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2007 DIGILAW 137 (BOM)

RAMESH PARASRAM KAWANE v. State of Maharashtra

2007-02-02

K.J.ROHEE, S.R.DONGAONKAR

body2007
JUDGMENT S. R. DONGAONKAR, J. :- Appellant, who is police constable, was convicted by 2nd Ad-hoc Additional Sessions Judge, Yavatmal, in Sessions Trial No. 57/2001 by his judgment dated 5-9-2002 for the offence under section 302 of the Indian Penal Code and was sentenced to suffer life imprisonment and to pay fine of Rs. 3,000/-, in default to suffer S.I. for 3 months for committing murder of his wife Kalpana. The appellant seeks to challenge the said verdict of conviction and sentence in this appeal. 2. The prosecution case, shortly stated is thus - The appellant was residing in Police Line, Yavatmal, in a Police Quarter in Palawadi Camp in Quarter No.3, building No. 1 on ground floor, with his wife deceased Kalpana, one daughter and two sons. On i9-10-2000, in the mid-night at about 12 O'clock he came to village Warjai along with his 3 children and disclosed to his father, Parashram, that his wife had died and she was lying on the cot. He immediately left, leaving children there. On the following day morning, he again came to the house of Parashram at village Warjai and told him that he had murdered his wife. Thereafter, complainant Parashram came to the house of the appellant at Yavatmal with Bhimrao and Chindhu and noticed that the door of the house was closed by putting chain outside. He opened the door, entered into the house and saw the dead body of Kalpana lying on the cot. He further found that there was bandage on her forehead and there was bleeding from her mouth and nose. The blood had spread on the bed-sheet and on the bed. He also noticed some injuries on the face of the deceased. It is alleged that the appellant/accused had faced a trial for killing his first wife. He was, however, acquitted therein and thereafter his marriage with deceased Kalpana had taken place. The complainant then closed the door and went to the police station and lodged a report there. It was oral report, which was got reduced into writing by P.S.O. Thorat. (PW-17) 3. The offence against the appellant was registered, at the direction of P.S.O. Thorat, bearing Crime No. 563/2000 under section 302 of Indian Penal Code. Then Investigation Officer Thorat prepared printed F.I.R. and visited the spot. He prepared spot panchnama and inquest panchnama on the dead body in presence of panchas. (PW-17) 3. The offence against the appellant was registered, at the direction of P.S.O. Thorat, bearing Crime No. 563/2000 under section 302 of Indian Penal Code. Then Investigation Officer Thorat prepared printed F.I.R. and visited the spot. He prepared spot panchnama and inquest panchnama on the dead body in presence of panchas. He then sent the dead body for post-mortem examination. He had seized one screwdriver and wooden stick during investigation. The Medical Officer - Dr. Puranik (PW-2) conducted post-mortem on the dead body and submitted his report. According to him, the deceased had died due to head injury. During investigation, Investigation Officer Thorat recorded the statements of the witnesses, some of them being police constables residing in the vicinity of the residence of the appellant. He also recorded the statement of the mother of the deceased, her sister and other witnesses. He had also sent seized articles to Chemical Analyzer for examination and obtained reports. As it was transpired that appellant had committed the offence punishable under section 302 of Indian Penal Code, he submitted charge-sheet in the Court of Chief Judicial Magistrate, Yavatmal. 4. The said case was then committed to the Court of Sessions bearing Sessions Trial No. 57/2001. During the trial, charge against the appellant was framed for the offence punishable under section 302 of Indian Penal Code. It was explained to him, he pleaded not guilty. His defence as appears from his statement under section 313 of Criminal Procedure Code, is that he was not present at the time of incident. When he returned to home in the afternoon, he noticed bandage on the head of his wife. She disclosed that she had suffered injury due to fall. Later on, when in the evening he returned, he found dead body of the deceased in the house and golden ear-rings and other ornaments on her person were missing and therefore, he was afraid and disturbed, he left the house along with children, reached them to the father's house and informed him about the death of his wife. Thus, he claimed that somebody else had committed murder of the deceased, perhaps for committing theft of the articles and ornaments on the person of the deceased. His defence is thus of total denial. 5. In order to bring home the guilt of the accused, the prosecution has examined in all 17 witnesses. P. W -2 Dr. Thus, he claimed that somebody else had committed murder of the deceased, perhaps for committing theft of the articles and ornaments on the person of the deceased. His defence is thus of total denial. 5. In order to bring home the guilt of the accused, the prosecution has examined in all 17 witnesses. P. W -2 Dr. Puranik is examined to prove the postmortem examination of the deceased, P.M. report being at Exh. 17. There is no direct evidence available on the point of incident. The prosecution, therefore, examined P.W-l Parasram Baliram Pawar, father of the appellant, who has lodged report of incident as per Exh. 14. P.W-4. Police Constable - Prabhakar Masram is examined by the prosecution to show the assault on deceased Kalpana. P.W-5 Head Constable - Uttam Wankhede, P.W-9 Police Constable _ Pandurang Ghode have been examined by the prosecution for showing non cordial relations between the deceased and the appellant and also the extra judicial confession by the appellant to Police Constable - Pandurang Ghode. The other witnesses are P.W-6 - Shradha Jamkar, who is the wife of Police Constable, neighbour of the deceased, who has been examined about the quarrel between the appellant and the deceased as well as her weeping and hearing noise of beating to her, P.W-7 - Janabai Ghangare, mother of the deceased, who has been examined to show the ill-treatment caused by the appellant to her daughter Sunanda i.e. deceased Kalpana, P.W-8 - Narayan Pardhi, who is maternal uncle of deceased, has also been examined to show the disclosure by said Sunanda @ Kalpana regarding the ill-treatment caused by the appellant: 6. Besides this, prosecution has examined PW-14 Yogita, who is sister of the deceased to prove the disclosure of ill-treatment at the hands of the appellant to the deceased. The other witnesses relied upon by the prosecution for establishing its case are PW -3 - Bhimrao Umate on the point of Spot Panchnama (Exh. 20) and Inquest Panchnama (Exh. 21), who has however turned hostile; P.W-10 - Bharmal on the point of seizure memo of clothes of deceased being Exh.3I; P.W-11 - Vidya on Exh.21 Inquest Panchnama; P.W-15 Bhimrao Ladke on spot panchnama (Exh. 20) who has also turned hostile. The prosecution has also led evidence of Investigation Officer namely P.W-12 P.S.I. - Prag Pote on arrest panchnama of the appellant/accused (Exh. 20) who has also turned hostile. The prosecution has also led evidence of Investigation Officer namely P.W-12 P.S.I. - Prag Pote on arrest panchnama of the appellant/accused (Exh. 36); P.W-13 P.c. - Mohan Pardhan who has carried dead body for post-mortem; P.W-15 P.c. - Bhimrao Ladke who has carried articles to Chemical Analyzer; P.W-17 - P.S.I. Thorat who had received oral report of P.W-1 Parashram, prepared spot panchnama and inquest panchnama (Exh.20 and Exh. 21), seized partly burnt screw driver etc. as per Exh. 22, clothes of the deceased Exh. 31, prepared house search panchnama as per Exh. 33 and recorded statements of the prosecution witnesses and after due investigation, submitted charge-sheet. 7. The accused though claimed that at the time of incident he was not present in the house and somebody else had committed murder of the deceased, has not adduced any evidence in his defence. 8. Learned Trial Judge after considering the evidence on record, came to the conclusion that the accused has committed murder of deceased Kalpana and he. therefore, found appellant guilty of the offence punishable under section 302 of Indian Penal Code and therefore, he sentenced him, as stated above, by his judgment dated 5-9-2002. 9. Learned counsel for the appellant has submitted that the prosecution has failed to establish the guilt of the accused beyond reasonable doubts. According to him, there are several contradictions in the prosecution evidence. Prosecution has failed to prove that there was any motive for the appellant to commit the said offence. He has also contended that, the witness Parashram, who is father of the appellant. has not supported the prosecution case, so also the quarrel between the deceased Kalpana and the appellant on the date of incident has not been established. Further, learned counsel for the defence has contended that the injuries found on the person of the deceased can be caused due to fall and they were not endangering to life. He has also raised a contention that the witnesses examined by the prosecution, particularly on the point of spot panchnama, seizure memo etc., are the stock witnesses of the prosecution. He has also raised a contention that, as the presence of the appellant at the relevant time in the house is not established, he cannot be held guilty or atleast he is entitled for benefit of doubt. He has also raised a contention that, as the presence of the appellant at the relevant time in the house is not established, he cannot be held guilty or atleast he is entitled for benefit of doubt. In the alternative, he has also submitted that the offence under section 302 is not made out against the appellant, whereas if he is found to be guilty, he can be found guilty only for the offence under section 304 of Indian Penal Code. 10. As against this, learned Additional Public Prosecutor for the State, while supporting the order of the lower Court, for the reasons mentioned by the learned Trial Judge, has contended that the prosecution has established the guilt of the appellant by circumstantial evidence, and beyond reasonable doubt for the offence under section 302 of Indian Penal Code. She has also contended that the appellant had reason and motive to commit the murder of the deceased. In any case, according to her, as the circumstances are so clinching that they are pointing out the guilt of the appellant and therefore, the motive in the present case would be inconsequential. Therefore, she contended that the appeal should be dismissed. 11. Learned counsel for the parties have relied on certain authorities, which we would discuss at the appropriate place. 12. As already pointed out above, the defence of the appellant can be found in his statement under section 313 of Criminal Procedure Code in his words thus - "On 19-10-20001 go out of house for stitching my cloths and return to home at noon time at that time my wife and children were present in the house. 1 have seen, there was bandage on head of my wife. 1 have inquired how she sustained injury on her forehead. she disclosed me, while she was taking oil tin upper side. it was fall on her forehead, so she received injury. Thereafter again 1 go out of house for purchasing cloths of my children at 7 p.m. and return to home at 10 p.m. At that time 1 have seen my wife was found dead in the house. There was no ornament on her person to offened off and 1 mentally disturbed, thereafter 1 went to house of Pandurang along with my children and demanded him money and then 1 went to Warjai along with my children. There was no ornament on her person to offened off and 1 mentally disturbed, thereafter 1 went to house of Pandurang along with my children and demanded him money and then 1 went to Warjai along with my children. 1 have disclosed to my father that my wife is died and lying on cot in the house and somebody has killed her by removing her ornaments from her person. Thereafter 1 went to the house of my mother's sister at village Mankini. Thereafter on 12-11-20001 came to P.S. Darwa and surrender myself to police station at 8.30 p.m. Thereafter P.S.I. Yeotmal has arrested me on'13-11-2000. Police has involved me in false case and also file false charge sheet and adduced false evidence. " (English Translation) Thus, it is the case of the appellant that when he was out of the house for purchasing clothes for his children at about 7 p.m. and when he returned to home at about 10 p.m., he noticed his wife dead in the house and that there were no ornaments on her person, thereby suggesting a case that somebody else had entered into his house and while attempting to commit theft of the ornaments from her person, he had committed her murder. It clearly seems that the defence does not deny that deceased Kalpana had died of homicidal death. 13. Apart from this, P.W-2 Dr. Puranik, who had conducted autopsy on the dead body, has clearly opined that the injury mentioned in Column No. 19 of the Post Mortem notes is sufficient to cause the death of the injured. The injuries on scalp i.e. fracture of temporal bone and haemotoma on vital part of body are sufficient to cause death. He has confirmed the preparation of post-mortem note as per Exh. 17, saying that the contents thereof are correct. He has also deposed that the weapon i.e. wooden rod and screw driver can cause the injuries found on the person of the deceased. We need not go into the details thereof, because the death of the deceased being homicidal is not in dispute in view of the aforesaid defence of the appellant, and this inference is forfeited by the evidence of P. W-2 Dr. Puranik. 14. The question of the motive for the commission of the offence, has to be considered on the basis of the evidence laid by the prosecution. Puranik. 14. The question of the motive for the commission of the offence, has to be considered on the basis of the evidence laid by the prosecution. It is pertinent to note that P.W-7 Janabai, mother of the deceased, and P.W.-14 - Yogita, sister of the deceased, have deposed about the disclosure by the deceased of the ill-treatment caused by the appellant. Further, there is evidence of one Shraddha, who resides in the neighbourhood i.e. P.W-6, who is wife of one police constable, to the effect that there was quarrel between the appellant and his wife on the fateful day in the morning and later on she had noticed the house of the appellant closed from outside. On 20-10-2000 at about 2 p.m. she noticed police personnel removing the dead body of the wife of the appellant. All this evidence on record clearly, though does not point out the motive of the appellant positively to commit the murder of deceased Kalpana, points out the non-cordial relationship between the appellant and his wife deceased Kalpana. 15. This is a case of circumstantial evidence. Learned counsel for the appellant has relied on the observations of the Apex Court in 1994 (3) Crimes 181, Tarseem Kumar vs. Delhi Administration, wherein the Apex Court has observed that, "in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. " Further, learned counsel has relied on the observations of the Apex Court in (2001) 9 SCC 736 , Nesar Ahmed and another vs. State of Bihar, wherein in paras (4), (5) and (61 following are the observations: "4. The circumstances relied upon by the High Court to bring home the charge to the appellants, as can be culled out from the Judgment of the High Court, are .- (1). that Appellant 1 had borrowed Rs. The circumstances relied upon by the High Court to bring home the charge to the appellants, as can be culled out from the Judgment of the High Court, are .- (1). that Appellant 1 had borrowed Rs. 10,000 from his father-in-law (father of the deceased) to defend himself in a murder case and the mother of the deceased was pressurising him to return the money; (2) that the appellants (as well as the acquitted accused) were ill-treating the deceased and had beaten her on certain previous occasions; (3) that the dead body of the deceased was found from the house occupied by the appellants; (4) medical evidence; (5) that at about 10 a.m. both the appellants were seen going out of their house along with the one year old child of the deceased; (6) that Appellant 1 had disclosed to PW 6 and PW 9 at 4.00 p.m. that his wife (the deceased) had died at 11 a.m. by burning; (7) the unsubstantiated plea of alibi of the appellants; and (8) failure of Appellant 1 to report the incident to the police. 5. The prosecution has led evidence to show the existence of Circumstances 1, with a view to establish motive and Circumstance 2 to show the previous conduct of the appellants. There is no doubt that the prosecution has established Circumstance 3. The medical evidence (Circumstance 4) also shows that the cause of death was due to burn injuries. The only evidence led by the prosecution about the time of death is the evidence of PW 6 and PW 9 (Circumstance 6). 6. Before we allow to link up the above circumstances, it is absolutely essential to first consider whether the prosecution has led any unimpeachable evidence to show that the appellants were present in the house where the deceased died as a result of burn injuries at the crucial time. In our opinion, if it is found that the present of the appellants at the crucial time has not been established in the house, all Other circumstances would not complete the chain of circumstantial evidence to lead to any irresistible conclusion consistent only with the hypothesis of guilt of the appellants and inconsistent with their innocence ... In our opinion, if it is found that the present of the appellants at the crucial time has not been established in the house, all Other circumstances would not complete the chain of circumstantial evidence to lead to any irresistible conclusion consistent only with the hypothesis of guilt of the appellants and inconsistent with their innocence ... And in Para (9), it has been observed that, "all other circumstances taken together may point a finger of suspicion towards the appellants but suspicion, howsoever strong, cannot taken the place of proof" 16. Further, the learned counsel for the appellant has taken us through the observations of the Apex Court in AIR 1982 SC /157, Gambhir vs. State of Maharashtra, in para (9) which are thus - "9 The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests .'( 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly" pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence" And the decision of this Court in 2000 (1) Mh.L.J. 499 , Omprakash Krishnya Nayar vs. State of Maharashtra, wherein in para 10, it has been held that, "circumstantial evidence can only be made a basis for conviction of an accused if .' (i) the circumstances are firmly established against the accused; (ii) are wholly compatible with the inference of the guilt of accused; (iii) are wholly incompatible with his innocence; and (iv) are incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused." 17. Learned Additional Public Prosecutor has also relied on the judgment of the Apex Court in (2002) 7 SCC 157 , Mani Kumar Thapa vs. State of Sikkim, wherein it has been laid down that, "the accused failed to explain the circumstances established by the prosecution against him, it would form an additional link in the chain of circumstances., and in (2004) 2 SCC 442 , Sardar Khan vs. State of Karnataka, wherein in Para 22, following are the observations; "22. There is nothing on record to show that any outsider broke open the house and caused the murder of the deceased. The aforementioned circumstances, in our opinion, have rightly been accepted by the courts below as leading to proof of guilt of the appellant. In a similar situation, in Jawahar Lal vs. State of M.P. this Court upheld the judgment of conviction and sentence. " 18. In the present case, therefore, the question is whether the absence of reliable proof of motive is sufficient to discard the prosecution case. For that it is necessary to examine the circumstances which are established on record. 19. As pointed out above, the defence of the appellant/accused is that, when he came to the house in the night, he noticed the dead body of the deceased wife and the ornaments were missing on her person. Therefore, it is obvious that his specific defence is that somebody has entered into the house and for committing theft, her murder was caused. 20. In these circumstances, the natural conduct of the appellant would have been to go to the police station and report about the matter. This has not been done by him. Apart from this, there is no satisfactory explanation from his side as to why he had not approached to police station with the aforesaid case, for asking the police to make investigation about the incident. The submission that he was frightened, cannot be accepted, as he was police constable. There is evidence of P.W-9, PC - Pandurang, neighbour of the appellant, to the effect that on 20-102000 at about 11 p.m. appellant met him at his quarter and demanded Rs. 3000/-, he paid him Rs. 100/- and at that time appellant had disclosed that he is going to village. There is evidence of P.W-9, PC - Pandurang, neighbour of the appellant, to the effect that on 20-102000 at about 11 p.m. appellant met him at his quarter and demanded Rs. 3000/-, he paid him Rs. 100/- and at that time appellant had disclosed that he is going to village. He asked him why he was going in late hours in the night, appellant did not disclose anything to him and later on, he has gone to his father. Had he suspected killing of his wife by somebody else, he would have raised hue and cry or atleast told this witness. 21. According to the evidence of PW 1 Parashram, father of the appellant, appellant left his children there in the night and did not disclose anything to him at that time and later on in the next morning, he disclosed about the incident to him for which he had lodged report at Police Station after noticing the dead body of the deceased in the house of the appellant as per Exh. 14. Appellant was no where there. This is quite unnatural conduct of the appellant., more so because he happens to be the police constable and no bad terms with his neighbours are alleged. 22. The witness Parasram has turned hostile to the prosecution case to some extent. He contradicted a portions marked A, B, C and D of his report, which are to the effect that the appellant had disclosed to him that he had killed his wife. What is pertinent to note here is that this Parashram had stated before the police that prior to this incident, the appellant had killed his first wife and he has stated that he has killed his second wife. In cross-examination, this witness has stated that at the earlier time he had filed report with the police station about the said incident. It is true that after acquittal of the appellant in the previous sessions trial, after 7 months appellant had married with second wife Kalpana. Therefore, when there is no specific reason as to why the witness Parashram would lodge false report against the appellant in police station, the disclosure of the appellant about the incident to his father recorded in F.I.R. as alleged by the prosecution, needs to be held proved, which is clearly an incriminating circumstance against the appellant. 23. Therefore, when there is no specific reason as to why the witness Parashram would lodge false report against the appellant in police station, the disclosure of the appellant about the incident to his father recorded in F.I.R. as alleged by the prosecution, needs to be held proved, which is clearly an incriminating circumstance against the appellant. 23. The circumstances which are clearly established against the appellant are that there used to be quarrels between the deceased Kalpana and the appellant; on the date of incident also in the morning there was quarrel; although appellant was allegedly on leave, he was present in the house though he has contended that he was not present at the time of actual incident i.e. assault on the deceased. No evidence has been led by him of the shopkeeper from whom he had made purchases to exclude the possibility of his being on spot at the time of incident in defence. After noticing dead body of his wife in the house, he did not make any complaint to the police station, on the contrary, he went to his father and left children there and went away. Thereafter, admittedly after about 20 days he surrendered before the police, without giving explanation as to where he was and why he did not go to police station earlier. 24. All these circumstances in our opinion clearly point out the guilt of the accused. Here is the case where except contention that the ornaments on the person of the deceased were missing, nothing is on record to show that any outsider had entered into the house and caused murder of the deceased, or even about the possibility thereof. It was the evening time and not late hours of the night when this incident had occurred. The incident had occurred in the quarter of the appellant, where there are quarters of other police officials adjacent to the quarter of the appellant. Had there been any incident of deceased being assaulted by the thief, she would have definitely shouted and called for help and then the neighbourers would have gone to the place to save her. Apparently as the deadly assault was by the appellant/husband, the neighbourers did not notice. 25. Further, it is necessary to take into consideration the evidence of PW-5 H.C. - Uttam Wankhede. Apparently as the deadly assault was by the appellant/husband, the neighbourers did not notice. 25. Further, it is necessary to take into consideration the evidence of PW-5 H.C. - Uttam Wankhede. He has stated that, when he returned to his house, he saw that the door of the house of the accused was closed from the outside. No doubt, this witness turned hostile, the fact remains that he had made some incriminating statement before the Police, so also, PW-9, P.c. Pandurang Ghode. They in evidence denied to have knowledge about the incident i.e. actual commission of the offence by the appellant. The reasons are not far to seek. 26. Our attention has been brought by the learned counsel for the appellant towards the photograph in Article 'A' showing the packed condition of the oven in the house of the appellant to contend that the appellant had gone out to purchase that oven and cylinder from the Gas Agency at the relevant time. However, fact remains that the accused had failed to examine the said person i.e. shop keeper to show that when actually the offence was committed i.e. assault on the deceased Kalpana, the appellant was out, at his shop and therefore he could not have assaulted his wife at the relevant time. 27. As already stated above, here is the case of appellant, who is police official, that he was living in Police Line where the alleged incident took place. The time of the alleged incident and the place of the incident is such that it is not possible to infer that somebody might have entered into the house of the appellant and while committing theft, might have caused the death of the deceased. The conduct of the appellant after the incident is so unnatural that it clearly negatives inference of his not committing the said offence. All these circumstances, in our opinion, pass the test of resting the conviction on circumstantial evidence, laid down in the aforesaid cited cases. In our opinion, there is no material on record suggesting that the appellant would not have been the author of the attack on the deceased but somebody else would have attacked her. All these circumstances make the non-establishment of the motive to commit the offence even if it is assumed, inconsequential. Further in view of (2005) 10 see 196, Pohlu VS. All these circumstances make the non-establishment of the motive to commit the offence even if it is assumed, inconsequential. Further in view of (2005) 10 see 196, Pohlu VS. State of Haryana and (2005) 10 see 498, Ramashish Rai vs. Jagdish Singh - failure to prove motive is not fatal to the prosecution case, if there is other reliable evidence to prove the case, so also when prosecution case is strong and positive, motive becomes inconsequential. 28. Learned counsel for the appellant has also submitted that there was delay in recording the statement of the witnesses, particularly the neighbours of the deceased, the children of the appellant are not examined, some contradictions are there in the evidence. In the above view of the matter, it is difficult to hold that these aspects would cast doubt on prosecution case. It is not possible to believe that La. Thorat would record the statements of Police Constables falsely. Late disclosure by police witnesses to La. is also understandable as accused was police official. Particularly in view of nature of defence of appellant and inference flowing from it, makes prosecution case acceptable. This is not to draw any adverse inference against defence, but to say that in view of observations of Apex Court in (2004) 2 see 442, Sardarkhan's case, prosecution case has to be accepted. 29. In view of above, the judgment of conviction and sentence passed by the learned trial Judge does not seem to be illegal. No fault can be found with the same and therefore, the appeal needs to be dismissed. It is dismissed. 30. Before parting, it needs to be mentioned that in this case P.W.5. H.C. - Uttam and P.W.9 . P.C. - Pandurang have turned hostile to prosecution and have stated that La. Thorat has not recorded statements as per their say. They have not pointed out as to why he should record their statements falsely. There is reason to believe that they have given false evidence before the Court. Such incidents need to be taken seriously nowadays. Hence, we direct issuance of show cause notice to them as to why proceedings for the offence under section 193 of Indian Penal Code should not be initiated against them. Appeal dismissed.