YOGENDRA DASHRATLALA SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 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.

(2.) 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 and 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 and 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 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 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.) 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;