{"id":126669,"date":"2010-04-15T00:00:00","date_gmt":"2010-04-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/uday-ashokrao-joshi-vs-jagjit-singh-on-15-april-2010"},"modified":"2018-10-18T03:05:08","modified_gmt":"2018-10-17T21:35:08","slug":"uday-ashokrao-joshi-vs-jagjit-singh-on-15-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/uday-ashokrao-joshi-vs-jagjit-singh-on-15-april-2010","title":{"rendered":"Uday Ashokrao Joshi vs Jagjit Singh; on 15 April, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Uday Ashokrao Joshi vs Jagjit Singh; on 15 April, 2010<\/div>\n
Bench: A. B. Chaudhari<\/div>\n
                                                     1\n\n                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                          NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                                                                    \n               CRIMINAL REVISION APPLICATION No.152 OF 2009\n\n\n\n\n                                                                          \n    1) Uday Ashokrao Joshi,\n        Adult, Service, R\/o Alsi Plot,\n\n\n\n\n                                                                         \n        Akola, Tq. and Dist. Akola\n        (Maharashtra)\n\n    2) Smt. Kumudini Ashokrao Joshi,\n        Adult, Household, \n\n\n\n\n                                                        \n        R\/o Alsi Plots, Akola, \n        Tq. and Dist. Akola\n        (Maharashtra)\n\n             .. Versus ..\n                                   ig                                 ..  APPLICANTS\n                                 \n    State of Maharashtra,\n    By Police Station Officer, \n    Police Station Ramdaspeth,\n    Akola, Tq. and Dist. Akola, \n      \n\n    through Govt. Pleader, \n    High Court, Nagpur.                                               .. RESPONDENT\n   \n\n\n\n    ----------------------------------------------------------------------------------------------------\n    Mr. A.S. Chandurkar, Advocate for the applicants,\n    Mr. D.B. Patel, A.P.P. for the respondent.\n\n\n\n\n\n    ----------------------------------------------------------------------------------------------------\n\n                                          CORAM:- A.B. CHAUDHARI, J.\n                                          DATED :- 15    APRIL, 2010\n                                                      th\n                                                                    \n\n\n\n\n\n    J U D G M E N T  \n<\/pre>\n
    1.       Heard.  Rule Returnable forthwith.  Heard with consent of learned <\/p>\n
    Advocate for the parties.\n<\/p>\n
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\n                                               2<\/span><\/p>\n
    2.      By this revision application order dated 06-05-2009 below Exhibit <\/p>\n
    118   for   discharge   in   Sessions   Trial   No.76\/2004   is   challenged   by   the <\/p>\n
    applicants, who have been arrayed as accused persons during the course <\/p>\n
    of trial under the orders made by this Court with reference to power <\/p>\n
    under Section 319 of the Criminal Procedure Code.\n<\/p>\n
    3.      The prosecution case in brief is that original two principal accused <\/p>\n
    Shripad Dattatray Mande and Damodhar Konduji Ingale are facing trial <\/p>\n
    for double murder of Purushottam Laxman Pimple and his wife Pratibha <\/p>\n
    Pimple.  Though accused persons were close relatives of one Shakuntala <\/p>\n
    Mande, she had given the property under Will to said Purushottam and <\/p>\n
    his wife rather than the accused No.1 and therefore, both these accused <\/p>\n
    persons had made a plan to commit murder of the beneficiaries of Will.\n<\/p>\n
    Not   only   that,   these   two   main   accused   persons   forged   the   Will   dt.\n<\/p>\n
    15-11-2003 forging the signature of Shakuntala Mande etc. in favour of <\/p>\n
    accused No.1.  The allegations against these two applicants before me are <\/p>\n
    that   they   are   attesting   witnesses   to   the   said   forged   Will   dated <\/p>\n
    15-11-2003.     After   commencement   of   the   trial,   applicant   Uday   was <\/p>\n
    examined   before   the   Sessions   Judge   and   in   paragraphs   3   and   4   in <\/p>\n
    examination-in-chief he stated that he had signed the said Will Exhibit <\/p>\n
    46,   so   also   his   mother   as   attesting   witnesses   but   on   the   false <\/p>\n
    representation made by the said two accused persons and they were not <\/p>\n
    aware what was scribed in the Will.   Needless to state that Uday was <\/p>\n
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\n                                               3<\/span><\/p>\n
    examined as prosecution witness.  It is only on the basis of this version <\/p>\n
    recorded by the Sessions Court so also the statement before the Taluka <\/p>\n
    Inspector of Land Records the principal accused Shripad and Damodhar <\/p>\n
    moved an application under Section 319 of the Criminal Procedure Code <\/p>\n
    requesting   the   trial   Court   to   issue   accused   summons   to   the   present <\/p>\n
    applicants i.e. Uday and his mother Kumudini and try them with those <\/p>\n
    main accused persons. The trial Court rejected that application, against <\/p>\n
    which accused persons filed criminal revision before this Court, which <\/p>\n
    was allowed by this Court and consequently these two applicants were <\/p>\n
    arrayed   as  accused   persons  in  the   said   Sessions  Trial.   The   said   order <\/p>\n
    stood confirmed in the Hon’ble Supreme Court which reserved liberty in <\/p>\n
    favour of the applicants  to apply for discharge before  the trial Court.\n<\/p>\n
    Accordingly, the applicants filed application Exhibit 118 which has been <\/p>\n
    rejected by the trial Court and hence, this revision application.\n<\/p>\n
    4.      In support of the revision application, Mr. Chandurkar vehemently <\/p>\n
    argued inviting my attention to the recorded evidence at the trial Court <\/p>\n
    and the case of the prosecution from the beginning that applicants Uday <\/p>\n
    and his mother Kumudini were shown as prosecution witnesses against <\/p>\n
    the   principal   accused   persons   in   the   chargesheet   relating   to   double <\/p>\n
    murder as well as forgery of the Will and when applicant Uday entered <\/p>\n
    the witness box, he candidly admitted his signature and also explained <\/p>\n
    how and under what circumstances the signatures as attesting witnesses <\/p>\n
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\n                                                   4<\/span><\/p>\n
    were put by him and his mother.  He also made similar statement Exhibit <\/p>\n
    54   before   the   Taluka   Inspector   of   Land   Records   at   the   instances   of <\/p>\n
    accused Nos. 1 and 2.   It is on the basis of this evidence Uday and his <\/p>\n
    mother  were   made  accused  at the  instance   of  accused   Nos.  1 and  2-\n<\/p>\n
    Shripad and Damodhar.   The learned Advocate for the applicants thus <\/p>\n
    submitted that Section 132 of the Indian Evidence Act clearly protects a <\/p>\n
    witness   from   being   prosecuted   and   the   protection   given   by   the   said <\/p>\n
    Section is available to both the applicants and therefore, they cannot be <\/p>\n
    prosecuted and hence, they are liable to be discharged in the Sessions <\/p>\n
    Trial.   In the light of the said protection and no evidence about their <\/p>\n
    involvement in alleged crime of forgery against them, the trial if allowed <\/p>\n
    to   continue   against   them   would   be   exercised   in   futility   besides <\/p>\n
    harassment to the applicants.\n<\/p>\n
    5.      According to Mr. Chandurkar, at any rate, the major offence about <\/p>\n
    double   murder   is   against   the   accused   Nos.   1   and   2   and   it   is   at   the <\/p>\n
    instance of accused persons the applicants were arrayed as accused and <\/p>\n
    not at the instance of State.  He cited following decisions:-\n<\/p>\n
    i)AIR 1989 SC 598, State (Delhi Admn.) .vs. Jagjit Singh;\n<\/p>\n
    ii)2003 Cri.L.J. 2909, Janardan Subrao Pai .vs. Chandra Kamalaksha Pai <\/p>\n
    and another.\n<\/p>\n
    6.      Mr.   Patel,   the   learned   A.P.P.   for   the   State   opposed   the   criminal <\/p>\n
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\n                                              5<\/span><\/p>\n
    application   and   argued   that   fact   about   the   signatures   as   attesting <\/p>\n
    witnesses having thus been admitted, the applicants are clearly guilty of <\/p>\n
    the offence under Sections 467 and 473 of the Indian Penal Code and <\/p>\n
    that is why the trial Court has rightly rejected the application Exhibit <\/p>\n
    118.  <\/p>\n
    7.       I have perused the chargesheet and the evidence so far recorded.\n<\/p>\n
    Having heard the learned Counsel for the rival parties and having seen <\/p>\n
    the evidence of applicant Uday before the Sessions Court on 16-9-2005 <\/p>\n
    so also the cross-examination, it is clear that applicant Uday has fairly <\/p>\n
    and candidly stated in his evidence under what circumstances and how <\/p>\n
    the document was signed by them as attesting witnesses.  In the evidence <\/p>\n
    he has clarified as to how he and his mother were misled by the main <\/p>\n
    accused persons Shripad and Damodhar and consequently had signed the <\/p>\n
    Will  as attesting witnesses and as to how he made a statement Exhibit <\/p>\n
    54 before the Taluka Inspector of Land Records.   This is the sum and <\/p>\n
    substance of the evidence, which is sought to be used by the accused 1 <\/p>\n
    and 2 against them.  At this stage, it is necessary to quote Section 132 of <\/p>\n
    the Indian Evidence Act, 1872.\n<\/p>\n
             “132.         Witness not excused from answering on
\n             ground that answer will culminate – A witness shall
\n             not be excused from answering any question as to any
\n             matter relevant to the matter in issue in any suit or in <\/p>\n
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\n                                                6<\/span><\/p>\n
            any civil or criminal proceeding, upon the ground that
\n            the answer to such question will criminate, or may tend <\/p>\n
            directly or indirectly to criminate, such witness, or that <\/p>\n
            it will expose, or tend directly or indirectly to expose,
\n            such witness to a penalty or forfeiture of any kind
\n            Proviso   –  Provided   that   no   such   answer,   which   a <\/p>\n
            witness shall be compelled to give, shall subject him to
\n            any arrest or prosecution, or be proved against him in
\n            any criminal proceeding, except a prosecution for giving
\n            false evidence by such answer .”<\/p><\/blockquote>\n
            Reading   of   the   above   provision  to   my  mind   clearly   shows  that <\/p>\n
    Uday could not have excused himself from answering the questions about <\/p>\n
    signatures as attesting witnesses on forged Will on the ground that the <\/p>\n
    answer to such questions will criminate him and his mother.  Therefore, <\/p>\n
    proviso to this Section provides for a protection to such witnesses.   After <\/p>\n
    providing a mandate to a witness by substantive provision under Section <\/p>\n
    132 of Indian Evidence Act not to excuse from answering, care has been <\/p>\n
    taken  to   protect  such  a  witness  vide  proviso  above  who  may  become <\/p>\n
    vulnerable to criminal proceedings or prosecution due to truthful answers <\/p>\n
    given by him.  Thus there is a specific object in incorporating the proviso <\/p>\n
    to the said section and affording protection to such witness to encourage <\/p>\n
    the witness to come forward and help in the administration of justice.\n<\/p>\n
    The   purpose   is   obvious   that   the   State   must   get   the   witnesses   while <\/p>\n
    making its efforts in investigation to testify the truth before Court.  The <\/p>\n
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\n                                                7<\/span><\/p>\n
    protection is however not available if the witness give false evidence by <\/p>\n
    such answer.\n<\/p>\n
    8.    In State (Delhi Admn.) .vs. Jagjit Singh, AIR 1989 SC 598, the <\/p>\n
    Hon’ble Supreme Court has had to say thus –\n<\/p>\n
          “13.     Therefore, a witness is legally bound to answer any
\n          question which is relevant to the matter in issue even if the
\n          answer to such question is likely to criminate him directly <\/p>\n
          or   indirectly.     Proviso   to   S.   132   expressly  provides   that <\/p>\n
          such answer which a witness is compelled to give shall not
\n          subject him to any arrest or prosecution nor the same can
\n          be proved against him in any criminal proceeding except a <\/p>\n
          prosecution for giving false evidence by such answer.  The
\n          provisions   of   proviso   to   S.   132,   Evidence   Act,   clearly
\n          protect a witness from being prosecuted on the basis of the <\/p>\n
          answers given by him in a criminal proceeding which tend <\/p>\n
          to   criminate   him   directly   or   indirectly.     In   view   of   this
\n          provision,   the   apprehension   of   the   respondent   that   his
\n          evidence as approver will be used against him in the other <\/p>\n
          four   criminal   cases   where   he   figures   as   an   accused   is
\n          without any basis.   On the other hand, he is absolutely
\n          protected   from  criminal   prosecution  on  the   basis  of  the
\n          evidence   to   be   given   by   him   when   examined   by   the <\/p>\n
          prosecution   as   an   approver   in   the   said   case.     This
\n          submission of the respondent is, therefore, not tenable.  It
\n          is pertinent to refer in this connection the decision of this
\n          Court   in   Laxmipat   Choraria   v.   State   of   Maharashtra,<\/a>
\n          (1968) 2 SCR 624 : (AIR 1968 SC 938 at p. 942) wherein <\/p>\n
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\n                                                  8<\/span><\/p>\n
          it has been observed by Hidayatullah, J. as he then was
\n          that :-\n<\/p><\/blockquote>\n
          “…….. Under S. 132 a witness shall not be excused from <\/p>\n
          answering any question as to any matter relevant to the
\n          matter in issue in any criminal proceeding (among others)
\n          upon   the   ground   that   the   answer   to   such   question   will <\/p>\n
          incriminate  or  may  tend   directly  or  indirectly to  expose
\n          him to a penalty or forfeiture of any kind.  The safeguard
\n          to   this   compulsion   is   that   no   such   answer   which   the
\n          witness is compelled to give exposes him to any arrest or <\/p>\n
          prosecution or can it be proved against him in any criminal <\/p>\n
          proceeding except a prosecution for giving false evidence
\n          by such answer.”\n<\/p><\/blockquote>\n
          14.       So   Section   132   of   the   Evidence   Act   sufficiently
\n          protects him since his testimony does not go against him.”<\/p><\/blockquote>\n
          In  Janardan   Subrao   Pai   .vs.   Chandra   Kamalaksha   Pai   and <\/p>\n
    another, 2003 Cri.L.J. 2909, a Single Judge of this Court held thus :-\n<\/p>\n
          “5.       ………..       On   plain   language   of   this   Section,   if   a
\n          person is summoned by the Court to appear as witness in
\n          another criminal case, or for that matter, as witness in any
\n          suit or in any civil proceeding, then he would be obliged to <\/p>\n
          appear and depose on all matters relevant to the matter in
\n          issue in that proceeding and could not be excused merely
\n          because any statement made by him during the evidence
\n          would criminate him or would tend directly or indirectly
\n          to criminate him in the pending prosecution against him.\n<\/p><\/blockquote>\n
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\n                                               9<\/span><\/p>\n
           To put it differently, the evidence of Respondent No.1 in
\n           the companion criminal case, cannot be assumed to be out <\/p>\n
           of free will, but was obviously out of legal obligation.  In <\/p>\n
           such a situation, the proviso would come into play and any
\n           answer given by the respondent No.1 as witness in another
\n           case   can   be   used   against   him   only   for   prosecution   for <\/p>\n
           giving false evidence and for no other purpose.”\n<\/p><\/blockquote>\n
    9.     In  Subedar   v.   State,   AIR   1957   Allahabad   396,   James,   J <\/p>\n
    considered the legal and constitutional position stated thus :-\n<\/p>\n
           “(3)  The doctrine of immunity from self-crimination is
\n           founded   on   the   presumption   of   innocence   which <\/p>\n
           characterises the English system of criminal justice, and a
\n           fundamental   principle   of   that   system   of   justice   (which
\n           differs   from   the   inquisitorial   procedure   obtaining   in <\/p>\n
           France and some other Continental countries) is that it is
\n           for the prosecution to prove the guilt of the accused and <\/p>\n
           that the latter need not make any statement if he does not
\n           want to.  In the words of Mayne in his “Criminal Law”  “It
\n           is the business of the Crown to “prove him guilty, and he <\/p>\n
           need not do anything but stand by and see what case has
\n           been made out against him….  He is entitled to rely on the
\n           defence that the evidence as it stands is inconclusive and <\/p>\n
           that the Crown is bound to make it conclusive without any
\n           help from him.”\n<\/p><\/blockquote>\n
                   The English Criminal Evidence Act of 1898 provides
\n           that although the accused is competent to be a witness on
\n           his own behalf, he cannot be compelled to give evidence <\/p>\n
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\n                                          10<\/span><\/p>\n
     against himself, and that if he does give evidence in his
\n     defence,   the   prosecution   may   comment   upon   such <\/p>\n
     evidence but must not comment upon his omission to do <\/p>\n
     so.   In England the protection extends to witnesses also.\n<\/p><\/blockquote>\n
     The Fifth Amendment to the Constitution of the United
\n     States   of   America   has   adopted   the   same   principle   by <\/p>\n
     laying   down   that   no   person   shall   be   compelled   in   any
\n     criminal case to be a witness against himself.   Indeed, in
\n     the United States judicial interpretation has enlarged the
\n     scope   of   the   privilege   though   it   must   be   stated   that   to <\/p>\n
     some extent this has been done with the aid of the Fourth <\/p>\n
     Amendment, which guarantees the  right  of privacy, and
\n     the like of which is not provided for in England or India.\n<\/p>\n
     (4)     The doctrine of protection against self-crimination
\n     has   also   to   a   substantial   extent   been   recognised   in   the
\n     Anglo-Indian   administration   of   criminal   justice   by <\/p>\n
     incorporation   into   various   statutory   provisions,   but <\/p>\n
     definite form to it was given for the first time by Article
\n     20(3) of our Constitution, though the rule laid down by
\n     the latter is narrower than the Anglo American rule, since <\/p>\n
     the privilege has been kept confined to persons ‘accused of
\n     any offence’, an ‘offence’ being defined by section 3 (38) of
\n     the General Clauses Act as meaning ‘any act or omission
\n     made punishable by any law for the time being in force”.\n<\/p>\n
     Witnesses   in   India   have   been   left   untouched   by   the
\n     Constitution and continue to be governed by section 132
\n     and other provisions of the Evidence Act.\n<\/p>\n
     (5)     The   exact   extent   of   the   privilege   against   self-\n<\/p>\n
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\n                                                11<\/span><\/p>\n
          crimination   has   been   the   subject-matter   of   some
\n          controversy,   and   it   is   being   increasingly   felt   that   the <\/p>\n
          doctrine on which it is based should undergo curtailment <\/p>\n
          rather than extension, Prof. Wigmore in his ‘Evidence’ (3rd
\n          Ed.)   in   Vol.   8   at   pages   304   to   320   has   dealt   with   the
\n          matter exhaustively and has come to the conclusion that <\/p>\n
          although   the   privilege   serves   to   stimulate   prosecuting
\n          officers to have an independent search for evidence, it is
\n          apt to be used as a hiding place for crime and only the
\n          guilty   stand   in   need   of   it,   and   because   the   accused <\/p>\n
          person’s   rights   are   under   current   procedure   amply <\/p>\n
          protected without the privilege, it should be kept within
\n          the strictest possible limits.   In the leading case of M.P.\n<\/p><\/blockquote>\n
          Sharma   v.   Satish   Chandra   AIR   1954   S.C.   300   (A)   our
\n          Supreme Court, after considering the background of the
\n          privilege, held: ‘There is no inherent reason to construe <\/p>\n
          the ambit of this fundamental right as comprising a very
\n          wife range’.\n<\/p><\/blockquote>\n
          (6)      In the same case, analysing the terms in which the
\n          right under Article 20(3) has been granted their Lordships <\/p>\n
          have pointed out that it consists of three components: (1)
\n          it is a right pertaining to a person “accused of an offence”;
\n          (2) it is a protection against “compulsion to be a witness”,
\n          and   (3)   it   is   a   protection   against   such   compulsion <\/p>\n
          resulting in his giving evidence against himself.”\n<\/p><\/blockquote>\n
    10.   Applying   the   legal   position   in   the   instant   case,   I   find   that <\/p>\n
    applicant Uday admitted his and his mother’s signatures on the document <\/p>\n
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\n                                               12<\/span><\/p>\n
    of  Will   and   also   explained   under   what  circumstances  signatures  were <\/p>\n
    made.     But  there   is  no   iota   of   evidence   anywhere   even  in  the   cross-\n<\/p>\n
    examination to show that he or his mother forged the document of Will.\n<\/p>\n
    As a matter of fact it is case of the prosecution that the Will was forged <\/p>\n
    by the accused Nos. 1 and 2 only and not by applicant Uday and his <\/p>\n
    mother.     Merely   because   Uday   admitted   that   he   and   his   mother   had <\/p>\n
    signed the said Will and thus revealed the truth, they cannot be deprived <\/p>\n
    of the protection given by the said proviso. I thus hold that applicants are <\/p>\n
    liable to be discharged in view of the legal protection to them.  It is clear <\/p>\n
    that accused Nos. 1 and 2 have been protracting their trial for double <\/p>\n
    murder and trial is being delayed.  This Court takes serious view of the <\/p>\n
    delaying tactics adopted by accused Nos. 1 and 2.  Hence, this Court is of <\/p>\n
    the opinion that exemplary costs against accused Nos. 1 and 2 will have <\/p>\n
    to be imposed.\n<\/p>\n
    11.     In the result, I make the following order.\n<\/p>\n
                                     Order<\/p>\n
                   (i)   Order   dated   06-05-2009   below   Exhibit   118   in
\n    Sessions Trial No. 76 of 2004 is quashed and set aside.\n<\/p>\n
                  (ii)   The   application   Exhibit   118   is   allowed   and   the
\n    applicants are discharged from Sessions Trial No. 76 of 2004.\n<\/p>\n
                 (iii) The accused Nos. 1 and 2 Shripad Dattatray Mande
\n    and Damodhar Konduji Ingale shall pay cost of Rs.5,000\/- (Rupees Five
\n    Thousand   Only)   each   to   the   State   of   Maharashtra   in   the   trial   Court
\n    within four weeks from today.\n<\/p>\n
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\n                                       13<\/span><\/p>\n
                 (iv) If the cost is not paid, the Court shall recover the
\n    same by following the procedure to be followed for recovery of fine.\n<\/p>\n
                (v)    Trial Court shall now complete the trial within four
\n    months from today.\n<\/p>\n
                                 JUDGE<\/p>\n
    adgokar<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:51:01 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Uday Ashokrao Joshi vs Jagjit Singh; on 15 April, 2010 Bench: A. B. Chaudhari 1 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-126669","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUday Ashokrao Joshi vs Jagjit Singh; on 15 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/uday-ashokrao-joshi-vs-jagjit-singh-on-15-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Uday Ashokrao Joshi vs Jagjit Singh; 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