Ramsewak Sahu and Others vs Emperor

James, J.—Harakhman Sahu of Maltinear Ranchi has a brother-in-law Ram Sewak, against whom he obtained an ex parte decree for Rs. 774, on 30th June 1920, in a suit which was based on a handnote. Ram Sewak attempted without success to get the ex parte decree set aside. He then complained to the police that the handnote on which the decree had been obtained was forged, again without success. Subsequently, with a view to avoid payment of the amount due under the decree, he applied to be adjudicated insolvent, wherein he was once more unsuccessful. Harakhman Sahu on 8th April 1925 applied for execution of his decree by bringing to sale Ram Sewak Sahu''s house at Thakurgaon. Notice under Order 21, Rule 66, was served on 29th April 1925, and the house was to be brought to sale on 15th July 1925.

On that date Ram Sewak Sahu made an objection under Order 21, Rule 2, accompanied by a panchnama and a receipt, wherein it was stated that Harakhman Sahu had agreed to submit the question of what should be accepted in payment of his dues to the arbitration of a panchayat consisting of Lal Surendra Nath Sahi Deo and Chamar Sahu, with five other men of Hatia village; and that in accordance with their decision, the decree was to be considered satisfied on receipt of Rs. 650, which had been paid to Harakhman Sahu on 29th April 1925. The receipt for this payment which purported to be signed by Harakhman Sahu, was attested by Lal Surendra Nath Sahi Deo and Chamar Sahu; while the agreement to refer the dispute to arbitration, which purported to have been signed by Harakhman Sahu on 28th April 1925, was written by Jitu Ram, a school teacher of Hatia. Harakhman Sahu repudiated the agreement and the receipt as forgeries.

An inquiry was held by the Munsif of Ranchi, as a result of which the accord and satisfaction was certified and the execution case was dismissed, while Harakhman Sahu was required to show cause why he should not be prosecuted for perjury in denying the genuineness of the agreement and the receipt. Harakhman Sahu appealed to the Judicial Commissioner of Chota Nagpur, who reversed the decision of the Munsif, restored the execution proceedings, and directed that Ram Sewak and his witnesses Jitu Ram, who had written the agreement, and Lal Surendra Nath Sahi Deo and Chamar Sahu who had attested the receipt should be prosecuted for abetment of forgery and for perjury in the proceedings before the Munsif.

The four persons named were in due course committed for trial to the Sessions Court, where they were tried by Babu Pramatha Nath Bhattacharji, Assistant Sessions Judge, with the aid of four assessors. All the assessors found the accused persons guilty of perjury and abetment of forgery; and the Assistant Sessions Judge agreeing with them convicted the accused and sentenced them each to three years rigorous imprisonment u/s 193 and to two years'' rigorous imprisonment u/s 465 read with Section 114, I.P.C. He further sentenced all the accused, except Jitu Ram, to five years'' rigorous imprisonment u/s 467 read with Section 114 and Ram Sewak Sahu to two years'' rigorous imprisonment u/s 271; all the sentences running concurrently. The appeal is from that order.

The finding in this case is based on evidence which may be summarized under three heads. There is first, the direct denial of Harakhman Sahu that he ever signed the agreement to submit the case to arbitration or the receipt, or that he ever entered into negotiations with Ram Sewak for adjustment of his debt. There is secondly, a lengthy account given by Harakhman Sahu of his actions on 27th, 28th and 29th April 1925, corroborated by the evidence of persons whom he met or with whom he did business during that period, and by a certain amount of documentary evidence, all given for the purpose of proving that he could not have been present at Ranchi to purchase the stamp on 27th April or at Hatia on the following day to execute the panchnama, or at Hatia again on the 29th to receive the money and sign the receipt. Thirdly, there is the evidence of the Government examiner of questioned documents, who made a comparison of Harakhman''s alleged signatures on the panchnama and the receipt with other admitted signatures, and found that the signatures on the panchnama and the receipt were not those of Harakhman Sahu.

Harakhman''s mere denial that he executed the panchnama or the receipt cannot be expected in itself to carry very much weight; and we may first consider how far he has succeeded in proving that he could not have been at Ranchi on the 27th, or at Hatia on the two following days. (After examining the evidence on this point the judgment proceeded.) There remains the evidence of the handwriting expert. The expert expressed in very positive terms his opinion that the signatures which purport to be those of Harakhman on the panchnama and the receipt were not written by the man who wrote the other admitted signatures of Harakhman; he claims to be acquainted with Kaithi-Hindi, but he admits that he cannot read or write it; and this fact must detract from the value which would otherwise be attached to his opinion as an expert.

Harakhman is evidently under serving of credit, and what we know of his conduct is not inconsistent with the story put forward by the accused, so that there is nothing left upon which the conviction can be based except the evidence of the expert; and, though that evidence might be of value as corroboration of direct evidence or evidence afforded by surrounding circumstances, it is hardly in itself sufficient to warrant the conviction of the appellants for abetment of forgery.

The manner in which the case was tried was not altogether satisfactory. The accused persons had not put in before the Committing Magistrate a list of the witnesses who were to be examined in the Sessions trial, but in the course of the trial they prayed that certain witnesses might be summoned for the defence.

The learned Assistant Sessions Judge rejected their prayer; and though he was legally justified in doing so by the provisions of Section 291, Criminal P.C., a more experienced Sessions Judge would, in view of the fact that adjournments were being taken in order to procure the attendance of witnesses for the prosecution, have done what was possible to secure the attendance of these witnesses before the conclusion of the trial. An accused person cannot ask as of right that newly named witnesses shall be summoned for his defence, but his prayer would not ordinarily be refused if there were time to secure the attendance of the witnesses before the conclusion of the trial.

The finding and sentences of the learned Assistant Sessions Judge are set aside and the appellants will be acquitted and discharged from their bail.

Allanson, J.

I agree.