1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRI.APPLICATION NO.1291 OF 2007 Shripad Dattatraya Mande, aged about 39 years, Permanent resident of Sudha Quarter, Khamgaon Road, Shegaon, District : Buldhana (in jail) .... APPLICANT. // VERSUS // The State of Maharashtra, through its P.S.O. Ramdaspeth, Akola. .... RESPONDENT. ___________________________________________________________________ Shri Anil S. Mardikar, Advocate for Applicant. Shri K.S. Dhote, A.P.P. for Respondent/ State. ___________________________________________________________________ CORAM : R.C.CHAVAN, J. DATED : DECEMBER 10, 2008. ORAL ORDER 1. By this application under Section 482 of the Code of Criminal Procedure the applicant / original accused challenges order below Exh.82, passed by learned Sessions Judge, Akola in Sessions Trial No.76 of 2004. 2 2. I have heard learned counsel for the applicant and learned Additional Public Prosecutor for the State. 3. The applicant is being prosecuted for alleged commission of offences punishable under Section 302, 467, 471 read with Section 34 of the Indian Penal Code on the allegations that he murdered Purushottam Pimpale after forging a Will of one Shakuntala Mande. The investigation in the case was over, chargesheet was sent up and trial had commenced before the Court of Session. After trial commenced and evidence of P.W. 5 Uday Joshi was recorded, in part, the applicant filed application Exh.56 for arraying witness P.W. 5 Uday Joshi and his mother Smt. Kumudini Joshi as co-accused for allegedly committing an offences punishable under Sections 467 and 471 read with Section 34 of the Indian Penal code. This application was rejected by the learned Sessions Judge, which led the applicant to approach this Court by filing Criminal Application No.3177/2005. This application was allowed to be withdrawn with liberty to the applicant to file an application after the evidence of P.W. 5 Uday Joshi was recorded. Thereafter further cross-examination of P.W. 5 Uday Joshi was conducted and concluded on 2nd of March, 2007. Thereafter the 3 applicant filed application Exh.82, which was rejected by the learned Sessions Judge by his impugned order. 4. According to the learned counsel for the applicant, the learned Sessions Judge has unnecessarily placed emphasis on the provisions of Section 132 of the Evidence Act and held that the statements of P.W. 5 Uday Joshi at the trial cannot be used to incriminate him. The learned counsel for the applicant submitted that evidence of P.W. 5 Uday Joshi is voluntary in nature and apart from what he stated before the Court, he had already disclosed to the police about his role. To that extent, therefore, it cannot be said that Uday Joshi was compelled to give answer which would incriminate him. Proviso to Section 132 of the Evidence Act makes it clear that no answer, which the witness shall be compelled to give shall subject him to any arrest or prosecution or be proved against him in any criminal proceedings except prosecution for giving false evidence. He submitted that since there was no compulsion to P.W. 5 Uday Joshi, his statements would clearly indicate that he and his mother Kumudini Joshi had attested the will of Shakuntalabai Mande, who was already dead when the will was attested. It is not that P.W. 5 Uday stated that 4 he and his mother merely signed the will at the instance of the applicant and one Ingale, but had also attended some other offices in the Collectorate and had told the officers concerned that they had attested the will. In fact, on the basis of material which was available to police P.W. 5 Uday Joshi and his mother Kumudini could have been put to trial as persons who participated in forging the will. 5. Section 464 of the Penal Code defines what amounts to making a false document. It lays down that a person who dishonestly or fraudulently signs a document with intention of causing it to be believed that such document was made by the authority of a person, by whom he knows it was not made, can be said to make a false document. Making such false document amounts to forgery when the document is made to cause damage to public or to any person or to support any claim or title to any property. Attesting the will of Shakuntalabai, knowing that Shakuntalabai had not made the will in their presence, would apparently make P.W. 5 Uday and his mother party to forgery of the will and, therefore, party to offence punishable under Section 467 of the Penal Code. 5 6. The question is not of using deposition of P.W. 5 Uday for incriminating him or for invoking protection under Section 132 of the Evidence Act to avoid such incrimination. The question is whether on the basis of evidence before the Court, the learned Sessions Judge ought to have considered the prayer of the applicant that any person not being an accused, had committed offence for which such person could be tried together with the accused. This question was required to be decided. The case, which the prosecution sought to make out was, in fact that of securing attestation of a will through P.W. 5 Uday and his mother. Therefore, it is not that the prosecution had sought to make out that Uday and his mother innocently attested the will. The evidence of P.W. 5 Uday Joshi only fortifies the prosecution case. Since powers under Section 319 of the Code of Criminal Procedure could not have been invoked without there being evidence before the Court, while disposing of the previous application of the applicant, this Court had given liberty to the applicant to move the trial Court, after evidence of P.W. 5 Uday Joshi was recorded. It was perfectly possible that Uday Joshi could have repudiated having at all attested the will, or obtained signature of his mother thereon. In that case, the question of joining Uday or his mother as co-accused would not have arisen. It is 6 enigmatic that the applicant is repeatedly insisting on joinder of Uday Joshi and his mother, since even after such joinder confessional evidence of Uday Joshi could always be taken into account agaisnt the applicant as both of them would be co-accused tried at one trial. On the basis of the case, as made by the prosecution, and in light of evidence tendered before the Court, the Sessions Judge should have considered the application for joining Uday and his mother as co- accused, in so far as their complicity in commission of offence, punishable under Section 467, is disclosed. They could not have been joined as accused for other offences. Therefore, the learned trial Judge could not have rejected the application Exh.82 by his impugned order. 7. As I quash and set aside the said order and allow the application, it must be clarified that this does not imply that Uday Joshi or Kumudini Joshi would have no voice to object to their being put to trial. The learned trial Judge would hear them at the time of faming of charge and decide the question as to whether they ought to be put to trial only after considering that the requirements of Sections 227 and 228 of the Code of Criminal Procedure are satisfied. JUDGE RR.