CR.A/240/1999 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 240 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= YOGENDRA DASHRATLAL SHAH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BB NAIK for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 05/05/2008 CR.A/240/1999 2/58 JUDGMENT CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This Appeal arises out of the judgment and order dated 16th February, 1999 passed by the learned Addl. Sessions Judge, Kheda at Nadiad, in Order below Exhibit 45-A whereby, the appellant, Prosecution Witness No. 2 in Sessions Case No. 142 of 1998, was convicted for the offence punishable u/s. 344 of the Code of Criminal Procedure, 1973 [for short, “the Cr.P.C.”] and sentenced to undergo simple imprisonment for a period of 3 months with fine of Rs.500/-; and in default of payment of fine, simple imprisonment for a further period of 15 days. A copy of the said judgment and order was also directed to be sent to the Medical Council of India with a proposal to take necessary action against the appellant and to inform about the action so taken to the Court within a period of three months thereafter. CR.A/240/1999 3/58 JUDGMENT 2.0 Before we proceed with the facts of the case, we would like to narrate a brief history as to under what circumstances, the Court below has passed the impugned judgment and order dated 16.02.1999. The appellant herein was examined as PW – 2 at Exhibit – 13 in Sessions Case No. 142 of 1999 before the District & Sessions Court, Kheda at Nadiad. In the said Sessions Case, the prosecution had proved the documents at Exhibits – 9/7 and 9/8 [Exhibits – 14 & 15 respectively] through the appellant [PW – 2]. In his examination-in-chief, the appellant had produced the Treatment Sheets of the victim [Exhibit – 16] which were also proved. In his cross-examination, the appellant had produced a document [Exhibit – 17] dated 06.03.1998, which was in the nature of a history of the incident given by the victim to him, while she was brought to his Hospital at the first place. However, the Court below, after considering the entire oral as well as documentary evidence available on record, came to CR.A/240/1999 4/58 JUDGMENT a definite conclusion that the appellant had deposed false evidence and produced forged / fabricated document vide Exhibit – 17 while he was in the Witness Box and that to at the time of his cross-examination for the purpose of helping the original accused in the said Sessions Case and accordingly, while passing the judgment and order dated 05.02.1999 convicting the original accused u/s. 498-A and 302 IPC, the Court below issued Notice u/s. 344 Cr.P.C. to the appellant, making it returnable on 16.02.1999, with a direction to the appellant to remain personally present or through his Advocate before the Court below on the said date. The said Notice was duly served upon the appellant. On 16.02.1999, the appellant remained present before the Court below along with his Advocate and submitted an application for adjournment. However, the said application was rejected by the Court below and the Court below proceeded with the matter on merits. The Court below heard the appellant [PW – 2] as well as the Advocate appearing on his CR.A/240/1999 5/58 JUDGMENT behalf. At the end of hearing, the learned Advocate appearing for the appellant before the Court below requested the Court that a lenient view may be taken while imposing sentence since the appellant is a Doctor by profession and a respectable person in the Society. The said aspect is reflected in Para – 7 of the impugned judgment dated 16.02.1998 passed by the Court below. The Court below, after considering the entire evidence available on record, convicted the appellant [PW – 2] u/s. 344 Cr.P.C. and imposed sentence as narrated in the earlier paragraph of this judgment. 3.0 The facts in brief of Sessions Case No. 142 of 1998 arising out of the complaint being I – C. R. No. 40 of 1998 of Kathlal Police Station, which are relevant for the purpose of deciding this Appeal, are as under; 3.1 On 06.03.1998, at around 1100 hrs., while Bhuriben, the wife of the appellant, original CR.A/240/1999 6/58 JUDGMENT accused, was in her house, the appellant came in a drunken condition and picked up a quarrel with Bhuriben. During that process, the appellant, original accused, closed the doors of the house from the inside, sprinkled kerosene on Bhuriben and thereafter, set her ablaze. As a result thereof, victim – Bhuriben sustained severe burn injuries of the 1st, 2nd & 3rd degrees. During the interregnum period, the appellant, original accused, fled the scene of offence. 3.2 On hearing the shouts of the victim, a crowd gathered at the scene of offence. The relatives of the appellant, original accused, took the victim to a private Hospital named “Varsha Surgical Hospital”, situated in Odhav area of Ahmedabad City. In the said Hospital, the victim was given necessary medical treatment. Here, it is pertinent to note that though it was a medico-legal case, neither the relatives of the original accused nor the Doctor concerned had informed about the said incident to the police CR.A/240/1999 7/58 JUDGMENT authority. When the father of the victim came to know about the said incident through his nephew, he and his wife came to the Hospital where the victim was admitted. At that time, the victim was totally unconscious. 3.3 On the next day, i.e. 07.03.1998, when the victim became conscious, her parents inquired from her regarding the said incident. At that time, the victim informed them that on 06.03.1998, at around 1100 hrs., the appellant, original accused, came to the house in a drunken condition and picked up a quarrel with her and during that process, he closed the doors of the house, poured kerosene on her and thereafter, set her ablaze. On hearing the same, the father of the victim decided to file a complaint as it was a serious offence. On the next day, at around 1000 hrs., the Doctor of said “Varsha Surgical Hospital” gave a telephonic intimation regarding the admission of the victim to his Hospital to Odhav Police Station, which was noted down by the CR.A/240/1999 8/58 JUDGMENT P.S.O., who was on duty at the relevant point of time, in the Station Register. The P.S.O., in turn, handed over a 'yaadi' to P.S.I. - Ghanshyambhai Tribhovanbhai Pandya for the purpose of carrying out necessary investigation. The said P.S.I. went to “Varsha Surgical Hospital” and made necessary preliminary inquiry. He noted down the complaint given by the father of the victim and also sent a 'yaadi' to the concerned Executive Magistrate for recording the dying declaration of the victim. As the incident had taken place outside the jurisdiction of Odhav Police Station, the complaint was registered as C. R. No.'0' of 1998 of Odhav Police Station u/s. 307 IPC. 3.4 On the same day, i.e. on 08.03.1998, between 1210 hrs. - 1230 hrs., the dying declaration of the victim was recorded by the Executive Magistrate after following due procedure. The complaint given by the father of the victim was sent to Kathlal Police Station for CR.A/240/1999 9/58 JUDGMENT the purpose of registering the offence, as the alleged offence had taken place within the jurisdiction of Kathlal Police Station, and ultimately, it came to be registered as Kathlal Police Station I – C. R. No. 40 of 1998 u/s. 307 IPC. Investigation into the alleged offence was handed over to P.S.I. - Harendrasinh Kiritsinh Rana of Kathlal Police Station. In the meanwhile, as the condition of the victim had started to deteriorate, she was shifted to L. G. Hospital, Ahmedabad at around 1400 hrs. on 08.03.1998. At L.G. Hospital, the victim was given necessary medical treatment. 3.5 On 09.03.1998, as the condition of the victim had improved, the further statement of the victim was recorded by the P.S.I. of Kathlal Police Station, after following due procedure. Thereafter, the Investigating Officer went to the scene of offence and made necessary inquiry. A ‘panchnama’ with respect to the place of incident was prepared in the presence of ‘panchas’. CR.A/240/1999 10/58 JUDGMENT Necessary 'muddamal' articles were collected. As cogent evidence was found against the appellant, he was arrested on 09.03.1998. Arrest ‘panchnama’ was prepared in the presence of ‘panchas’ and thereafter, the appellant was sent to judicial custody. 3.6 On 16.03.1998 the victim succumbed to the injuries. Inquest ‘panchnama’ was prepared in the presence of 'panchas'. ‘Marnottar’ form was filled up and necessary arrangements were made for sending the dead body for performing post- mortem. A note was sent to the concerned Magistrate for the purpose of adding offence u/s. 302 IPC in the complaint. Necessary investigation was carried out and statements of several witnesses were recorded. On completion of investigation, charge-sheet was filed against the husband of the deceased – Bhanubhai Shanabhai Zala before the Court of learned J.M.F.C., Kapadvanj. As the case was exclusively triable by the Court of Sessions, the learned Magistrate CR.A/240/1999 11/58 JUDGMENT committed the case to the District & Sessions Court, Kheda at Nadiad and it was numbered as Sessions Case No. 142 of 1998. The appellant herein was examined as Prosecution Witness No. 2 at Exhibit – 13 in the said Sessions Case. His evidence was recorded by the Court below on 21.12.1998. 3.7 After hearing learned counsel for the respective parties and appreciating the oral as well as documentary evidence on record, the learned Addl. Sessions Judge passed judgment and order dated 05.02.1999 convicting the original accused – Bhanubhai Shanabhai Zala for the offence punishable u/s. 498-A and 302 IPC. While passing the said judgment dated 05.02.1999, the learned Addl. Sessions Judge issued Notice to Prosecution Witness No.2 in the said Sessions Case, i.e. the appellant herein, under Section 344 of the Cr.P.C. to show cause as to why he should not be punished for deposing false evidence and producing forged / fabricated CR.A/240/1999 12/58 JUDGMENT document in Court proceedings, making it returnable on 16.02.1999 with a direction to remain present before the Court below personally or through an Advocate on the said date. The said Notice was duly served upon the appellant. In pursuance of the said Notice, the appellant remained present before the Court below along with his Advocate on 16.02.1999. On that day, the appellant submitted an application Exhibit – 47 through his Advocate, requesting to grant some time to make his submissions. However, the said application preferred by the appellant was rejected, and on the same day, the Court below proceeded with the further hearing of the Notice Exhibit – 45(A). 3.8 After hearing the appellant as well as the Advocate appearing on his behalf before the Court below, the learned Addl. Sessions Judge passed the judgment dated 16.02.1999 convicting the appellant for the offence punishable u/s. 344 Cr.P.C. and imposing sentence, as narrated in the CR.A/240/1999 13/58 JUDGMENT earlier part of this judgment. 4.0 Mr. B. B. Naik, learned Advocate for the appellant, has submitted that the judgment dated 16.02.1999 passed by the Court below suffers from the vice of gross violation of the principles of natural justice. 4.1 Learned Advocate has drawn our attention to the provision of Section 344 Cr.P.C. and has contented that the Court below could take cognizance of the alleged offence only after giving the accused reasonable opportunity to present his case. 4.2 Learned Advocate has submitted that in the case on hand, the Court below has not given any opportunity, much less any reasonable opportunity, to the appellant before passing the impugned judgment, which is clearly violative of the principles of natural justice. CR.A/240/1999 14/58 JUDGMENT 4.3 Learned Advocate has next submitted that the Court below has also committed serious error of law inasmuch as it has not followed the mandatory provision of Section 344(4) Cr.P.C. He has submitted that the convict – accused was required to be given an opportunity to challenge the conclusion recorded by the Sessions Court while passing the judgment dated 05.02.1999, by way of filing appropriate proceedings before the appropriate forum. However, no such opportunity was granted by the Court below and it proceeded with the matter on the first date itself before the expiry of the appeal period. Hence, the impugned judgment deserves to be quashed and set aside on this count also. 4.4 Learned Advocate has contented that there is no evidence on record to support the conclusion arrived at by the Court below that the appellant had forged / fabricated the document at Exhibit – 17 and that the said finding arrived at by the Court below is without any foundation. He CR.A/240/1999 15/58 JUDGMENT has submitted that on perusal of the police 'yaadi' sent to the Executive Magistrate at Exhibit – 11 and the entry made by the P.S.O. of Odhav Police Station in the Station Diary at Exhibit - 23, it is apparent that the victim had sustained the burn injuries as a result of the accidental fire that took place while preparing tea on a 'primus'. Therefore, undoubtedly, the document at Exhibit – 17 was genuine and not a false or fabricated one. 4.5 Learned Advocate has further submitted that there is no cogent evidence on record to show that the appellant had forged / fabricated the said document. Hence, the impugned judgment, being totally baseless, deserves to be quashed and set aside. 4.6 Learned Advocate has next contented that in view of the provisions of Section 344 Cr.P.C., the Court below was required to deal with the matter by following the procedure as prescribed CR.A/240/1999 16/58 JUDGMENT in Summary Trial cases. However, in the present case, the Court below has not followed the said procedure. Hence, the impugned judgment deserves to be quashed and set aside on this ground itself. 4.7 In support thereof, learned Advocate has relied upon a decision in the case of Emperor v. Kondiba Balaji reported in A.I.R. 1940 Bombay 314 wherein, it has been held that the provisions of Section 342 Cr.P.C. of 1898 applies even to summons case tried summarily u/s. 263 Cr.P.C,. 4.8 Learned Advocate has relied upon a decision of the Hon'ble Punjab High Court in the case of Mohinder Singh v. The State reported in 1968 CRI.L.J. 427 wherein, it has been held that the procedure prescribed under Section 263 Cr.P.C. must be strictly followed. 4.9 Learned Advocate has next relied upon a decision of the Apex Court in the case of CR.A/240/1999 17/58 JUDGMENT Mohammad Ibrahim v. B. Rama Rao reported in A.I.R. 1976 S.C. 1822 wherein, it has been held that under Section 479-A Cr.P.C. of 1898, not only is it necessary that the Court must form the opinion that the witness had intentionally given false evidence, but it is further necessary that the Court must come to the conclusion that for the eradication of the evils of perjury and in the interests of justice, it is expedient that the witness should be prosecuted for the offence which appears to have been committed by him. 4.10 Learned Advocate has also relied upon a decision in the case of Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg & anr. reported in A.I.R. 1977 S.C. 747 wherein, on the facts of that case, the Court held that the order of dismissal being without jurisdiction and as such void and inoperative having been passed in contravention of Article 311(1) of the Constitution of India, the fact that the order was confirmed on appeal by the Head of the CR.A/240/1999 18/58 JUDGMENT Department cannot cure the initial defect. 4.11 Learned Advocate has next relied upon a decision in the case of Murari Mohan Deb v. Secretary to the Govt. of India & ors. reported in A.I.R. 1985 S.C. 931 wherein, it has been held that the enquiry proceedings, in which the order of compulsory retirement was passed without following the principles of natural justice, was illegal and vitiated. 4.12 Learned Advocate has also relied upon a decision in the case of Institute of Chartered Accountants of India v. L. K. Ratna & ors. reported in A.I.R. 1987 S.C. 71 wherein, it has been held that there is nothing is Regulation 14 of the Chartered Accountants Regulations, 1964 which excludes the operation of the principle of natural justice entitling the member to be heard by the Council when it proceeds to render its finding. The principles of natural justice must be read into the unoccupied interstices of the CR.A/240/1999 19/58 JUDGMENT statute unless there is a clear mandate to the contrary. 4.13 Learned Advocate has next relied upon a decision of the Hon'ble Kerala High Court in the case of Varghese @ Sibi v. State of Kerala reported in 1989 CRI.L.J. 2041 wherein, it has been held that when the discretion is exercised in favour of initiating action u/s. 344 Cr.P.C., there must be satisfaction for the Court that it is necessary and expedient in the interest of justice that the witness should be tried summarily. The said satisfaction is not meant to be subjective only. It must be objective. It must appear from the proceeding that the Court initiated action only on such satisfaction. 4.14 Learned Advocate has relied upon a decision in the case of Charan Lal Sahu v. Union of India & other related cases reported in A.I.R. 1990 S.C. 1480 wherein, it has been held that Audi alteram partem is a highly effective rule CR.A/240/1999 20/58 JUDGMENT devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. The rule of natural justice can operate only in areas not covered by any law validly made. The general principle as distinguished from an absolute rule of uniform application is that where a statute does not in terms exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. 4.15 Learned Advocate has also relied upon a decision of the Himachal Pradesh High Court in the case of Nasib Din v. State of H. P. reported in 1992 (3) CRIMES 706 wherein, it has been held that in a case of prosecution for perjury, the moment the Court is apprised of the filing of the appeal against the judgment in which the CR.A/240/1999 21/58 JUDGMENT petitioner is alleged to have made a false statement, the Court should proceed slowly as further proceedings of the trial is to abide by the result of the appeal. 4.16 Learned Advocate has also relied upon the decision in the case of T. Bhagi Patra v. State of Orissa reported in 1996 CRI.L.J. 2423 wherein, it has been held that in order to make a person liable for false evidence, he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on subsequent occasion. The earlier statements regarding a set of facts must be on oath and his statement also must be on oath. If both the statements become irreconcilable, then only there shall be a scope of forming an opinion for initiation of the prosecution. 4.17 Learned Advocate has next relied upon a decision in the case of Shekhar Ghosh v. Union of India & anr. reported in (2007) 1 S.C.C. 331 CR.A/240/1999 22/58 JUDGMENT wherein, it has been held that a post-decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post- decisional hearing in a case of this nature is not contemplated in law and the result of such hearing was a foregone conclusion. 5.0 Mr. H. L. Jani, learned APP appearing on behalf of the respondent – State, has submitted that the so-called statement made by deceased – Bhuriben on 06.03.1999 at Exhibit – 17 states that the deceased had sustained the burn injuries in question when the clothes worn by her on the date of the incident in question had caught fire while she was preparing tea on a 'primus'. However, it may be noted that the aforesaid fact has not been narrated anywhere in the medical case-papers of the deceased, i.e. the Treatment Sheet dated 20.03.1998 at Exhibits – 15 and the Case-papers from 06.03.1998 to 08.03.1998 at Exhibit - 16. CR.A/240/1999 23/58 JUDGMENT 5.1 Learned APP has submitted that in fact, in the said case-papers, i.e. the documents at Exhibits - 15 & 16, endorsements have been made to the effect that the police has been informed about the said incident on 08.03.1999 and that the dying declaration of the victim has been recorded on that day itself. Therefore, if at all the appellant had noted down the history of the victim at Exhibit – 17, then he would have definitely informed about the said fact to the police or to anyone else. However, the same has not been done and the said fact has been disclosed, for the first time, only before the Court below and that to at the stage of his cross-examination. The aforesaid conduct of the appellant establishes his intention of producing a forged document and leading false evidence before a Court of law. Learned APP has submitted that the aforesaid aspect creates serious doubts about the genuineness of the document at Exhibit – 17 which is admittedly false evidence tendered CR.A/240/1999 24/58 JUDGMENT with a view to help the original accused person. 5.2 Learned APP has further submitted that even if we believe the document at Exhibit – 17 to be genuine, then also, on a perusal of the same with the naked eye, it transpires that the said document bears three different hand- writings. Apart from that the same was produced by the appellant only during his cross- examination before the Court below in Sessions Case No. 142 of 1998 as PW – 2 at Exhibit – 13. The fact regarding possession of such a document by the appellant was never disclosed to the prosecution by the appellant, at any time prior to his cross-examination, which also creates serious doubts about its genuineness. 5.3 Learned APP has drawn our attention to Clause (XV) of Para – 60 of the judgment dated 05.02.1999 passed in Sessions Case No. 142 of 1998, which reads as under; CR.A/240/1999 25/58 JUDGMENT “60(XV) - The PW – 2, Dr. Yogendra Shah, has fabricated the document Exhibit – 17 and have also either forged or got forged signature of the deceased, Bhuriben, as false declaration purported to have been given by the deceased, Bhuriben, and he is liable to be prosecuted under Section 344 of the Criminal Procedure Code for giving false evidence or fabricating false evidence, with an intention that his evidence may be used in the proceedings”. 5.4 Learned APP has contented that on a bare perusal of Clause (XV) of Para-60 and Clause (V) of the operative order of the judgment dated 05.02.1999 delivered in Sessions Case No. 142 of 1998 makes it amply clear that the Court below had reached to the objective satisfaction that the appellant had fabricated / forged the document at Exhibit – 17