Gottimukkala Suryanarayana Raju vs State

Both these revision petitions are against the show-cause notices issued under S. 344 Cr.P.C. The petitioner in Crl.R.C. No. 397/84 is P.W. 11 and the petitioner in Crl.R.C. No. 399/84 is P.W. 9. In S.C. No. 5 of 84, on the file of the Sessions Judge, Vizianagaram, P.Ws. 9 and 11 were panchas in the panchanama prepared by the investigating officer i.e. P.W. 13. In the course of judgment, the learned Sessions Judge, with reference to the preparation of panchanama of M.Os. 3 and 4, did not place reliance on the evidence of P.W. 13, the investigating officer. The relevant portion in the judgment is to the following effect :-

"It is most unsafe to place reliance on the evidence of P.W. 13 which is not supported by the so-called respectable mediators. The benefit of doubt should normally go to the accused. Hence, I find, that no reliance can be placed on the so-called arrests, seizures and recoveries, and hence, the prosecution could not prove beyond reasonable doubt, that in pursuance of the information given by A-1 and A-2 M.Os. 1 to 4 were discovered."

While giving benefit of doubt and also disbelieving the evidence of P.W. 13, the learned Judge adverted to the evidence of P.Ws. 9 and 11. P.W. 9 is the village munsif and P.W. 11 is a person belonging to the village. P.W. 9 is the scribe of Ex. P-11 to P-15, and both the witnesses signed in Exs.P-11 to P-15. The version mentioned in Ex. P-11 to P-15 is, that both the accused were arrested in the mango garden, and were interrogated in the absence of the two witnesses, and that they gave information as mentioned in Exs.P-11 and P-12 and thereupon Exs.P-11 and P-12 were drafted in the mango garden itself. Apart from certain minor discrepancy, pointed out in the evidence of P.Ws. 9 and 11, the main emphasis is upon their evidence that they have stated that Exs.P-11 and P-12 were drafted at the police station, but not at the mango garden. It was mentioned in the reports that they were drafted in the mango garden. This discrepancy, with regard to the drafting of Exs.P-11 and P-12 appears to have been given undue emphasis by the learned Sessions Judge. The relevant portion of the judgment is as follows :-

"Of the version mentioned in Exs.P-11 and P-12 is true, the present evidence of P.Ws. 9 and 11 given in the Court is false. If their present evidence is true, and the version mentioned in Exs.P-11 and P-12 is not true, obviously they are guilty of fabricating false evidence and documents containing false recitals therein, knowing fully well, that they will be used as evidence in this case in the Criminal Court."

The show-cause notices have been issued, to the petitioners u/s. 344 Cr.P.C. as a sequel to the conclusion referred to above in the judgment. S. 344(1) which is relevant, is as follows :-

"If, at the time of delivery of any judgment of final order disposing of any judicial proceeding, a Court of Session of Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extended to three months, or to fine which may extend to five hundred rupees, or with both."

Section 344(1) Cr.P.C. comprises two facts. The initial aspect essential for attracting S. 344 is the expression of opinion by the Court that the witness appearing in the proceedings knowingly or wilfully has given false evidence or fabricated false evidence. The second aspect is that, having come to the conclusion that a false evidence has been given or fabricated, the Court should be satisfied that it is necessary and expedient in the interests of justice that the witness should be tried, as provided under S. 344 Cr.P.C. Unless, these two ingredients are satisfied, the proceedings under S. 344 cannot be initiated. With regard to the evidence of P.Ws. 9 and 11, in so far as the first aspect is concerned, the finding arrived at by the learned Judge is lukewarm. It is categorically stated in the judgment that it is not safe to rely upon the evidence of P.W. 13 and it is not supported by the evidence of mediators. In so far as the mediators are concerned the discrepancy that is highlighted is that their evidence that panchanama was drafted in the police station is discrepant with the recital in Exs.P-11 to P-15 that it was drafted in the mango garden. The discrepancy is only confined to the sites of preparation of panchanama and on this basis P.Ws. 9 and 11 cannot be attributed with fabricating false evidence, much less giving false evidence. The sessions Court, having squarely faulted P.W. 13 Inspector for unreliable evidence, based on doubtful panchanama, erred in apportioning the blame on P.Ws. 9 and 11. The learned Judge glossed over the crucial aspect namely, that P.W. 13 Inspector was the architect of panchanama and P.Ws. 9 and 11 were called upon to subscribe their signatures as to the authenticity of panchanama. In the circumstances, the shifting of blemish with reference to panchanama to P.Ws. 9 and 11 is not warranted. Further the question of giving false evidence does not arise in a situation where the evidence is discrepant from the version given in panchanama. Further, in any event, the discrepancy is not such a major or devastating one as to disbelieve and reject Exs.P-11 to P-15 in toto on this solitary and slender discrepancy. Therefore, the initial ingredient necessary for invoking S. 344 Cr.P.C. is not satisfied. There is yet another infirmity. The issuance of show-cause notices to the petitioners appears to be mechanical. It has been stated in the show-cause notice that the witnesses had knowingly or wilfully given false evidence or fabricated false evidence. Therefore, it is evident that the show-cause notice is not obviously based upon a firm expression of opinion of conclusion in the judgment. The show-cause notice is intended to divulge a prima facie opinion, with regard to the offence under S. 344 and apprise the imputations or charges against the persons and afford an opportunity to explain, with regard to the allegations or charges levelled against them. The show-cause notices are issued mechanically without adverting to any circumstances or prima facie opinion regarding false evidence or fabricating false evidence. The learned Counsel, Shri Ayyapu Reddy, invited to the decision of Supreme Court reported in Chajoo Ram Vs. Radhey Shyam and Another, wherein particular reference has been made to the para No. 7, which is as follows :-

"The prosecution for perjury should be sanctioned by Court only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving if false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interest of justice of punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be 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."

It is obvious, from the events herein before, stated that there is no deliberate falsehood on the part of P.Ws. 9 and 11 and further, it is not expedient to prosecute them under S. 344 of the Cr.P.C., in the circumstances. Therefore, the orders of the Court below are set aside.

The Criminal Revision cases are accordingly allowed.

Revisions allowed.