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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION No.152 OF 2009
1) Uday Ashokrao Joshi,
Adult, Service, R/o Alsi Plot,
Akola, Tq. and Dist. Akola
(Maharashtra)
2) Smt. Kumudini Ashokrao Joshi,
Adult, Household,
R/o Alsi Plots, Akola,
Tq. and Dist. Akola
(Maharashtra)
.. Versus ..
ig .. APPLICANTS
State of Maharashtra,
By Police Station Officer,
Police Station Ramdaspeth,
Akola, Tq. and Dist. Akola,
through Govt. Pleader,
High Court, Nagpur. .. RESPONDENT
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Mr. A.S. Chandurkar, Advocate for the applicants,
Mr. D.B. Patel, A.P.P. for the respondent.
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CORAM:- A.B. CHAUDHARI, J.
DATED :- 15 APRIL, 2010
th
J U D G M E N T
1. Heard. Rule Returnable forthwith. Heard with consent of learned
Advocate for the parties.
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2. By this revision application order dated 06-05-2009 below Exhibit
118 for discharge in Sessions Trial No.76/2004 is challenged by the
applicants, who have been arrayed as accused persons during the course
of trial under the orders made by this Court with reference to power
under Section 319 of the Criminal Procedure Code.
3. The prosecution case in brief is that original two principal accused
Shripad Dattatray Mande and Damodhar Konduji Ingale are facing trial
for double murder of Purushottam Laxman Pimple and his wife Pratibha
Pimple. Though accused persons were close relatives of one Shakuntala
Mande, she had given the property under Will to said Purushottam and
his wife rather than the accused No.1 and therefore, both these accused
persons had made a plan to commit murder of the beneficiaries of Will.
Not only that, these two main accused persons forged the Will dt.
15-11-2003 forging the signature of Shakuntala Mande etc. in favour of
accused No.1. The allegations against these two applicants before me are
that they are attesting witnesses to the said forged Will dated
15-11-2003. After commencement of the trial, applicant Uday was
examined before the Sessions Judge and in paragraphs 3 and 4 in
examination-in-chief he stated that he had signed the said Will Exhibit
46, so also his mother as attesting witnesses but on the false
representation made by the said two accused persons and they were not
aware what was scribed in the Will. Needless to state that Uday was
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examined as prosecution witness. It is only on the basis of this version
recorded by the Sessions Court so also the statement before the Taluka
Inspector of Land Records the principal accused Shripad and Damodhar
moved an application under Section 319 of the Criminal Procedure Code
requesting the trial Court to issue accused summons to the present
applicants i.e. Uday and his mother Kumudini and try them with those
main accused persons. The trial Court rejected that application, against
which accused persons filed criminal revision before this Court, which
was allowed by this Court and consequently these two applicants were
arrayed as accused persons in the said Sessions Trial. The said order
stood confirmed in the Hon’ble Supreme Court which reserved liberty in
favour of the applicants to apply for discharge before the trial Court.
Accordingly, the applicants filed application Exhibit 118 which has been
rejected by the trial Court and hence, this revision application.
4. In support of the revision application, Mr. Chandurkar vehemently
argued inviting my attention to the recorded evidence at the trial Court
and the case of the prosecution from the beginning that applicants Uday
and his mother Kumudini were shown as prosecution witnesses against
the principal accused persons in the chargesheet relating to double
murder as well as forgery of the Will and when applicant Uday entered
the witness box, he candidly admitted his signature and also explained
how and under what circumstances the signatures as attesting witnesses
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were put by him and his mother. He also made similar statement Exhibit
54 before the Taluka Inspector of Land Records at the instances of
accused Nos. 1 and 2. It is on the basis of this evidence Uday and his
mother were made accused at the instance of accused Nos. 1 and 2-
Shripad and Damodhar. The learned Advocate for the applicants thus
submitted that Section 132 of the Indian Evidence Act clearly protects a
witness from being prosecuted and the protection given by the said
Section is available to both the applicants and therefore, they cannot be
prosecuted and hence, they are liable to be discharged in the Sessions
Trial. In the light of the said protection and no evidence about their
involvement in alleged crime of forgery against them, the trial if allowed
to continue against them would be exercised in futility besides
harassment to the applicants.
5. According to Mr. Chandurkar, at any rate, the major offence about
double murder is against the accused Nos. 1 and 2 and it is at the
instance of accused persons the applicants were arrayed as accused and
not at the instance of State. He cited following decisions:-
i)AIR 1989 SC 598, State (Delhi Admn.) .vs. Jagjit Singh;
ii)2003 Cri.L.J. 2909, Janardan Subrao Pai .vs. Chandra Kamalaksha Pai
and another.
6. Mr. Patel, the learned A.P.P. for the State opposed the criminal
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application and argued that fact about the signatures as attesting
witnesses having thus been admitted, the applicants are clearly guilty of
the offence under Sections 467 and 473 of the Indian Penal Code and
that is why the trial Court has rightly rejected the application Exhibit
118.
7. I have perused the chargesheet and the evidence so far recorded.
Having heard the learned Counsel for the rival parties and having seen
the evidence of applicant Uday before the Sessions Court on 16-9-2005
so also the cross-examination, it is clear that applicant Uday has fairly
and candidly stated in his evidence under what circumstances and how
the document was signed by them as attesting witnesses. In the evidence
he has clarified as to how he and his mother were misled by the main
accused persons Shripad and Damodhar and consequently had signed the
Will as attesting witnesses and as to how he made a statement Exhibit
54 before the Taluka Inspector of Land Records. This is the sum and
substance of the evidence, which is sought to be used by the accused 1
and 2 against them. At this stage, it is necessary to quote Section 132 of
the Indian Evidence Act, 1872.
“132. Witness not excused from answering on
ground that answer will culminate – A witness shall
not be excused from answering any question as to any
matter relevant to the matter in issue in any suit or in::: Downloaded on – 09/06/2013 15:51:01 :::
6any civil or criminal proceeding, upon the ground that
the answer to such question will criminate, or may tenddirectly or indirectly to criminate, such witness, or that
it will expose, or tend directly or indirectly to expose,
such witness to a penalty or forfeiture of any kind
Proviso – Provided that no such answer, which awitness shall be compelled to give, shall subject him to
any arrest or prosecution, or be proved against him in
any criminal proceeding, except a prosecution for giving
false evidence by such answer .”
Reading of the above provision to my mind clearly shows that
Uday could not have excused himself from answering the questions about
signatures as attesting witnesses on forged Will on the ground that the
answer to such questions will criminate him and his mother. Therefore,
proviso to this Section provides for a protection to such witnesses. After
providing a mandate to a witness by substantive provision under Section
132 of Indian Evidence Act not to excuse from answering, care has been
taken to protect such a witness vide proviso above who may become
vulnerable to criminal proceedings or prosecution due to truthful answers
given by him. Thus there is a specific object in incorporating the proviso
to the said section and affording protection to such witness to encourage
the witness to come forward and help in the administration of justice.
The purpose is obvious that the State must get the witnesses while
making its efforts in investigation to testify the truth before Court. The
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protection is however not available if the witness give false evidence by
such answer.
8. In State (Delhi Admn.) .vs. Jagjit Singh, AIR 1989 SC 598, the
Hon’ble Supreme Court has had to say thus –
“13. Therefore, a witness is legally bound to answer any
question which is relevant to the matter in issue even if the
answer to such question is likely to criminate him directlyor indirectly. Proviso to S. 132 expressly provides that
such answer which a witness is compelled to give shall not
subject him to any arrest or prosecution nor the same can
be proved against him in any criminal proceeding except aprosecution for giving false evidence by such answer. The
provisions of proviso to S. 132, Evidence Act, clearly
protect a witness from being prosecuted on the basis of theanswers given by him in a criminal proceeding which tend
to criminate him directly or indirectly. In view of this
provision, the apprehension of the respondent that his
evidence as approver will be used against him in the otherfour criminal cases where he figures as an accused is
without any basis. On the other hand, he is absolutely
protected from criminal prosecution on the basis of the
evidence to be given by him when examined by theprosecution as an approver in the said case. This
submission of the respondent is, therefore, not tenable. It
is pertinent to refer in this connection the decision of this
Court in Laxmipat Choraria v. State of Maharashtra,
(1968) 2 SCR 624 : (AIR 1968 SC 938 at p. 942) wherein::: Downloaded on – 09/06/2013 15:51:01 :::
8it has been observed by Hidayatullah, J. as he then was
that :-
“…….. Under S. 132 a witness shall not be excused from
answering any question as to any matter relevant to the
matter in issue in any criminal proceeding (among others)
upon the ground that the answer to such question willincriminate or may tend directly or indirectly to expose
him to a penalty or forfeiture of any kind. The safeguard
to this compulsion is that no such answer which the
witness is compelled to give exposes him to any arrest orprosecution or can it be proved against him in any criminal
proceeding except a prosecution for giving false evidence
by such answer.”
14. So Section 132 of the Evidence Act sufficiently
protects him since his testimony does not go against him.”
In Janardan Subrao Pai .vs. Chandra Kamalaksha Pai and
another, 2003 Cri.L.J. 2909, a Single Judge of this Court held thus :-
“5. ……….. On plain language of this Section, if a
person is summoned by the Court to appear as witness in
another criminal case, or for that matter, as witness in any
suit or in any civil proceeding, then he would be obliged toappear and depose on all matters relevant to the matter in
issue in that proceeding and could not be excused merely
because any statement made by him during the evidence
would criminate him or would tend directly or indirectly
to criminate him in the pending prosecution against him.
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To put it differently, the evidence of Respondent No.1 in
the companion criminal case, cannot be assumed to be outof free will, but was obviously out of legal obligation. In
such a situation, the proviso would come into play and any
answer given by the respondent No.1 as witness in another
case can be used against him only for prosecution forgiving false evidence and for no other purpose.”
9. In Subedar v. State, AIR 1957 Allahabad 396, James, J
considered the legal and constitutional position stated thus :-
“(3) The doctrine of immunity from self-crimination is
founded on the presumption of innocence whichcharacterises the English system of criminal justice, and a
fundamental principle of that system of justice (which
differs from the inquisitorial procedure obtaining inFrance and some other Continental countries) is that it is
for the prosecution to prove the guilt of the accused andthat the latter need not make any statement if he does not
want to. In the words of Mayne in his “Criminal Law” “It
is the business of the Crown to “prove him guilty, and heneed not do anything but stand by and see what case has
been made out against him…. He is entitled to rely on the
defence that the evidence as it stands is inconclusive andthat the Crown is bound to make it conclusive without any
help from him.”
The English Criminal Evidence Act of 1898 provides
that although the accused is competent to be a witness on
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10against himself, and that if he does give evidence in his
defence, the prosecution may comment upon suchevidence but must not comment upon his omission to do
so. In England the protection extends to witnesses also.
The Fifth Amendment to the Constitution of the United
States of America has adopted the same principle by
laying down that no person shall be compelled in any
criminal case to be a witness against himself. Indeed, in
the United States judicial interpretation has enlarged the
scope of the privilege though it must be stated that to
some extent this has been done with the aid of the Fourth
Amendment, which guarantees the right of privacy, and
the like of which is not provided for in England or India.
(4) The doctrine of protection against self-crimination
has also to a substantial extent been recognised in the
Anglo-Indian administration of criminal justice by
incorporation into various statutory provisions, but
definite form to it was given for the first time by Article
20(3) of our Constitution, though the rule laid down by
the latter is narrower than the Anglo American rule, since
the privilege has been kept confined to persons ‘accused of
any offence’, an ‘offence’ being defined by section 3 (38) of
the General Clauses Act as meaning ‘any act or omission
made punishable by any law for the time being in force”.
Witnesses in India have been left untouched by the
Constitution and continue to be governed by section 132
and other provisions of the Evidence Act.
(5) The exact extent of the privilege against self-
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crimination has been the subject-matter of some
controversy, and it is being increasingly felt that thedoctrine on which it is based should undergo curtailment
rather than extension, Prof. Wigmore in his ‘Evidence’ (3rd
Ed.) in Vol. 8 at pages 304 to 320 has dealt with the
matter exhaustively and has come to the conclusion thatalthough the privilege serves to stimulate prosecuting
officers to have an independent search for evidence, it is
apt to be used as a hiding place for crime and only the
guilty stand in need of it, and because the accusedperson’s rights are under current procedure amply
protected without the privilege, it should be kept within
the strictest possible limits. In the leading case of M.P.
Sharma v. Satish Chandra AIR 1954 S.C. 300 (A) our
Supreme Court, after considering the background of the
privilege, held: ‘There is no inherent reason to construethe ambit of this fundamental right as comprising a very
wife range’.
(6) In the same case, analysing the terms in which the
right under Article 20(3) has been granted their Lordshipshave pointed out that it consists of three components: (1)
it is a right pertaining to a person “accused of an offence”;
(2) it is a protection against “compulsion to be a witness”,
and (3) it is a protection against such compulsionresulting in his giving evidence against himself.”
10. Applying the legal position in the instant case, I find that
applicant Uday admitted his and his mother’s signatures on the document
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of Will and also explained under what circumstances signatures were
made. But there is no iota of evidence anywhere even in the cross-
examination to show that he or his mother forged the document of Will.
As a matter of fact it is case of the prosecution that the Will was forged
by the accused Nos. 1 and 2 only and not by applicant Uday and his
mother. Merely because Uday admitted that he and his mother had
signed the said Will and thus revealed the truth, they cannot be deprived
of the protection given by the said proviso. I thus hold that applicants are
liable to be discharged in view of the legal protection to them. It is clear
that accused Nos. 1 and 2 have been protracting their trial for double
murder and trial is being delayed. This Court takes serious view of the
delaying tactics adopted by accused Nos. 1 and 2. Hence, this Court is of
the opinion that exemplary costs against accused Nos. 1 and 2 will have
to be imposed.
11. In the result, I make the following order.
Order
(i) Order dated 06-05-2009 below Exhibit 118 in
Sessions Trial No. 76 of 2004 is quashed and set aside.
(ii) The application Exhibit 118 is allowed and the
applicants are discharged from Sessions Trial No. 76 of 2004.
(iii) The accused Nos. 1 and 2 Shripad Dattatray Mande
and Damodhar Konduji Ingale shall pay cost of Rs.5,000/- (Rupees Five
Thousand Only) each to the State of Maharashtra in the trial Court
within four weeks from today.
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(iv) If the cost is not paid, the Court shall recover the
same by following the procedure to be followed for recovery of fine.
(v) Trial Court shall now complete the trial within four
months from today.
JUDGE
adgokar
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