Naresh Chandra Mallick vs State

Chanda, J.—These two appeals have been directed against the order of conviction and sentence passed by the learned Additional Sessions Judge, Nadia, in Sessions Trial No. VI of June 1969. Naresh, the Appellant in Cr. App. No. 618/69, has been convicted and sentenced to rigorous imprisonment for five years u/s 467, Indian Penal Code and to rigorous imprisonment for two years u/s 82(c) of the Indian Registration Act, 1908. The sentences are to run concurrently. Benialal, the Appellant in Cr. App. No. 621/69, has been sentenced to rigorous imprisonment for a term of five years under Sections 467/109, Indian Penal Code.

The Appellant Benialal Baidya is the husband of Ram Durga who is the mother''s sister of P.W. 1 Dwijendra. Dwijendra and Benialal migrated with the members of their family from Barisal now in Bangladesh. After migration Dwijendra lived at Sahishpur for sometime and then shifted to Jumdani in the district of Nadia. Benialal was living at Sahishpur in the same district. Dwijendra and Sabitri Rani, another wife of Benialal, were the owners in equal share of plot Nos. 832/918 appertaining to khatian No. 547 in mourn Sahishpur by purchase on the basis of a single deed. After purchase this land was let out in bhag to P.W. 2 Chittaranjan Karmakar. It is in evidence that Benialal was entrusted by Dwijendra to look after the land being situated in the village where Benialal was residing. It has transpired in evidence that Dwijendra Lal occasionally used to visit his native place in Barisal and he was there during March 1955 till January 1967. On his return in February 1967, Dwijendra (P.W. 1) came to Sahishpur and demanded bhag produce of that year from the bhagidar Chittaranjan. The evidence of P.W. 1 Dwijendra and P.W. 2 Chittaranjan reveal that Chittaranjan disclosed that the entire bhag produce was being realised by Benialal. The realisation of bhag produce was evidently on the basis of a sale deed purported to have been executed and registered by P.W. 1 Dwijendra in favour of Ram Durga Baidya, the first wife of Benialal. Not only that as we know from P.W. 9 Phani Bhusan Sardar, Manager, Nadia Co-operative Land Mortgage Bank, Krishnagar that both Durga Rani and Sabitri, two wives of Benialal, applied on September 12, 1966, for long term loan and the sale deed in favour of Durga Rani alleged to have been executed by Dwijendra was filed in support of her title. Not only that as the evidence of P.W. 9 Phani Bhusan Sarkar goes, Benialal identified both the ladies Ram Durga and Sabitri before him. There is no reason to disbelieve the evidence of P.W. 9. After a petition of complaint was filed in Court by P.W. 1, it was ordered to be treated as F.I.R. and on it Police investigation commenced. On April 24, 1968, P.W. 20 Bholanath Mandal, S.I. of Police who was attached to Chakdah P.S., seized the sale deed Ex. 3 dated June 9, 1965, purported to have been executed by P.W. 1 and deposited with the Land Mortgage Bank by the Appellant Benialal as per seizure list Ex. 5/1. P.W. 1 Dwijendra has said that this document was not executed by him nor was it presented for registration. He has sworn that the document does not bear his signature. This document was signed as Dwijendra Nath Ojha though P.W. 1 always writes his name as Dwijendra Lal Ojha. It was never suggested that P.W. 1 was not the owner of half share of he plot 831/918 or that the document was intended to be created by anybody else other than the real owner Dwijendra. It was suggested in cross-examination of P.W. 1 Dwijendra that his aunt Ram Durga had reconveyed the pro-party to which the instant case, related ''only yesterday''. P.W. 1 deposed before the learned Judge on September 30, 1969. It was also suggested to him that the deed in question was not a forged one and that he usually wrote his name as Dwijendra Nath Ojha and for the purpose of this case he has changed his name from Dwijendra Nath to Dwijendra Lal.

Police obtained specimen signature and thumb impressions of P.W. 1 Dwijendra and also the Appellant Naresh Chandra Mullick. The specimen signatures and thumb impressions of P.W. 1 and Naresh along with the impugned sale deed Ex. 3 were sent to the handwriting and fingure-print expert for examination. P.W. 14 Anukul Pattanayak, an examiner of questioned documents attached to C.I.D., West Bengal on comparison with the specimen signatures and thumb impressions sent to him with those appearing in the registered sale deed opined that the signatures appearing in the disputed document were not of the writer of the specimen signatures marked I, that is, of Dwijendra Lal Ojha. He has said that the divergences in writing characteristics are significant. Some of the divergences are proportion of the hands of ''da'', pen movement in executing the head stroke of ''dirgha ekar'', modification of ''bargia ja'', manner of linking ''dantya na'' with ''da'', position of the start and design of ''askar'' in the word ''Ojha''. He has, further, said that it is not possible to give definite opinion regarding common authorship W signatures X/1 to X/5 appearing in the impugned document and the specimen writings, marked 2, of the accused Appellant Naresh. P.W. 14 has not been cross-examined by the defence. Though the evidence of P.W. 14 does not disclose that the signatures X/1 to X/5 in the document Ex. 3 are in the hand of Naresh, there cannot be any manner of doubt that the document does not bear the signature of P.W. 1 Dwijendra and this lends assurance to the testimony of P.W. 1 that he did not execute and register the document. Apart from the comparison of signatures, the finger-print appearing in the document was compared with the specimen marks of Dwijendra and Naresh by P.W. 13 Sunil Bhattacharya, Finger Print Expert attached to C.I.D., West Bengal. From his evidence we know mat the specimen thumb impressions of the Appellant Naresh taken in the Court tallied with the thumb impression appearing in the document Ex. 3. The expert has pointed out several similarities in the two sets of thumb impressions. It appears that an attempt was made on behalf of Naresh to dislodge the findings of P.W. 13 with reference to the existence and absence of crease marks in the thumb impression in Ex. 3 and the specimen impressions of the Appellant Naresh. The learned Judge in repelling the contention has observed:

The said originals clearly show mat the crease mark as pointed out by the learned lawyer for the defence appearing in Ex. 6/1 and not appearing in Ex. 6, is identically located in the originals though not appearing clearly in the enlarged copies, marked Exs. 6 and 6/1. P.W. 13, the Finger Print Expert, has indicated as many as 9 points of identity of the ridge characteristics of both the finger-prints marked F, P/1 and C/1 and he is of definite opinion that both of them are from the same finger of the same person. I have personally examined the matching ridge characteristics and I accept the opinion of the Finger Print Expert as sound and correct and I hold that it is proved beyond any reasonable doubt by the prosecution that the L.T.I, of the accused Naresh Chandra Mullick appears at the back of the first page of the impugned document (Ex. 3) which is Ex. 1 in this case.

Mr. Bhattacharya appearing on behalf of the Appellant Naresh has not advanced any argument with reference to the crease marks. He has however, contended that though P.W. 20 seized the L.T.I. register of 1965 on September 4, 1968, from Chakdah Sub-Registry office, no explanation has been offered as to why that was not sent to the expert for comparison of thumb impressions appearing therein with those of P.W. 1 and the Appellant Naresh. We agree with the learned Judge that in view of the availability of the left thumb impression in the document itself for comparison, non-examination of the L.T.I., appearing in the register is not fatal to the prosecution case. The Finger Print Expert has given reasons for his opinion. It is after all opinion evidence. The expert evidence may be relied upon along with other items of evidence as to the disputed documents: Ram Chandra and Another Vs. State of Uttar Pradesh, . As has been observed in Haji Mohammad Ekramul Haq Vs. The State of West Bengal, its value depends largely on the cogency of the reasons behind it. If not supported by any reasons, the Court may reject it. In Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, . Ram Chandra and Another Vs. State of Uttar Pradesh, and Harendra v. State 35 C.W.N. 863 the Courts held that, in general, it cannot form the basis of conviction unless corroborated by other evidence. Henry on Finger Prints (4th ed., p. 16-19) has observed that the examination of finger-print has developed into a perfect science and an opinion of thumb impression expert is entitled to a greater respect than that of handwriting expert. This view has been accepted by this Court. In spite of the pronouncements regarding the development of the examination of finger-print into a perfect science, we proceed on the footing that a man should not ordinarily be convicted of the offence of forgery solely upon the evidence of a finger-print expert relating to similarity of thumb impression.

Apart from the similarity of thumb impression we have the confessional statement of the accused Appellant Naresh. The recording of confessional statement does not suffer from any infirmity. It will appear from the confessional statement recorded by the Appellant Naresh by the learned Magistrate P.W. 19 that he made statement to the effect that he went to Chakdah Sub-Registry Office with the other Appellant Benialal Baidya, according to Benialal''s direction, while Naresh was acting as private tutor at his house, when his attention was drawn to the confessional statement while examined u/s 342, of the Code of Criminal Procedure. Naresh did not say that it was the outcome of torture, inducement or threat emanating from the Police or any other person. He simply said ''I am innocent''. The learned Magistrate has said that the confession was voluntary and he has appended a certificate to that effect. Naresh was in jail custody and was not available to Police influence. He had more than 24 hours to make up his mind whether to make a confession or not. He is not a rustic but was acting as a private tutor. From the date of confession, no steps were taken by him to resile from his confession. There was ample time at his disposal to make an application to the Magistrate that the confession had been extorted from him by threat and inducement. There is no evidence that any Police officer visited him before the confession was recorded. The Magistrate who recorded the confession stated that he complied with all the requirements of law regarding the confession. The certificate made by him shows that the confession was voluntary and all necessary matters had been explained to the prisoner before he made the confession. The Police could not dream of the details found in the statement and make an effort to tutor Such a detailed confession in conjunction with the similarity of thumb impression. A voluntary and genuine confession is legal and sufficient proof of guilt. But as a matter of prudence and practice confession standing by itself and uncorroborated by other independent creadible testimony is not sufficient for conviction : Balbir Singh Vs. State of Punjab, , Hem Raj Vs. The State of Ajmer, and Ram Chandra v. State (Supra). The result is that the similarity of thumb impression appearing in the document Ex. 3 with the specimen impression of Naresh taken in the Court in conjunction with the confessional statement satisfactorily establishes the charges u/s 467 of the Indian Penal Code and Section 82(c) of the Registration Act.

Let us now turn to the case of the other Appellant Benialal who is alleged to have abetted the commission of offence u/s 467, Indian Penal Code, by Naresh. The confession of a co-accused is not legal evidence u/s 3 of the Evidence Act and it cannot be made the basis for a conviction. The Supreme Court laid down in Kashmira Singh Vs. State of Madhya Pradesh, :

The proper way to approach is, first, to marshall the evidence against the accused excluding the confession altogether and whether, if it is believed, a conviction could Safely be based on it without calling in aid the confession. But, cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

Naresh''s confessional statement coupled with the evidence of P.W. 15 Bhabani and the fact that the document Ex. 3 was produced before the Manager of the Bank by Benialal for securing loan on the property covered by it and identifying the two illiterate ladies there unmistakably implicate Benialal as having instigated Naresh in committing the crime of forgery. Naresh was a private tutor at his house. He migrated from East Pakistan (now Bangla Desh) in 1964. After migrating from Pakistan, Naresh was residing in the house of Benialal at Sahishpur. The evidence of P.W. 1 and P.W. 2 that Benialal purchased half the plot 832/918 in the benami of one of his wives, Sabitri, has not been challenged in cross-examination. Ram Durga, in whose name the impugned document Ex. 3 stands, is illiterate as will appear from the fact that she put her thumb impression in the statement u/s 342 of the Code of Criminal Procedure. We do not know whether or not Sabitri is literate. The disputed document Ex. 3 was created at a time when P.W. 1 was in East Pakistan. There is abundant ground for holding that Benialal intended to raise funds on the plot 832/918 from the Bank. Naresh had nothing to gain except that he was assured of a job in Calcutta to be secured by Benialal through his nephew (vide the confessional statement of Naresh). It is clear that Naresh, who was living in his house, was dominated by a powerful figure Benialal. The two wives were ready tools in the hands of Benialal. There cannot be any doubt that at the instance of Benialal the forged document and other title deeds were tendered to the Bank for raising loan. The application for loan was submitted on September 12, 1966, at a time when P.W. 1 was in East Pakistan and things were happening of which he had no inkling. The matter when looked at from a common sense point of view, is indeed very simple. Naresh was a pawn in the game and the whole affair was tainted with fraud in which the Appellant Benialal bore the leading role. It is not understood why Ram Durga would reconvey the property observed by Ex. 3 in favour of P.W. 1 during the pendency of the case as suggested to P.W. 1 except on the hypothesis that the deed was a forged one and unless Benialal at whose hand Ram Durga was a ready tool suggested this. We have seen from the evidence of P.W. 15, one of the attesting witnesses, that Ex. 3 was written by the scribe at the instance of Benialal. The position of P.W. 15 is not of an accomplice inasmuch as there is nothing on the record to suggest that he had any knowledge that the document was or would be executed by any person other than P.W. 1. From all these facts and circumstances, the learned Judge could come to the conclusion that Benialal abetted the commission of offence u/s 467, Indian Penal Code, The confessional statement of Naresh lends assurance to the conclusion thus arrived at.

The Order of conviction u/s 467, Indian Penal Code and Section 82 of the Indian Registration Act, 1908, as against Naresh Chandra Mallick and under Sections 467/109 of the Indian Penal Code against Benialal Baidya must be upheld.

As regards sentence, we think it should be reduced so far as Naresh Chandra Mallick is concerned having regard to his age. On October 7,1969, when he was examined u/s 342 he gave his age about 23 years. So, when the impugned document saw the light of the day, he was about 19 years. Naresh, a refugee, was unemployed and he was sheltered by Benialal at his house. In the circumstances he was placed, it was difficult for Naresh to shut his eyes to the temptation of a job promised to be secured by Benialal through his nephew. Set against that background we think severe punishment, so far as Naresh is concerned, is not called for We think that the ends of justice will be met if he is sentenced to rigorous imprisonment for one year only u/s 467 of the Indian Penal Code and for six months for the offence u/s 82(c) of the Indian Registration Act.

As regards Benialal, there is no extenuating circumstances calling for reduction of sentence. Taking advantage of the helpless condition of a young boy who had just attained majority, Benialal utilised him in his nefarious activities.

In view of what has been recorded above, the Cr. App. No. 618 of 1969 by Naresh Chandra Mallick is dismissed subject to the modification of sentence. The Appellant Naresh Chandra Mallick is sentenced to rigorous imprisonment for one year u/s 467 of the Indian Penal Code and to rigorous imprisonment for six months u/s 82(c) of the Indian Registration Act, 1908. Both the sentences will run concurrently.

The Cr. App No. 621 of 1969 preferred by Benialal Baidya is dismissed.

The Appellants do surrender to their bail bonds to serve out their sentence of imprisonment.

Sudhamay Basu J.

I agree.