Bombay High Court
Devidas Madhukar Daberao vs State Of Maharashtra on 18 June, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Appeal489.06.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.489 OF 2006
Devidas Madhukar Daberao,
Aged 40 years, Occupation-Service,
R/o. Kadone Wadi, Patur,
Tahsil-Patur, District-Akola. .. APPELLANT
VERSUS
State of Maharashtra .. RESPONDENT
..........
Ms. Ritu Jog, Advocate h/f Shri A.C. Dharmadhikari, Advocate for Appellant,
Shri S.D. Sirpurkar, APP for Respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 18.06.2018.
ORAL JUDGMENT
1] In the present appeal, there is a challenge to the judgment and order dated 1.8.2006 delivered by the learned Ad-hoc Additional Sessions Judge, Akola in Other Misc. Criminal Case No.36/2006, whereby the learned Ad-hoc Additional Sessions Judge has convicted the accused under section 193 of the Indian Penal Code as per the provisions of Section 344 of the Code of Criminal Procedure. ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 01:26:11 ::: Appeal489.06.odt 2
2] The brief facts are as under :
The appellant is a Talathi and was working at Gavandgaon, Tahsil-Patur, District-Akola. A notice was issued by the learned Ad-hoc Additional Sessions Judge, Akola and proceedings were initiated against him and other two persons who were Circle Inspectors namely Shri Khursude and Jadhav as per the directions of the Court while deciding Land Acquisition Case No.224/1993. The allegations against the appellant were that the appellant and two other persons were serving as Talathi from 10.10.1990 onwards and they had allegedly fabricated 7/12 extracts of an acquired land bearing Survey No.275/2. Shri Jadhav had allegedly certified those mutation entries in order to cause wrongful gain to the claimant and loss to the government in Land Acquisition Case No.224/1993. The allegations against the appellant were that although they were aware of the fact that these documents were to be relied upon by the court who is entertaining the reference and those were fabricated documents and on the basis of those documents they believed that the court would be granting enhanced compensation to the claimant Manubai, they were indulged in the offence and had committed the offence under section 193 of the Indian Penal Code read with Section 344 of the Code of Criminal Procedure. The reply has been filed by the noticee vide Exh.5.
3] I have heard Ms. Ritu Jog, learned counsel h/f Shri A.C. Dharmadhikari, learned counsel for the appellant as well as Shri S.D. Sirpurkar, learned APP for the respondent-State.
::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 01:26:11 ::: Appeal489.06.odt 3 4] Learned counsel for the appellant Ms. Ritu Jog vehemently argued that the appellant had acted bonafidely in good faith and there was no intention of fabricating any documents. She further submitted that it could not be said that the appellant had committed the offence of either fabricating the documents deliberately and intentionally to cause wrongful gain to the appellant and loss to the government. She contended that the appellant does not dispute that there was change in the mutation entry in the second 7/12 extract, however, the said change was not made with any mala-fide intention as such. Therefore, according to her, the provisions of under Section 193 of the Indian Penal Code are not attracted.
5] Per contra, the learned Additional Public Prosecutor Shri S.D. Sirpurkar has supported the judgment delivered by the learned trial Judge and contended that the learned trial judge has rightly assessed the facts and circumstances and has taken a suo-motu action under the provisions of Section 344 of the Code of Criminal Procedure. 6] I have gone through the entire record of the case with the assistance of the learned counsel for the parties. No doubt, the notice issued by the learned trial judge makes it clear that there was certainly a change in the number of the trees in the field of landlady Manubai. However, in this regard, the explanation given by the appellant-noticee indicates that at the relevant time the appellant had joined the services about seven to eight months back and he was very prompt in his services. The claimant Manubai had applied on 10.9.1990 to the appellant and requested to take ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 01:26:11 ::: Appeal489.06.odt 4 the inspection of the land ad-measuring 3.92 HR. She also requested to make the entries in the 7/12 extract about the standing trees in her field. In view thereof, the appellant himself visited the field of Manubai and inspected the spot. He found that there were 261 trees in the field of Manubai. Accordingly, he took the entry in the pherphar extract on 13.9.1991. The said entry was subsequently certified by the Circle Inspector i.e. noticee Shri Jadhav on 27.9.1991. According to the appellant, in the earlier records, the figure of trees either it was 57 to 37 which was not visible. Thus, according to the appellant, he had acted bonafidely in good faith and there was no intention to fabricate the documents. According to him, there was increase of teak wood as it naturally grows. The appellant further submitted that he was not given an opportunity to lead his oral evidence and as such he was not given chance to put up his case before the court.
7] On carefully assessing of the notice issued by the learned trial Judge and the explanation given by the appellant, it is noticed that no doubt there was increase in number of trees mentioned in the second 7/12 extract with regard to the land bearing Survey No.275/2 of village Sawargaon, Tahsil-Patur. However, if at all the learned trial Judge had a doubt about the said figure with regard to the trees, he should have appointed the Court Commissioner in that regard to visit the spot and make the picture clear about the trees on the land. However, the learned trial Judge instead of appointing the Court Commissioner or giving an opportunity to the appellant to put up his case on oath, issued the present notice to the appellant. It is clear from the case put up by the appellant that there was absolutely no intention to make the changes with ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 01:26:11 ::: Appeal489.06.odt 5 regard to the trees in 7/12 extract. Under the provisions of Section 344 of the Code of Criminal Procedure, it is necessary that the witnesses appearing in the proceeding should have knowingly or wilfully given a false evidence or had fabricated a false evidence with the intention that such evidence should be used in such proceedings. In the instant case, no intention or mens rea is found to fabricate the documents as such.
8] In Mohammad Ibrahim .vs. B. Rama Rao, reported in AIR 1976 SC 1822, the Hon'ble Apex Court has held that the essentials of the Code of Criminal Procedure (5 of 1898), Section 479-A (344) of the Code of Criminal Procedure, mere wrong statement is not enough for sanctioning the prosecution. It is held under section 479-A of the Code of Criminal Procedure that not only is it necessary that the court must form the opinion that the witness had intentionally given false evidence, but further it is necessary that the court must come to the conclusion that for the eradication of the evils of perjury and in the interests of justice it is expedient that the witness should be prosecuted for the offence which appears to have been committed by him. 9] Learned counsel for the appellant has placed reliance on the judgment of the Apex Court in the case of Dr. S.P. Kohli, Civil Surgeon, Ferozepur .vs. High Court of Punjab and Haryana through Registrar, reported in (1979) 1 SCC 212, wherein it is held in para 17 that "it is now well-settled that the prosecution for perjury should be sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 01:26:11 ::: Appeal489.06.odt 6 recognised that there must be a prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge".
10] In the instant case, the prosecution has failed to prove that the appellant had intentionally and deliberately changed the 7/12 extract with regard to the number of trees so that the land owner Manubai should be benefited for enhanced compensation. The learned trial Judge should have considered the case in its right perspective. In view of the facts and circumstances of the case and the judgment passed by the learned trial Judge is to be quashed and set aside. Hence the following order :
1] Criminal Appeal No.489/2006 is allowed. 2] The judgment and order dated 1.8.2006 delivered by the Ad-hoc Additional
Sessions Judge, Akola in Other Misc. Criminal Case No.36/2006 is hereby quashed and set aside.
3] His bail bonds shall stand cancelled.
JUDGE
Gulande
::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 01:26:11 :::