Ganga Dibya and Another vs Emperor

Shearer, J.—These two appeals, which have been heard together are by a man, Akuli Das, and a woman, Ganga Dibya, who are brother and sistor and have been convicted in respect of the part taken by them in the forgery of a deed of sale. The woman has been convicted u/s 82(c), Registration Act, and u/s 467, Penal Code, and has been sentenced to undergo rigorous imprisonment for one month under each section, the sentences to run concurrently. The man has been convicted of abetting the commission of these offences by her, and the learned Sessions Judge, for very excellent reasons, dealt with him much more severely, sentencing him to undergo rigorous imprisonment for three years under each section, his sentences also to run concurrently. Akuli Das had another sister Bhaga, whose husband Bhikhari Das died a good many years ago. During her widowhood, or at least during the latter portion of it, Bhaga resided with her brother, Akuli Das. She died on or about 21st May 1941. On that date however a sale deed was registered at Kendrapara which purports to have been executed by her, and to convoy to her brother, Akuli Das, certain land, which apparently was the land of her husband, Bhikhari. Admittedly the thumb-impression on this sale deed is not the thumb-impression of Bhaga, but is the thumb-impression of the appellant, Ganga Dibya. (After considering the evidence his, Lordship maintained the conviction of Ganga Dibya and proceeded.) The defence set up by Akuli Das was that he took no part whatever in the transaction, and did not in fact go to Kendrapara at all that day. Now, the stamp-vendor, who sold the stamped paper on which the deed was engrossed, and both the deed-writers said that Akuli Das and another man, Raghu Padhan, who was also convicted and has not appealed, were with the executant of the sale deed. Two co-villagers of Akuli Das also gave evidence that they had seen him either leaving or returning to the village that day.

Mr. D. Sahu, for the appellant, suggested that the co-villagers of Akuli Das had a motive for giving false evidence, and that, although the stamp-vendor and two deed-writers had not, they may have been mistaken as to the identity of the man who came with the executant of this sale deed. I find it quite impossible to suppose that all three of them can possibly have made a mistake of this kind. It is quite clear that Ganga Dibya must have been brought to Kendrapara by some man or other, and the probabilities are obviously very great indeed that that man was her brother, Akuli Das, who was to benefit under the sale deed which she was to execute. There can, in my opinion, be no doubt whatever but that Akuli Das took part in the transaction and indeed took the leading part in it. Mr. D. Sahu, for the appellant, suggested that, even if Akuli Das was present during the transaction, there was no such legal evidence as would justify his conviction. The deed-writer, who was responsible for drawing up the sale deed, said, however, that Akuli Das supplied him with the particulars relating to the land which had to be entered in it. There is no reason to distrust what he said on this point, and, clearly, if Akuli Das gave these particulars, he aided and assisted in the com. misson of the forgery, as without them the deed-writer could not have drawn up the deed at all. Moreover, the circumstances are such as to show that there was a conspiracy, and that Akuli Das was a party to that conspiracy, and, as in execution of it an act was done, Akuli Das would, in any event, be liable even if there were not this evidence of the deed-writer as to what exactly he had said to him.

Mr. D. Sahu, for the appellants, points out that, for a good many years before her death, Bhaga had resided with her brother, Akuli Das, and suggests that, very possibly, when she was on her death-bed, she expressed a wish that Akuli should have her land. That may perhaps be so. It may even be that she told Akuli that, if she recovered, she would give him the land. But a circumstance of that kind cannot possibly prevent what was done by Akuli Das and Ganga Dibya as constituting anything but a forgery. Assuming that Bhaga would have been willing to execute a deed of gift in his favour if she had survived, that could not justify Akuli in fabricating, not a deed of gift, but a deed of sale containing a recital that he had advanced money to his sister for purposes of legal necessity and that, in order to redeem her debt to him, she was conveying land, which had belonged to her husband, to him. The learned advocate for the appellants referred to Anil Kumar and Others Vs. The State of Bihar and Others, in which a person who had signed a plaint on behalf of another person was acquitted of forgery. The facts there were, however, entirely dissimilar to those here, as the person whose signature he fabricated had authorized him to do such acts on her behalf. Clearly, in this particular case, the appellants did act fraudulently, intending to deceive the Sub-registrar and to deceive and also to injure the reversioners of Bhikhari, who, by the coming into existence of this sale deed, would or might be led to think that Bhaga had alienated her husband''s property for legal necessity. The conviction of the appellants u/s 467, Penal Code, must clearly be maintained.

Mr. D. Sahu, on the authority of the Full Bench decision of the Allahabad High Court in Emperor Vs. Mohd. Mehdi and Others, contended that the conviction u/s 82, Eegistration Act, was illegal, as no permission had been obtained to prosecute Ganga Dibya and Akuli Das on such a charge. This decision is, however, at variance with a decision of the Pull Bench of the Calcutta High Court in Gopinath v. Kuldip Singh (85) 11 Cal. 566 and with the decision of the Madras High Court in In re Piramu Nadathi AIR 1918 Mad. 439. It is not really necessary to consider the point in this particular case, but, for my own part, I can see no reason to doubt the correctness of the Calcutta and the Madras decisions which, it may be observed, have been followed also by a Judge of this Court sitting singly. The convictions u/s 82(b) and (c), Registration Act, must also be maintained.

The sentence imposed on Akuli Das is not, in my opinion, excessive, and I would dismiss his appeal. As regards Ganga Dibya, in view of her age and of the hardship to which, as a Brahmin widow, she will undoubtedly be put if she has to go to jail, I would reduce the sentence to the period of imprisonment she has already undergone and a fine of Rs. 50, or, in default, simple imprisonment for two weeks. Subject to these modifications of sentence, her appeal is also dismissed.

Meredith, J.

I agree.