(1.) The Criminal Appeal No.250/2003 arises out of Misc. Criminal Application No.179/2002 and Criminal Appeal No.251/2003 arises out of Misc. Criminal Application No.178/2002, against judgment of conviction and sentence under Section 193 of the Indian Penal Code, 1860, passed by Additional Sessions Judge, Nanded on 24.3.2003. These are impugned judgments in these Appeals. The appellants in these two appeals were witnesses in Sessions Case No.90/1996. Appellant Manoj Chavan was examined in the said Sessions Case as P.W.4 and the appellant Dr. Gokul Agrawal came to be examined as P.W.3. The Additional Sessions Judge, Nanded, before whom the Sessions Case was conducted, acquitted all the accused in that matter as it found that it was a case of "No Evidence". In the said Sessions Case, it appears that, almost all the witnesses turned hostile including those who were examined relating the actual incident.
(2.) The Court then proceeded to acquit accused of that matter. The Additional Sessions Judge passed orders as above that a notice under Section 344 of the Code of Criminal Procedure, 1973 (Cr.P.C. in brief) should be issued to these appellants to show cause as to why they should not be proceeded against for giving false evidence, punishable under Section 193 of the Indian Penal Code. The record of the Additional Sessions Court shows that, after passing of such judgment, the presence of the appellants was secured. A notice was given which has been marked Exh.1 in the two files which were opened for these appellants. The notice specified that the appellants had given false evidence and should remain present on 16.3.2002 in the Court and say as to why they should not be punished. The records of the two Misc. Criminal Application Nos.178/2002 and 179/2002 show that the trial Court secured presence of the appellants and framed charge in the Misc. Criminal Application under Section 193 of I.P.C. The Charge initially mentioned that, the appellants had intentionally deposed false and that they were called upon to explain why they should not be convicted and after such introduction, the charge framed mentioned that the witnesses had deposed false intentionally and committed offence under section 193. In both the Misc. Criminal Applications, the appellants stated that they did not plead guilty. Thereafter the two impugned judgments of conviction under Section 344 of Cr.P.C. for offence punishable under Section 193 of the I.P.C. are passed which are challenged in these appeals.
(3.) The learned counsel for the appellants submitted that the incident for which the sessions trial took place had taken place at a Dhaba. Eye witnesses relating to the incident did not support the prosecution, but no action was taken against them and the present appellants, whose evidence was relevant for periphery purposes, were picked up for action under Section 344 of the Cr.P.C. The learned counsel submitted that, the judgment passed in Sessions Case does not show that the alleged contradictions or omissions, on the basis of which the sessions Court came to the conclusion that false evidence was given, were duly proved by putting up the same to the investigating officer. No exhibits were referred of the alleged portions A, B, C, which were marked in statement to police under section 161 of the Cr.P.C. The learned counsel submitted that the case of prosecution was that the accused persons were returning from marriage of sister of appellant Manoj and when they were at Dhaba, the incident had taken place. The relevance of the evidence of Manoj was only to the effect that the accused persons in the Sessions Case were his friends and he had invited them to the marriage. The counsel submitted that the Additional Sessions Judge found fault with the evidence of appellant Manoj on the basis that he changed the date of marriage of his sister and contradicted his statement to the police. It is stated that the Sessions Court found fault with the evidence of Dr. Gokul Agrawal who was examined to say that his vehicle had been taken by driver Ganpat Bhange who was one of the accused in the matter. The learned counsel submitted that, if the provision of Section 344 of the Cr.P.C. is seen, if the trial Court wanted to proceed against the appellant, the appellants should have been charged under section 344 and charge could not have been under section 193 of the Indian Penal Code as has been done. If Section 193 of I.P.C. was to be applied, Section 340 of Cr.P.C. would have to be invoked.