NARAYANSWAMI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The only substantial question that arises for decision in this appeal by special leave is as to whether the requirements of Section 479-A of the Code of Criminal Procedure have been complied with before instituting the complaint from which this appeal arise and if they have not been complied with whether the prosecution is vitiated

(2.) In July 1965, there was a dacoity within the limits of Railway Police Station, Nagpur. Several properties belonging to the Railways were stolen in the course of that dacoity. During the investigation of that offence, the Railway Police sought the assistance of the local police. Inspector Khandagale (D. W. 1) who was in-charge of the Tehsil Police Station directed the appellant, the Sub-Inspector working under him to assist the Railway police in the investigation of the case. Part of the investigation was carried on by the appellant. Two of the persons arrested in connection with that dacoity were Ambadas and Deorao. They are said to have made certain statements on July, 21, 1965. It is further alleged that in pursuance of the information given by Deorao, the police in the presence of the Panchas recovered certain properties. The concerned panchnama was attested by two witnesses viz, Pochanna and Abdul Gani. After the investigation a charge-sheet was filed against several persons including Ambadas and Deorao accusing them of the commission of an offence under Section 395, I. P. C. After preliminary enquiry the case was committed to the Court of Session, Nagpur and was tried before the Additional Sessions Judge, Nagpur as Sessions Trial No. 8 of 1968 in his file. The trial of the case commenced on June 6, 1966. Pochanna, one of the Panch witnesses was examined on June 9, 1966. He did not support the prosecution Abdul Gani the other Panch witness also had been cited as a witness but he was not present in Court on June 9, 1966:On June10, 1966, one person who claimed himself to be Abdul Gani who, had attested the panchanama, was examined. He deposed that he had attested the panchnama and that he was present at the time the recoveries were made. On June 11, 1966, the appellant was examined. The appellant deposed that the person examined on the previous day was Abdul Gani and that person had attested the panchnama in question. Thereafter the case took a new turn not appears that the accused came to know that the person examined on June 10, 1966 was not Abdul Gani but one Dilawar and that the real Abdul Gani had migrated from Nagpur and settled down at Rajnandgaon. On enquiry their Counsel, Mr. Ingle came to know that Dilawar who posed himself as Abdul Gani was involved in a criminal case pending in the Munsiff's Court in Nagpur. After ascertaining all the facts, Mr. Ingle filed an application before the learned trial Judge alleging that the witness who posed himself as Abdul Gani and spoke in support of the recovery panchnama was an imposter and that he was not the real attestor to the panchnama. Therein he further stated that the name of that person was Dilawar and he was the son of one Munirsha. Thereafter the learned trial Judge recalled the said witness and further examined him on June 14, 1966. At that time the witness confessed that he was not Abdul Gani and that he did not attest the Panchnama, but he had been compelled by the appellant to depose falsely. After the examination of this witness, the learned trial Judge being prima facie of the opinion that the appellant had given perjured testimony and that he has fabricated false evidence, issued a notice to the appellant to show cause why he should not be prosecuted for perjury and for fabricating false evidence for the purpose of the case. The appellant showed cause on June 16, 1966. In the statement filed by him he again asserted that the person examined on June 10, 1966 was Abdul Gani, the attestor of the panchnama. He denied the fact that the said witness is Dilawar. He went further and averred that the witness had been purchased by the accused and that he has deposed falsely that he is not Abdul Gani. Thereafter the appellant was recalled and further examined. During the course of his examination he reiterated the stand taken by him in his written statement. In the course of his cross-examination, it was elicited from him that he knew the person concerned for over three years, thereby the possibility of the appellant giving incorrect evidence due to misconception was ruled out. After the appellant was re-examined, the accused produced a person in Court who according to them was the real Abdul Gani. That person deposed that he is Abdul Gani and that he was the person who had attested the panchnama. The learned trial Judge took his sample signatures and compared the same with the signature found on the panchnama. He found them to tally with one another. After the conclusion of the trial, the learned trial Judge acquitted all the accused and directed the prosecution of Dilawar and the appellant under Sections 195 and 196, I. P. C. At this stage it may be noted that in the course of his judgment in the dacoity case, the learned trial Judge gave a finding that Dilawar and the appellant intentionally gave false evidence in the case and further the appellant had intentionally fabricated false evidence for the purpose of being used in that case. He also opined that for the eradication of the evils of perjury and fabrication of false evidence and in the interest of justice it is expedient that Dilawar and the appellant should be prosecuted for the offences committed by them. On the basis of that complaint, the appellant and Dilawar were tried, convicted and sentenced to suffer rigorous imprisonment for three years. The appellant was convicted both for perjury as well as for fabricating false evidence. Under each head, he was awarded a sentence of three years rigorous imprisonment but the two sentences were ordered to run concurrently. Dilawar did not appeal against his conviction and sentence. The appellant appealed against the judgment to the High Court of Maharashtra. His appeal was summarily dismissed. Thereafter he appealed to this Court after obtaining special leave. In that appeal this Court came to the conclusion that the High Court should not have summary dismissed the appeal as arguable questions of fact and law arose for consideration. It accordingly set aside the order of the High Court and remitted the case to the High Court with a direction to re-admit the appeal and dispose of the same according to law. Accordingly the appeal was again heard by the Nagpur Bench of the Maharashtra High Court. The appeal has again been dismissed by the High Court. We have now to consider the correctness of the decision of the High Court.

(3.) So far as the merits of the case are concerned, there is little to be said in favour of the appellant's case. There is hardly any doubt that Dilawar had posed himself as Abdul Gani. It is also clear from the evidence on record and from the circumstances of the case that the appellant was responsible for inducing Dilawar to pose as Abdul Gani. All that was said in favour of the appellant by Dr. Barlingay, his learned Counsel was that the possibility of the appellant innocently thinking that Dilawar was the real Abdul Gani cannot be ruled out. We are unable to accept this contention. It is clear from the admissions made by the appellant during the Sessions Trial which admissions have been brought on record as evidence in the present case that he knew Abdul Gani very well. Therefore there was no occasion for him to make any mistake. The appellant had strongly asserted in his statement in reply to the show cause notice as well as in his deposition in Court that the person who was examined on June 10, 1966 was the real Abdul Gani and that he was the person who had attested the panchnama. Under these circumstances, the plea that the appellant gave evidence under an erroneous impression cannot be entertained. It is clear that the appellant has no regard for truth.