1 A-160.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.160 OF 2011 1. Ashok Keshav Bandh, Age 48 years, R/a Bhaji Mandai, Daund, Dist: Pune. 2. Rajendra Madhukar Jambhale, Age 35 years, Occ: Service, R/a At Post Vasunde, Taluka Daund, Pune. 3. Ramesh Eknath Londhe, Age 45 years, Occ: Police Patil, R/a At Post Vasunde, Taluka Daund, Pune. 4. Shivaji Namdeo Jambhale, Age 26 years, Occ: Driver, At Post Vasunde, Taluka Daund, Pune. 5. Subhash Jagannath Londhe, Age 43 years, Village Kotwal, At Post Vasunde, Taluka Daund, Pune. 6. Somnath Mahadeo Jambhale, Age 45 years, Occ: Business, At Post Vasunde, Taluka Daund, Pune. 7. Ankush Jaisingh Khomane, Age 41 years, 2 A-160.11 Occ: Agriculture, At Post Vasunde, Taluka Daund, Pune. .... Appellants - Versus - State of Maharashtra .... Respondent Ms Manjiri S. Parasnis for the Appellants. Ms S.D. Shinde, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: FEBRUARY 23, 2011 ORAL JUDGMENT: Heard. Admit. The learned APP waives notice. The appeal is taken up for final hearing at the admission stage itself. Heard the learned APP. 2. The learned Additional Sessions Judge, Baramati, while disposing of Sessions Case No. 45 of 2010 by a five page judgment on 28-1-2011, found that since the appellants herein, who were the witnesses in the case had turned hostile, in his opinion, they had committed the offence of intentionally giving false evidence and, therefore, he proceeded to issue notice to them under Section 344 of the Criminal Procedure Code. After these notices 3 A-160.11 were served on 8-2-2011 and reply of one of the appellants Ashok Keshav Bandh was filed and considered by the learned Judge, the learned Judge found that the appellants could be punished under Section 344 of the Cr.P.C. and proceeded to sentence them to suffer SI for seven days with fine of Rs.300/-, in default SI for two days more. The only reasons that the learned Judge has given in his order impugned in these proceedings are as under: "11. Now-a-days there is a growing tendency in the witnesses to speak lie. They are not having regards towards the truth. At least witnesses must be serious in the offences where capital punishment is provided. I found all these witnesses have no sanctity of oath. In this case, complainant is village Police Patil, who came to the spot, when he was informed by village Kotwal Subhash Londhe. I found that they both avoided their responsibility. 12. Since witnesses have intentionally gave false evidence, I come to the conclusion that for the eradication, the evils of perjury and in the interest of justice, it is very essential to punish them for such offences. Hence, the order." 3. It is unfortunate that a Sessions Judge should have so casually come to the 4 A-160.11 conclusion that the witnesses had given false evidence because they did not support the prosecution, without bothering to find out as to whether the account which the witnesses were supposed to give as per the prosecution case was itself correct or not. It is not that the witnesses had been examined under Section 164 of the Cr.P.C. before any Magistrate and had then resiled from their statements which had been recorded on oath. The learned Judge should have considered the possibility that the record which prosecution had created was itself not correct and therefore the witnesses deposed differently from the record of the investigation. In view of this, the appeal is allowed. The impugned judgment and order passed by the learned Additional Sessions Judge confirming the conviction of the appellants under Section 344 of the Cr.P.C. and sentencing them to suffer SI for seven days with fine of Rs.300/-, in default to suffer further SI for two days, is set aside. Fine, if paid, be refunded to the appellants. Sd/- (R.C. CHAVAN, J.)