 15 days simple imprisonment, if fine amount
is not paid. Appellant has challenged the correctness of this judgment
before me. Learned Advocate Shri Rohit Vaidya for appellant and
learned Additional Public Prosecutor Shri M.J. Khan argued the matter.
I have gone through the record made available. So too, I perused
various judgment placed before me.
07] I have crystallized the issues. Broadly, they are procedural
aspects and substantive aspects. So, the issues can be classified as
(1) whether the learned Special Judge followed the procedure laid
down under Section 344 of the Code of Criminal Procedure and (2)
whether the act of appellant really falls under the ambit of 'giving
false evidence'.
COMPLIANCE OF PROCEDURE :
08] When a person comes to the Courts and offers himself as a
witness, it is expected that he will speak truth as per his
understanding. In a criminal prosecution, evidence of prosecution
witness plays important role because his evidence is one of the
determining factor for deciding the guilt. At the same time, law does
not compel a witness to depose particular fact only. Before expressing
any opinion on merits, something needs to be said about procedural
aspect.
09] Broadly, there are two remedies available when a person
commits perjury. One is under Section 340 and another is under 344
of Cr.P.C. They are included under the Chapter XXVI “PROVISIONS AS
TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE”. If we
read both the provisions, we may find that scope of Section 340 is
much wider than the scope of Section 340 of Cr.P.C. When remedy
under Section 344 of Cr.P.C. is resorted, summary inquiry is
contemplated whereas wordings of Section 340 of Cr.P.C. does not say
so. Court seized of the matter exercises power under Section 344 of
Cr.P.C. at the time of delivery of judgment/final order. Whereas, it is
not so under Section 340 of Cr.P.C. Furthermore, Court seized of the
matter only punishes the perjurer under Section 344 of Cr.P.C.
Whereas, Court seized of the matter conducts an inquiry, lodges a
complaint and some different court tries the perjurer and punishes
him under Section 193 or other sections of I.P.C. One more
distinguishable factor is punishment. It is prescribed in Section 344
of Cr.P.C. itself. This is a rare section in Code of Criminal Procedure
which lay down the punishment.
10] This attempt is made to make the stakeholders aware about
difference in procedure in two remedies. Learned Special Judge has
decided to take recourse to the power under Section 344 of Cr. P .C.
On minute reading, we find the following requirements of Section 344
of Cr.P.C. -
(a) the witness had given false evidence,
(b) he gave it willfully/knowingly,
(c) he gave it with intention of using it in such proceeding,
(d) Court forms an opinion about giving of false evidence by
such witness,
(e) it is necessary and expedient in the interest of justice to
try the witness summarily.
On fulfilling above conditions, the Court should -
(a) give reasonable opportunity to show cause against
possible conviction.
(b) then sentence him appropriately.
SUBSTANTIVE LAW :
11] Always there is tendency to confuse in between the two
different procedures laid down under Section 340 and under Section
344 of Cr.P.C. There is also tendency to confuse oneself on the
question of sentence. There are various offences those can be
inquired under Section 340 of Cr.P.C. read with Section 195 of Cr.P.C.,
one of them is giving false evidence defined under Section 193 of
Cr.P.C. There is punishment up to seven years and unrestricted fine
amount. Whereas, Section 344 of Cr.P.C. (which is procedural as well
as substantive in nature) lays down three months imprisonment or
Rs.500/- fine amount or with both.
12] Before commenting on merits, we must appreciate the
courage shown by learned Special Judge in proceeding under Section
344 of Cr.P.C. against this appellant. But, the issue does not stops
there. There should be restraint on emotions in exercising with such
power and almost precaution is to be taken in compliance of
procedure and satisfaction of substantive law. Otherwise, there is a
tendency of overlooking procedural requirement, during the zeal to
punish perjurer.
GIVING OF FALSE EVIDENCE :
13] It is defined under Section 191 of I.P.C. and punishable under
Section 193 of I.P.C. Broadly the ingredients of Section 191 of I.P.C.
will have to be considered prior to satisfaction under Section 344(1) of
Cr.P.C. Before going into the ratios laid down in the citations, it will be
material to consider the facts of the case.
FACTS OF THE CASE :
14] It includes (a) foundation of trap case, (b) prosecution
evidence in Special Case No.4/1999, (c) the observations in the
judgment and (d) explanation of appellant.
[a] Foundation of Trap Case :
Complainant Ganesh Deshmukh was allotted a tenement in
middle income group scheme of MHADA, Akola. He has to receive the
possession. The Junior Engineer Samadhan Bhusari of MHADA was
dealing with that work. In spite of repeated follow up, complainant
Deshmukh did not receive the possession. Accused Bhusari
demanded illegal gratification. This compelled Deshmukh to approach
the office of Anti Corruption Bureau at Akola. The trap was laid on 27th
April, 1998 in the office of accused Bhusari. In this trap, the present
appellant acted as a panch witness.
There are two versions. Rs.500/- is accepted as illegal
gratification. This is the prosecution version. Whereas, the accused
Bhusari through cross-examination of panch-witness/present appellant
brought on record a different reason for accepting the amount. It was
for the purpose of laying of water pipe line.
[b] Prosecution Evidence :
There were three witnesses examined. It includes
complainant Deshmukh [PW-1]. It includes present appellant as a trap
witness [PW-2]. Ganesh Meghe, Chief Executive Officer of MHADA is
examined as PW-3 (Sanctioning Authority).
[c] Observations in the Judgment :
Learned Special Judge for various reasons acquitted accused
Bhusari. It includes bona fides of complainant Deshmukh. It includes
genuineness of purpose for which Rs.500/- was offered. It includes
non-examination of clerk Shri Lanjewar and Peon Shri Patil (who were
present at the time of trap). It includes accused Bhusari was not
exclusively incharge of allotment work.
The learned Special Judge on one hand acquitted accused
Bhusari, on the other hand directed to call explanation of present
appellant vide his order dated 20th June, 2005.
[d] Explanation of the Appellant :
He requested the learned Special Judge to give him more
time as he intends to prefer an appeal against the order calling
explanation. The learned Special Judge was pleased to refuse the
request for two grounds. One is the period of appeal was already over
and no supporting documents were filed. The reason for accepting
Rs.500/- by the accused Bhusari was illegal gratification and it was in
fact the mistake of the present appellant and the reason was
otherwise and i.e. laying up water pipe line. The appellant realizes
this mistake when he was cross-examined on behalf of accused
Bhusari's Advocate. According to him, he was not emphatic in giving
the explanation for Rs.500/- towards supply of water pipe line. But,
according to him, he has expressed only the possibility when crossexamined
by Bhusari's Advocate. He has also expressed leniency on
the ground of his insufficient education and caste.
CONCLUSION :
15] For better understanding, I would like to reproduce the facts
stated by the appellant in his evidence before the learned Special
Judge. It is material to state that he was first examined by the
Prosecutor Incharge, then cross-examined by Bhusari's Advocate and
then again cross-examined by the Prosecutor Incharge. The relevant
answers are as follows :
Answer given during chief-examination
Then the complainant asked to hand over the
possession of tenement by showing the
allotment order. Bhusari then asked as to how
Ganesh Deshmukh approached to Amravati
Office, instead of Akola Office. Then he asked
as to whether the amount of Rs.500/- was
brought for the possession. Ganesh Deshmukh
answered it in affirmative. Then Shri Bhusari
came out of room. We followed him. Then he
entered the office again by another door. Then
he stood aside the cupboard. We followed him.
Then he demanded the amount. Then Ganesh
Deshmukh took out the amount with his right
hand and paid the amount to the accused.
Answer given during cross-examination by defence :
Question : Whether it is correct to say that the
complainant was asked by the accused to
pay the amount to the contractor and then
the complainant suggested the accused to
pay the amount and then paid the said
amount to the accused ?
Answer : The complainant paid the said amount.
Question : Whether it is correct to say that the
complainant Ganesh Deshmukh paid the
amount for the work done for the pipe line?
Answer : The amount paid can be for the said
purpose.
Answers given during cross-examination by the
Prosecutor Incharge
Question: In examination in chief, you have deposed
that the amount was demanded for handing
over of possession and today you have
deposed that the amount was demanded for
the work of laying down pipe line, which
statement out of the two is correct?
Answer : My today's statement is correct.
It is true that my earlier statement that the
amount was demanded for possession is
false.
16] If we read the answers as reproduced above, we may find
that answers during Chief-Examination were given on the basis of
what appellant had seen and heard at the time of trap. It was
conducted on 27th April, 1998, and on that basis, appellant testified in
Court. It will also be material to consider under which background the
appellant gave answers during cross-examination conducted on
behalf of accused, Bhusari.
17] The amount paid by complainant, Deshmukh, to accused,
Bhusari, may be for laying of water pipeline. The evidence of
appellant needs to be read as a whole when the raiding party visited
the office, accused, Bhusari, was not present. He came at 2.30 p.m.
So, raiding party waited there for two-and-half-hour. For all these
hours, there was interaction between complainant, Deshmukh, and
present appellant. The discussion ranges from the topic of documents
required, type of construction, amenities, location etc. Even appellant
learnt that water and electricity supply was to be arranged.
18] So, the appellant expressed the possibility of payment on the
basis of his interaction with complainant, Deshmukh. So, the two
answers given by appellant were on the basis of two different sources.
First is what he saw and heard at the time of trap. Second is what he
interacted with complainant, Deshmukh. If we categorize the kind of
evidence under which these answers fall, we will come to know that it
is an oral evidence [as compared to documentary evidence]. That is
to say what is heard by the appellant.
19] The true test for determining whether statement is false or
not 'is whether two statements are contradictory or irreconcilable to
each other.' Certainly, the amount can either be paid as an illegal
gratification or it can be paid for laying of water pipeline [legitimate
purpose]. It cannot be for both the purposes. This test is certainly
satisfied.
20] When we tried to satisfy another test of 'willful/knowingly'
disclosure, we find that the case fails on this forum. It means, the
witness must tell the contrary fact knowingly or willfully. According to
evidence, it is a second statement which is false. As discussed above,
there is a reason for the appellant to give explanation for payment of
Rs.500/- and it being for laying of water pipeline. He gave it as per
interaction between him and complainant, Deshmukh. So, we can
certainly say that there is some foundation for that. Under such
circumstances, it cannot be said that second statement was
willful/with knowledge. Learned Special Judge has not considered this
aspect.
21] In this background, if we will consider the reasoning for
acquitting the accused, Bhusari, we will come to know that learned
Special Judge opined that the amount might have been accepted for
obtaining water supply. When prosecution adduces evidence, the
materials must fall within the definition of “legally accepted
evidence”. Unless and until legally admissible evidence is produced,
prosecution materials cannot be considered. In other words, merely
because any accused is acquitted, it does not mean that he has not
committed that offence. As said above, failure of the prosecution to
examine Lanjewar and Patil is one of the ground for acquittal. It also
includes lack of bona fide on the part of complainant, Deshmukh. He
was already having a tenement and he feared about cancellation of
allotment. On considering the reasons quoted by learned Special
Judge while acquitting the accused, Bhusari, learned Special Judge,
apart from considering above reasons, also considered probable
reason for payment as for laying water pipeline. Learned Special
Judge could have discarded the explanation given by this appellant
about payment. But, when he has accepted it, then it may not wise to
initiate action against him. If it is so, then I do not think that it will be
proper to call explanation of present appellant. Admittedly, nothing is
produced on record to show that the acquittal of accused, Bhusari, is
challenged on behalf of the prosecution. So, on this aspect also, the
learned trial Judge has erred.
22] In case of Empror Vs. Bankatram Lacchiram reported in
ILR 1904 28 (Bom) 513, the two depositions given after a gap of time
were the foundation for initiating action for the perjury. The ratio of
this judgment is that the circumstances under which a witness gives
answer at a particular point of time and at a later point of time needs
to be considered. A witness always deposes by recollecting his
memory and belief. It will also be material to consider the evidence
as a whole and not the objectionable answers isolately.
23] In case of Empror Vs. Ningappa Ramappa Kurbar
reported in ILR 1942 (Bom) 26, the witness deposed a particular fact
in a statement under Section 164 of Criminal Procedure Code, 1898
and deposed a contrary fact before committing Magistrate was the
foundation. Only when Court finds later statement to be untrue, then
only prosecution can be justified.
24] Similar occasion arose in case of K. K. Gupta Vs.
Devkumar Agrawal [2014 ALL MR (Cri.) 3869]. The appellant made
a particular statement when his statement was recorded by Income
Tax Officer at the time of search. Whereas at a later point of time
while submitting Income Tax Return, he claimed ownership over
certain articles. There was a private complaint for perjury. The
appellant was acquitted for the reason that mere contradiction in two
statements is not sufficient, but prosecution need to prove falsehood.
25] On the other hand, learned Addl. Public Prosecutor relied
upon the judgment in case of In Re : Suo Motu Proceedings
against R. Karuppan, Advocate [(2001) 5 SCC 289]. One Advocate
from Madras made a false complaint about verification of the age of
Dr. Justice A.S. Anand in an affidavit. Hon'ble Supreme Court
emphasized on decline in moral values and erosion of sanctity of oath.
There was a direction to file complaint under Section 193 of Indian
Penal Code.
26] There cannot be any doubt that Court being the guarantor
and protector of justice delivery system has to be cautious while
encouraging truthful evidence. And, whenever the sanctity of oath is
being misused for telling lie, the Court has to intervene and to set the
law in motion. In case before us, I find that the learned Special Judge
was courageous enough to initiate action for perjury, but, he lost sight
to the fulfillments of ingredients of giving false evidence.
27] There is one more issue wherein the learned Special Judge
has failed. Satisfaction is required at two stages. One is at the time of
calling of explanation and second is at the time of final order. The
decision to call explanation can be seen from the direction given in
the operative order dated 20th June, 2005. But, if the entire judgment
of acquittal is perused, we do not find any observation why there is a
need to proceed against the appellant and that too in the interest of
justice. While showing the zeal to proceed for perjury, learned Special
Judge has overlooked to this procedure requirement. So also, while
convicting the appellant, I do not find any reasoning as to how he
arrived at giving false answer knowingly. Merely saying that he gave
false answers knowingly is not sufficient unless supported by
reasoning. On this count also, the impugned judgment cannot be
sustained.
28] For all these reasons, I conclude that the decision cannot be
sustained, mainly for the reason of non-fulfillment about the condition
as to willful or knowingly giving false answer. It also fails for recording
satisfaction for initiating action and supporting the conclusion by
giving reasons. So, I am inclined to allow the appeal. Hence order -.
(i) The appeal is allowed.
(ii) The judgment dated 4th December, 2006 passed in Misc.
Criminal Application No.440 of 2005 convicting the
appellant under Section 193 of Indian Penal Code is set
aside.
(iii) Fine if paid, be returned to the appellant. [iv] The
appellant is discharged from personal bond and surety
bond.
(S.M. Modak, J.)
Print Page
not 'is whether two statements are contradictory or irreconcilable to
each other.' Certainly, the amount can either be paid as an illegal
gratification or it can be paid for laying of water pipeline [legitimate
purpose]. It cannot be for both the purposes. This test is certainly
satisfied.
20] When we tried to satisfy another test of 'willful/knowingly'
disclosure, we find that the case fails on this forum. It means, the
witness must tell the contrary fact knowingly or willfully. According to
evidence, it is a second statement which is false.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.699 OF 2006
Shri Manikrao s/o Shivram Wagh, Vs The State of Maharashtra,
C ORAM : S.M. MODAK, J.
PRONOUNCED ON : 16 th FEBRUARY, 2019.
Adjudicating rights and liabilities of litigants is the
prerogative of Courts. Always, there are more than two parties before
the Court. Be it civil litigation or criminal prosecution. One party
asserts and another party denies and in this process of churning, what
results is the final outcome. We call it as outcome of justice. In this
process,a churning, Court acts as a third person. But, some time
there are occasion for the Court to relinquish their job of independent
third party adjudicator and to become law settler. Such occasion
arises when wrong/sins are committed in the proceedings of court and
before the open eyes of the Court. And for maintaining the justice
delivery system in fact, Court on its own is required to set the law into
motion.
02] One of such occasion is when the witness attended the Court
proceeding for giving evidence, tells one fact at one time and totally
inconsistent fact at other time. With this somersault by this witness,
Court resorts to its jurisdiction of punishing perjurer.
03] There was such an occasion for a Special Judge (under the
Prevention of Corruption Act), Akola. He dealt with a Special Case
No.4/1999 against one Samadhan Bhusari. He was tried for
demanding Rs.500/- from complainant Ganesh Deshmukh. Raid was
successful on 24/04/1998 in the Office of MHADA at Akola. Present
appellant is one of the trap panch.
04] All went well till the time of recording of evidence. It also
went well till the time Prosecutor Incharge questioned appellant/
panch-witness. But, when defence cross-examined appellant, he
started saying different inconsistent stand about trap. During chief,
he said money was demanded for release of allotment of tenement in
favour of complainant (as expected by the prosecution). But, during
cross-examination, appellant suggested the possibility of accepting
the amount was for procurement of water supply line.
05] On closing of evidence and at final stage, Special Judge,
Akola acquitted Samadhan Bhusari on 20/06/2005 for the offences
under Sections 7, 13(1)(d) of the Prevention of Corruption Act. Special
Judge was perturbed due to somersault of appellant and had chosen
to resort to the jurisdiction (and rightly so) bestowed under the
provisions of Section 344 of the Cr.P.C. He directed to seek appellant's
explanation for initiating action for giving false evidence.
06] The written explanation given by the appellant does not find
favour with the learned Special Judge. Finally, he sentenced him to
simple imprisonment for one month and inflicted fine of Rs.200/-.
Appellant has to undergo 15 days simple imprisonment, if fine amount
is not paid. Appellant has challenged the correctness of this judgment
before me. Learned Advocate Shri Rohit Vaidya for appellant and
learned Additional Public Prosecutor Shri M.J. Khan argued the matter.
I have gone through the record made available. So too, I perused
various judgment placed before me.
07] I have crystallized the issues. Broadly, they are procedural
aspects and substantive aspects. So, the issues can be classified as
(1) whether the learned Special Judge followed the procedure laid
down under Section 344 of the Code of Criminal Procedure and (2)
whether the act of appellant really falls under the ambit of 'giving
false evidence'.
COMPLIANCE OF PROCEDURE :
08] When a person comes to the Courts and offers himself as a
witness, it is expected that he will speak truth as per his
understanding. In a criminal prosecution, evidence of prosecution
witness plays important role because his evidence is one of the
determining factor for deciding the guilt. At the same time, law does
not compel a witness to depose particular fact only. Before expressing
any opinion on merits, something needs to be said about procedural
aspect.
09] Broadly, there are two remedies available when a person
commits perjury. One is under Section 340 and another is under 344
of Cr.P.C. They are included under the Chapter XXVI “PROVISIONS AS
TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE”. If we
read both the provisions, we may find that scope of Section 340 is
much wider than the scope of Section 340 of Cr.P.C. When remedy
under Section 344 of Cr.P.C. is resorted, summary inquiry is
contemplated whereas wordings of Section 340 of Cr.P.C. does not say
so. Court seized of the matter exercises power under Section 344 of
Cr.P.C. at the time of delivery of judgment/final order. Whereas, it is
not so under Section 340 of Cr.P.C. Furthermore, Court seized of the
matter only punishes the perjurer under Section 344 of Cr.P.C.
Whereas, Court seized of the matter conducts an inquiry, lodges a
complaint and some different court tries the perjurer and punishes
him under Section 193 or other sections of I.P.C. One more
distinguishable factor is punishment. It is prescribed in Section 344
of Cr.P.C. itself. This is a rare section in Code of Criminal Procedure
which lay down the punishment.
10] This attempt is made to make the stakeholders aware about
difference in procedure in two remedies. Learned Special Judge has
decided to take recourse to the power under Section 344 of Cr. P .C.
On minute reading, we find the following requirements of Section 344
of Cr.P.C. -
(a) the witness had given false evidence,
(b) he gave it willfully/knowingly,
(c) he gave it with intention of using it in such proceeding,
(d) Court forms an opinion about giving of false evidence by
such witness,
(e) it is necessary and expedient in the interest of justice to
try the witness summarily.
On fulfilling above conditions, the Court should -
(a) give reasonable opportunity to show cause against
possible conviction.
(b) then sentence him appropriately.
SUBSTANTIVE LAW :
11] Always there is tendency to confuse in between the two
different procedures laid down under Section 340 and under Section
344 of Cr.P.C. There is also tendency to confuse oneself on the
question of sentence. There are various offences those can be
inquired under Section 340 of Cr.P.C. read with Section 195 of Cr.P.C.,
one of them is giving false evidence defined under Section 193 of
Cr.P.C. There is punishment up to seven years and unrestricted fine
amount. Whereas, Section 344 of Cr.P.C. (which is procedural as well
as substantive in nature) lays down three months imprisonment or
Rs.500/- fine amount or with both.
12] Before commenting on merits, we must appreciate the
courage shown by learned Special Judge in proceeding under Section
344 of Cr.P.C. against this appellant. But, the issue does not stops
there. There should be restraint on emotions in exercising with such
power and almost precaution is to be taken in compliance of
procedure and satisfaction of substantive law. Otherwise, there is a
tendency of overlooking procedural requirement, during the zeal to
punish perjurer.
GIVING OF FALSE EVIDENCE :
13] It is defined under Section 191 of I.P.C. and punishable under
Section 193 of I.P.C. Broadly the ingredients of Section 191 of I.P.C.
will have to be considered prior to satisfaction under Section 344(1) of
Cr.P.C. Before going into the ratios laid down in the citations, it will be
material to consider the facts of the case.
FACTS OF THE CASE :
14] It includes (a) foundation of trap case, (b) prosecution
evidence in Special Case No.4/1999, (c) the observations in the
judgment and (d) explanation of appellant.
[a] Foundation of Trap Case :
Complainant Ganesh Deshmukh was allotted a tenement in
middle income group scheme of MHADA, Akola. He has to receive the
possession. The Junior Engineer Samadhan Bhusari of MHADA was
dealing with that work. In spite of repeated follow up, complainant
Deshmukh did not receive the possession. Accused Bhusari
demanded illegal gratification. This compelled Deshmukh to approach
the office of Anti Corruption Bureau at Akola. The trap was laid on 27th
April, 1998 in the office of accused Bhusari. In this trap, the present
appellant acted as a panch witness.
There are two versions. Rs.500/- is accepted as illegal
gratification. This is the prosecution version. Whereas, the accused
Bhusari through cross-examination of panch-witness/present appellant
brought on record a different reason for accepting the amount. It was
for the purpose of laying of water pipe line.
[b] Prosecution Evidence :
There were three witnesses examined. It includes
complainant Deshmukh [PW-1]. It includes present appellant as a trap
witness [PW-2]. Ganesh Meghe, Chief Executive Officer of MHADA is
examined as PW-3 (Sanctioning Authority).
[c] Observations in the Judgment :
Learned Special Judge for various reasons acquitted accused
Bhusari. It includes bona fides of complainant Deshmukh. It includes
genuineness of purpose for which Rs.500/- was offered. It includes
non-examination of clerk Shri Lanjewar and Peon Shri Patil (who were
present at the time of trap). It includes accused Bhusari was not
exclusively incharge of allotment work.
The learned Special Judge on one hand acquitted accused
Bhusari, on the other hand directed to call explanation of present
appellant vide his order dated 20th June, 2005.
[d] Explanation of the Appellant :
He requested the learned Special Judge to give him more
time as he intends to prefer an appeal against the order calling
explanation. The learned Special Judge was pleased to refuse the
request for two grounds. One is the period of appeal was already over
and no supporting documents were filed. The reason for accepting
Rs.500/- by the accused Bhusari was illegal gratification and it was in
fact the mistake of the present appellant and the reason was
otherwise and i.e. laying up water pipe line. The appellant realizes
this mistake when he was cross-examined on behalf of accused
Bhusari's Advocate. According to him, he was not emphatic in giving
the explanation for Rs.500/- towards supply of water pipe line. But,
according to him, he has expressed only the possibility when crossexamined
by Bhusari's Advocate. He has also expressed leniency on
the ground of his insufficient education and caste.
CONCLUSION :
15] For better understanding, I would like to reproduce the facts
stated by the appellant in his evidence before the learned Special
Judge. It is material to state that he was first examined by the
Prosecutor Incharge, then cross-examined by Bhusari's Advocate and
then again cross-examined by the Prosecutor Incharge. The relevant
answers are as follows :
Answer given during chief-examination
Then the complainant asked to hand over the
possession of tenement by showing the
allotment order. Bhusari then asked as to how
Ganesh Deshmukh approached to Amravati
Office, instead of Akola Office. Then he asked
as to whether the amount of Rs.500/- was
brought for the possession. Ganesh Deshmukh
answered it in affirmative. Then Shri Bhusari
came out of room. We followed him. Then he
entered the office again by another door. Then
he stood aside the cupboard. We followed him.
Then he demanded the amount. Then Ganesh
Deshmukh took out the amount with his right
hand and paid the amount to the accused.
Answer given during cross-examination by defence :
Question : Whether it is correct to say that the
complainant was asked by the accused to
pay the amount to the contractor and then
the complainant suggested the accused to
pay the amount and then paid the said
amount to the accused ?
Answer : The complainant paid the said amount.
Question : Whether it is correct to say that the
complainant Ganesh Deshmukh paid the
amount for the work done for the pipe line?
Answer : The amount paid can be for the said
purpose.
Answers given during cross-examination by the
Prosecutor Incharge
Question: In examination in chief, you have deposed
that the amount was demanded for handing
over of possession and today you have
deposed that the amount was demanded for
the work of laying down pipe line, which
statement out of the two is correct?
Answer : My today's statement is correct.
It is true that my earlier statement that the
amount was demanded for possession is
false.
16] If we read the answers as reproduced above, we may find
that answers during Chief-Examination were given on the basis of
what appellant had seen and heard at the time of trap. It was
conducted on 27th April, 1998, and on that basis, appellant testified in
Court. It will also be material to consider under which background the
appellant gave answers during cross-examination conducted on
behalf of accused, Bhusari.
17] The amount paid by complainant, Deshmukh, to accused,
Bhusari, may be for laying of water pipeline. The evidence of
appellant needs to be read as a whole when the raiding party visited
the office, accused, Bhusari, was not present. He came at 2.30 p.m.
So, raiding party waited there for two-and-half-hour. For all these
hours, there was interaction between complainant, Deshmukh, and
present appellant. The discussion ranges from the topic of documents
required, type of construction, amenities, location etc. Even appellant
learnt that water and electricity supply was to be arranged.
18] So, the appellant expressed the possibility of payment on the
basis of his interaction with complainant, Deshmukh. So, the two
answers given by appellant were on the basis of two different sources.
First is what he saw and heard at the time of trap. Second is what he
interacted with complainant, Deshmukh. If we categorize the kind of
evidence under which these answers fall, we will come to know that it
is an oral evidence [as compared to documentary evidence]. That is
to say what is heard by the appellant.
19] The true test for determining whether statement is false or
not 'is whether two statements are contradictory or irreconcilable to
each other.' Certainly, the amount can either be paid as an illegal
gratification or it can be paid for laying of water pipeline [legitimate
purpose]. It cannot be for both the purposes. This test is certainly
satisfied.
20] When we tried to satisfy another test of 'willful/knowingly'
disclosure, we find that the case fails on this forum. It means, the
witness must tell the contrary fact knowingly or willfully. According to
evidence, it is a second statement which is false. As discussed above,
there is a reason for the appellant to give explanation for payment of
Rs.500/- and it being for laying of water pipeline. He gave it as per
interaction between him and complainant, Deshmukh. So, we can
certainly say that there is some foundation for that. Under such
circumstances, it cannot be said that second statement was
willful/with knowledge. Learned Special Judge has not considered this
aspect.
21] In this background, if we will consider the reasoning for
acquitting the accused, Bhusari, we will come to know that learned
Special Judge opined that the amount might have been accepted for
obtaining water supply. When prosecution adduces evidence, the
materials must fall within the definition of “legally accepted
evidence”. Unless and until legally admissible evidence is produced,
prosecution materials cannot be considered. In other words, merely
because any accused is acquitted, it does not mean that he has not
committed that offence. As said above, failure of the prosecution to
examine Lanjewar and Patil is one of the ground for acquittal. It also
includes lack of bona fide on the part of complainant, Deshmukh. He
was already having a tenement and he feared about cancellation of
allotment. On considering the reasons quoted by learned Special
Judge while acquitting the accused, Bhusari, learned Special Judge,
apart from considering above reasons, also considered probable
reason for payment as for laying water pipeline. Learned Special
Judge could have discarded the explanation given by this appellant
about payment. But, when he has accepted it, then it may not wise to
initiate action against him. If it is so, then I do not think that it will be
proper to call explanation of present appellant. Admittedly, nothing is
produced on record to show that the acquittal of accused, Bhusari, is
challenged on behalf of the prosecution. So, on this aspect also, the
learned trial Judge has erred.
22] In case of Empror Vs. Bankatram Lacchiram reported in
ILR 1904 28 (Bom) 513, the two depositions given after a gap of time
were the foundation for initiating action for the perjury. The ratio of
this judgment is that the circumstances under which a witness gives
answer at a particular point of time and at a later point of time needs
to be considered. A witness always deposes by recollecting his
memory and belief. It will also be material to consider the evidence
as a whole and not the objectionable answers isolately.
23] In case of Empror Vs. Ningappa Ramappa Kurbar
reported in ILR 1942 (Bom) 26, the witness deposed a particular fact
in a statement under Section 164 of Criminal Procedure Code, 1898
and deposed a contrary fact before committing Magistrate was the
foundation. Only when Court finds later statement to be untrue, then
only prosecution can be justified.
24] Similar occasion arose in case of K. K. Gupta Vs.
Devkumar Agrawal [2014 ALL MR (Cri.) 3869]. The appellant made
a particular statement when his statement was recorded by Income
Tax Officer at the time of search. Whereas at a later point of time
while submitting Income Tax Return, he claimed ownership over
certain articles. There was a private complaint for perjury. The
appellant was acquitted for the reason that mere contradiction in two
statements is not sufficient, but prosecution need to prove falsehood.
25] On the other hand, learned Addl. Public Prosecutor relied
upon the judgment in case of In Re : Suo Motu Proceedings
against R. Karuppan, Advocate [(2001) 5 SCC 289]. One Advocate
from Madras made a false complaint about verification of the age of
Dr. Justice A.S. Anand in an affidavit. Hon'ble Supreme Court
emphasized on decline in moral values and erosion of sanctity of oath.
There was a direction to file complaint under Section 193 of Indian
Penal Code.
26] There cannot be any doubt that Court being the guarantor
and protector of justice delivery system has to be cautious while
encouraging truthful evidence. And, whenever the sanctity of oath is
being misused for telling lie, the Court has to intervene and to set the
law in motion. In case before us, I find that the learned Special Judge
was courageous enough to initiate action for perjury, but, he lost sight
to the fulfillments of ingredients of giving false evidence.
27] There is one more issue wherein the learned Special Judge
has failed. Satisfaction is required at two stages. One is at the time of
calling of explanation and second is at the time of final order. The
decision to call explanation can be seen from the direction given in
the operative order dated 20th June, 2005. But, if the entire judgment
of acquittal is perused, we do not find any observation why there is a
need to proceed against the appellant and that too in the interest of
justice. While showing the zeal to proceed for perjury, learned Special
Judge has overlooked to this procedure requirement. So also, while
convicting the appellant, I do not find any reasoning as to how he
arrived at giving false answer knowingly. Merely saying that he gave
false answers knowingly is not sufficient unless supported by
reasoning. On this count also, the impugned judgment cannot be
sustained.
28] For all these reasons, I conclude that the decision cannot be
sustained, mainly for the reason of non-fulfillment about the condition
as to willful or knowingly giving false answer. It also fails for recording
satisfaction for initiating action and supporting the conclusion by
giving reasons. So, I am inclined to allow the appeal. Hence order -.
(i) The appeal is allowed.
(ii) The judgment dated 4th December, 2006 passed in Misc.
Criminal Application No.440 of 2005 convicting the
appellant under Section 193 of Indian Penal Code is set
aside.
(iii) Fine if paid, be returned to the appellant. [iv] The
appellant is discharged from personal bond and surety
bond.
(S.M. Modak, J.)
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