Emperor vs Kameshwar Lal and Others

Rowland, J.—This is a reference made by Rai Saheb Bhubaneshwar Prasad Pande, Assistant Sessions Judge of Patna, against the unanimous verdict of not guilty given by the jury in respect of three accused persons who were charged with dishonestly and fraudulently using as genuine a forged document, that is to say a sale deed which purported to have been executed on 6th March 1932, in favour of the three accused by Mt. Budho Kurmini, widow of Bandhu Mahto, deceased. The document, which is Ex. 8, was presented for registration at 1 p.m. on 9th March 1932, and was registered.

It purports to convey to the transferees the entire holding of deceased''s husband comprising 6.28 acres. It is said to have been used by the three accused in the course of a criminal proceeding against them in the Court of Maulvi Syed Sayeed-ud-din Ahmed, Honorary Magistrate at Bihar, and the present prosecution was started on a complaint made by this Magistrate in accordance with the provisions of Sections 476 and 195, Criminal P.C. The correctness of the procedure taken for instituting the proceedings against these accused has not been assailed.

The case before Maulvi Syeed-ud-din Ahmed was a complaint case brought by Bhikhari Raut, father of Mt. Budho, who on 23rd April 1932, complained against the three present accused and four other persons that on the previous day, 22nd April 1932, they had come to the field of Mt. Budho and uprooted onions and plucked brinjals worth Rs. 1-8-0, that Bhikhari, complainant, opposed them and was assaulted. The sale deed was put to Mt. Budho in cross-examination and she denied having executed it.

The Magistrate acquitted the accused on 3rd October 1932, holding that the occurrence had not been proved. In his judgment he said: "As regards sale deed I leave this question open." An expert had expressed before him an opinion that the thumb-impressions of Mt. Budho taken in Court did not tally with those purporting to be hers taken in the registration office on the back of the sale deed and in the thumb-impression register. The accused had filed a petition to be given an opportunity to get thumb-impression compared by the Finger Print Bureau, but the case having been pending for rather a long time the Magistrate did not allow this. In the present proceedings against the accused the prosecution have caused the thumb-impressions to be compared by a Government Finger Print Expert attached to the Criminal Investigation Department in Patna, Rana Devanandan Singh, Sub-Inspector, and he has given a clear opinion with reasons that the thumb-impression on the sale deed does not tally with the thumb-impression either of the left hand or of the right hand of Mt. Budho.

The thumb-impression in the registration office in the thumb-impression register also tallies with that on the sale deed, but does not tally with the thumb-impressions of Mt. Budho. During these proceedings the accused asked and were allowed permission to have the thumb-impressions examined by Mr. Charles Hardless, an unofficial expert, but after he had examined the thumb-impressions the accused did not put him in the witness box. As a result we may take it as certain that the person whose thumb-impressions were given in the registration office on 9th March 1932 was not Mt. Budho. This indeed is conceded by the defence.

The defence changed their position after getting the thumb-impressions examined by Mr. Hardless. Mt. Budho was recalled for further cross-examination, and it was then suggested to her that she had negotiated with Ram Prasad Pande for sale of the land and that the sale deed was written and signed by Naunidh Mahto at her instance but that instead of going to admit execution before the Sub-Registrar she in collusion with Naunidh Mahto got herself falsely personified by some other woman.

The general defence was that to the best of the knowledge and belief of the accused the sale deed is genuine. Kameshwar Prasad and Ramji alias Ram Prasad Mahto also say that they are junior members of their families and though the sale deed was taken in their names the business was done by senior members of the families, namely, Baiju Lal, father of Kameshwar Prasad, and Bishun Mahto, father of Ramji, along, with Ram Prasad Pande. A law point is also taken that the filing of the document in the Court of the Honorary Magistrate did not amount to user within the meaning of the Penal Code. The learned Assistant Sessions Judge has not written a judgment under Sections 366 and 367, Criminal P.C., but has noted in the order sheet his disagreement with the verdict and opinion that it is necessary for the ends of justice to submit the record to the High Court. No reason is there given for this opinion.

The points for decision are not formulated, and the reasons for the decision are not stated. In the letter of reference the question whether the fraud if committed was the work of one accused or all three is not formulated or discussed, and for the facts, evidence and circumstances we are referred to the heads of charge. The The Assistant Sessions Judge recommends a conviction on the ground that the probabilities are in favour of the document having been a forgery and that the defence (who examined one of the attesting witnesses) had failed to prove that it was genuine. In his charge to the jury the Judge drew their attention to the fact that only at a late stage did the defence make the suggestion that Mt. Budho after executing the document had practised fraud by getting herself personated at the registration office by some other woman.

Before dealing with the main issues I shall first examine whether this fact should in the present instance support an inference adverse to the good faith of the accused. Ordinarily no doubt when a new defence is raised at a late stage that circumstance goes to some extent against the new defence raised. The question really is whether such a defence ought to have been raised at an earlier stage assuming the accused to have been innocent. The accused behaved both in the Court of the Honorary Magistrate and in the Sessions Court as if they were expecting that the result of examination of the thumb- impressions would be favourable to them. In the Magistrate''s Court the accused filed a petition on 22nd August 1932, to get the thumb-impressions compared by an official expert of the Finger Print Bureau. The complainant however was allowed to get the impressions compared by an unofficial expert, and the accused on 30th September 1932, again prayed the Court for facilities of taking photographs of the thumb-impressions and sale deed for comparison.

In the Sessions trial it was after the accused had had the thumb-impressions examined by their own expert that they changed their position. It is the defence explanation of their conduct that it was not until then that they fully realised that the thumb-impressions taken in the registration office were not thumb-impressions of Mt. Budho, whereas according to the prosecution case the accused must have known this from the very outset. In the circumstances the fact that a new defence was propounded at a late stage does not seriously go to discredit that defence, and it is for consideration on the merits, granting that a fraud was practised in the registration office, whether the accused are its perpetrators or its victims. This raises the main question in the case, namely, whether the sale deed was a forgery, that is to say, whether its execution, dated 6th March 1932, was by some person other than Mt. Budho. On this point the fact that some person other than Mt. Budho appeared at the registration office and gave thumb-impressions there throws no direct light.

The only direct evidence is on the prosecution side Mt. Budho (P.W.1) and on the defence side Sukhlal Mahto (D.W.2). Of these Mt. Budho is an interested witness being practically the complainant in the case. Sukhlal Mahto is not proved to be interested on the side of the accused and is believed by the Assistant Sessions Judge, though Bhikhari denied it, to be an agnate of the accused. In the absence of other evidence the learned Judge invited the jury to convict on probabilities, observing that:

in great majority of cases fraud or forgery is not capable of being established by positive and express proofs.

Ordinarily, in determining whether a document is forged or genuine, comparison of hand-writing is a valuable aid. In this case that aid is not available as Budho is illiterate and the document was executed by making an approximately circular mark. There was however a good deal of evidence available had the prosecution chosen to produce it. The sale-deed purports to have been executed by Mt. Budho by the pen of Naunidh Mahto of Noawan whose signature also appears on it as an attesting witness. Other signatures appearing on it are of Dasrath Charan of Rewar, Peari Mahto of Noawan, Sukhlal Mahto of Noawan, Nagbansi Lal of Noawan, Gopal Mahto of Noawan and Ram Charan Lal of Onda who was also scribe. The identification of the executant before the Sub-Registrar purports to have been made by Naunidh Mahto, and the thumb-impression of the identifier was taken in the registration office. It is not the prosecution case that any of these are fictitious names.

As for Naunidh Mahto, Mt. Budho admits that she has no dispute with him. The defence case is that he is bataidar under her and her father Bhikhari; and Bhikhari while he says that Naunidh is not their bataidar admits that Naunidh is his servant to whom he pays wages and is a kurmi by caste. The prosecution have not given any excuse whatever for not examining Naunidh Mahto. The prosecution have not even stated whether it is their case that the person who identified Mt. Budho before the Sub-Registrar was in fact Naunidh Mahto, Bhikhari''s labourer, or not. If the identifier was an impostor, the fact was capable of proof positive by comparison of thumb- impressions.

If the identifier was genuine, it is hard to see what explanation can be offered as to why he identified a false Mt. Budho unless it was in pursuance of a fraud to which he and his employers Bhikhari and Mt. Budho were parties. As to the other witnesses, all of whom are alive, the learned Judge ought to have cautioned the jury that it was prima facie the duty of the prosecution, and not of the accused, to call them and that if they are not called without sufficient reason being shown it was proper to draw an inference adverse to the prosecution.

It is not shown that any of the attesting witnesses are creatures of the accused. Three witnesses are of Bhikhari''s caste, one of them Naunidh being Bhikhari''s own servant, and one being Bandhu''s agnate.

The attention of the learned Assistant Sessions Judge is drawn to the leading case of Empress v. Dhunno Kazee (1882) 8 Cal 131 which is in point. The sale-deed contains recitals regarding the consideration which may be briefly summarised. Bandhu had borrowed Rs. 250 from Chamari Mahto in Chait 1335. The executant after Bandhu''s death had borrowed Rs. 148 from Punit Mahto in Asadh, 1335. (Punit Mahto is uncle of Ramji Mahto accused). Chamari''s debt was repaid in 1338 by borrowing Rupees 378-12-0 from Ram Prasad Pande and Punit''s debt was repaid in Fagun, 1338, by borrowing Rs. 210 from Ram Prasad Pande. Thus Rs. 695 of the consideration represents the old debt and Rs. 805 was said to have been taken in cash (total Rs. 1,500).

The prosecution could not reasonably be expected to call Punit Mahto as he is directly interested in the transaction and is uncle of one of the accused; there is some excuse and for not calling Ram Charan Lal the scribe, prima facie accused''s man, but no reason is given for not examining Chamari who if he was a creditor has been repaid and has no longer anything to gain. The Assistant Sessions Judge ought to have told the jury that they were being asked to convict on the single testimony of a highly interested witness in a case in which a great deal of other evidence was available to the prosecution had they chosen to produce it. That being the position, it is to be seen whether the evidence of Budho and her father Bhikhari is of a kind to command implicit confidence. Bhikhari has lied in denying that Sukhlal was an agnate of Bandhu.

He has also in all probability told a lie in saying that until Budho was cross-examined he had no knowledge of the existence of the forged sale-deed, whereas it is proved that a copy of the deed was taken on 11th April 1932, and that no other application for copy of the deed was made. Bhikhari has admitted that he took a copy of the deed and this can only have been the copy issued on 11th April 1932. As regards Budho, the Judge told the jury that she impressed him as being simple and candid, but an examination of her evidence does not bear this out.

It was suggested to her that money was required for marriage of her daughter or sister. She denies that she had any idea of marrying either of them and says that her sister Amirki was married two or three years ago; but Bhikhari has admitted that Budho''s sister Amirki was married at Khirsuna in the month of Baisakh last. Budho is therefore lying when she says that the marriage was two or three years ago. Budho was examined as a witness in the case of alleged theft of onions in which it was the defence that the case was falsely instituted at the instance of Gendoura Mahto, an enemy of the accused. She denied knowing any such parson and said that there was no such person in the village. In the Sessions trial she admits knowing Gendoura Mahto since a long time, and she denies having told the Magistrate in the onion case that there was no such person in the village. In the course of her cross-examination in the onion case reference was made also to one Nankoo Mahto. She said that she did not know any such person. In the Sessions trial she has admitted that she knows Nankoo Mahto, who is a resident of her village, and she has denied having told the Magistrate in the other case that she did not know any such person. If the witness and her father impressed the jury as persons with little regard for truth, it is not a matter for surprise.

I have not the least doubt that the verdict of the jury was correct. This result having been arrived at on a consideration of the main issue of fact, it is unnecessary to go into a discussion of the other points. The reference will be discharged, and the accused acquitted. Such a reference ought not to have been made. The Assistant Sessions Judge must try to bring an impartial and intelligent consideration to bear on the points for decision. A charge should aim at a fair and impartial presentation of the essentials of the case to the jury for their decision, rather than an attempt to lead them on speculative and conjectural grounds to a particular conclusion.