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PETITIONER: SEKENDAR SHEIKH AND ANOTHER

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 08/02/1963

BENCH:

ACT: Criminal  Law-Forgery-Presenting document  for  registration under  assumed names-Former offence tried  with  jury--Trial Judge  taking  one  view of  evidence  and  Jury  another-If sufficient   ground  for   rejecting   verdict-Test-Evidence leading  to acquittal of one offence, if could be used  for, convicting  of  another-Indian Penal Code, 1860 (Act  45  of 1860). ss. 467, 109-Code of Criminal Procedure, 1898 (Act  5 of 1898), s. 307-Indian Registration Act, 1908 (XVI of 1908) s. 82 (c).

HEADNOTE: The  first appellant was tried for the offence of forging  a valuable  security  punishable under s. 467  of  the  Indian Penal  Code  and  for the  offence  of  falsely  personating another   and   presenting  a  document   for   registration punishable  under s. 82 (c) of the Indian Registration  Act, 1908.   The  second appellant was charged with  abetment  of these offences.  The offence under the Indian Penal Code was tried  with  a  jury  and  the  offence  under  the   Indian Registration  Act was tried without a jury.  The jury  by  a majority of 4 to 3 returned a verdict of guilty.  The  trial judge  rejected  the verdict on the ground  that  there  was "absolutely no’ reliable evidence" and referred the case  to the  High Court under s. 307 Criminal Procedure  Code.   The trial judge also acquitted the accused of the offence  under the  Registration Act.  No appeal was preferred against  the order  of acquittal.  The High Court came to the  conclusion that there was sufficient evidence to establish against  the appellants the offence under the Penal Code. It was contended on behalf of the appellants that the  trial court  having acquitted the appellants of the offence  under the  Indian Registration Act and no appeal having been  pre- ferred  against the order, it was not competent to the  High Court  to  rely  upon the evidence  tendered  to  prove  the offence under s. 82 of the Registration Act for the  purpose of convicting the appellants of the offence under the Indian Penal Code. Held,  that an item of evidence may corroborate charges  for more offences than one, and acquittal of the accused for one  853 such   offence  will  not  render  that  item  of   evidence inadmissible in assessing the criminality of the accused for another offence corroborated thereby. Held,  if  the jury takes one view of the evidence  and  the judge is of the opinion that they should have taken  another view,  the  view taken by the jury must prevail  unless  the evidence  is such that no reasonable body of men could  have reached  the conclusion arrived at by the jury.  In  such  a

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case  reference  under  s.  307  of  the  Code  of  Criminal Procedure is not justified. Ramanugrah Singh v. King Emperor, (1946) L. R. 73  I.A. 174, Malak Khan v. King Emperor, (1945) L. R. 72 I. A. 305.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 110 of 1961. Appeal  from the judgment and order dated January 25,  1961, of the Calcutta High Court in Reference No. 10 of 1960. D.   N. Mukherjee, for the appellants. K.   B.  Bagchi,  S.  N. Mukherjee for P. K.  Bose,  or  the respondent. 1963.   February 8. The judgment of the Court was  delivered by SHAH, J.-The first appellant-Sekander Sheikh-was charged  in a   trial  held  before  the  Additional   Sessions   judge, Murshidabad,  in the State of West Bengal, for the  offences of forging a valuable security punishable under s. 467 1. P. Code  and  of falsely personating another  in  such  assumed character   and  presenting  a  document  for   registration punishable under s. 82 (c) of Indian Registration Act.   The second appellant-Hasibuddin Sheikh was charged with abetment of these offences.  The trial for the offences of forging  a valuable security 854 and abetment thereof was held by the Sessions judge  sitting with a jury and for the offences under the Registration  Act without a jury.  The jury brought in a verdict of guilty  by a majority of 4 to 3 against the appellants for the offences of forging a valuable security and abetment thereof, but the judge did not accept the verdict and made a reference  under a.  307 of the Code of Criminal Procedure to the High  Court of  Calcutta,  because in his view there was  absolutely  no reliable evidence’ against the two appellants in respect  of the  offence of forging a valuable security and that it  was in  the interests of justice to refer the case to  the  High Court.   The Sessions judge acquitted the two appellants  of offences under the Indian Registration Act.  The High  Court declined  to  accept  the reference and  convicted  the  two appellants respectively of the offences punishable. under s. 467  and s. 467 read with s. 109 of the Indian  Penal  Code, and sentenced each appellant to suffer rigorous imprisonment for  two years.  With certificate of fitness granted by  the High  Court  under  Art. 134 (1) (c)  the  appellants  have, appealed to this Court.               The charges against the first appellant were-               (i)   that  on or about January 15,  1958,  he               had  in the town of Berhampore forged a  Heba-               nama in respect of certain property in  favour               of  one Ali Hossain purporting to execute  the               same in the name of one Kaimuddin of  Debkundu               and  that  the execution of the  document  was               made  with intent to cause the said  Kaimuddin               to part with his property and to commit  fraud               and               (ii)  that on the same day he had falsely per-               sonated  Kaimuddin Sheikh and in that  assumed               character had presented for               855               registration  the Heba-nama in the  Berhampore               sub-registry   and  had  affixed   his   thumb               impressions claiming to be  Kaimuddin Sheikh.

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The  second  appellant was charged with abetting  the  first appellant   in  the  commission  of  the  two  offences   by identifying the first appellant as Kaimuddin Sheikh.  At the trial  the  prosecution examined one Swarana Kumar  Dey  who testified  that he had engrossed the Heba-nama in favour  of Ali  Hossain  which  was executed  by  the  first  appellant purporting  to  do so as Kaimuddin Sheikh,  that  the  first appellant  had  impressed  his thumb mark  on  the  document before  him in token of execution of the Heba-nama that  the first  appellant  had represented himself  to  be  Kaimuddin Sheikh,   and  that  the  executant  of  the  document   was identified  before  him as Kaimuddin Sheikh  by  the  second appellant  Hasibuddin  Sheikh.  Kaimuadin  Sheikh  testified that  he  had not executed any Heba-nama in  favour  of  Ali Hossain and that he had not impressed his thumb-mark on  any document in the presence of Swarana Kumar Dey.  A  certified copy of the Heba-nama was shown to the witness and he denied having  executed and presented the original  thereof  before the  Sub-Registrar.   Evidence was also  tendered  that  the thumb  impressions of the two appellants were taken  by  the investigating  officer  in the presence  of  Magistrate  and those  specimen   thumb impressions were compared  with  the thump  impressions in the register at the  sub-registry   at Berhampore  by  a a hand-writing expert and that  the  thumb impressions  of the first appellant tallied with  the  thumb impressions  in the said registrar  and not with  the  thumb impressions  of  Kaimuddin Sheikh. In the view of  the  High Court  sufficient to establish against the two  offences  of forging a valuable  security and abetment thereof. 856 It  is now well settled that in a reference under s. 307  of the Code of Criminal Procedure if the evidence is such  that it  can properly support a verdict of guilty or not  guilty, according  to  the view taken of the evidence by  the  trial Court, and if the jury take one view of the evidence and the judge  is  of the opinion that they should  have  taken  the other,  the view of the jury must prevail, for they are  the judges of fact.  In such a case a reference under s. 307  of the Code of Criminal Procedure is not justified.  But if the High  Court holds that upon the evidence no reasonable  body of  men could have reached the conclusion arrived at by  the jury, the reference will be justified and the verdict of the jury  will be disregarded. Ramanugrah Singh v. King  Emperor (1).  It appears that the Court of Session was not impressed by  the  testimony of Swarana Kumar Dey but it was  for  the jury  to  assess the value of the evidence.   The  jury  had apparently accepted the evidence of Swarana Kumar Dey and of Kaimuddin  Sheikh,  and  it  could  not  be  said  that   no reasonable body of men could have accepted that evidence. At the trial, evidence about the specimen thumb  impressions of   the   appellants  taken  during  the  course   of   the investigation were relied upon in support of the prosecution case.  This court has held that there is no infringement  of Art. 20(3) of the Constitution merely by tendering  evidence of   this  character,  in  support  of  the  case  for   the prosecution  against  a person accused of  an  offence:  The State of Bombay v. Kathi Kalu Oghad (2).  The Court in  that case set out certain propositions of which the following are material-               "(ii)  the  words "to be a  witness’  in  Art.               20(3)  do  not  include the  giving  of  thumb               impression  or  impression of  Palm,  foot  or               fingers or specimen writing or exposing a part               of   the  body  by  an  accused   person   for               identification;

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             (1) (1946) L.R. 73 I.A. 174.                          (2) [1962] 3 S C.R. 10.                857               (iii) ’self-incrimination’ means conveying in-               formation based upon the personal knowledge of               the  giver  and  does  not  include  the  mere               mechanical  process of producing documents  in               court  which do not contain any  statement  of               the accused based on his personal knowledge;               (iv)in order to come within the  prohibition               of Art. 20(3) the testimony must be of such  a               character  that by itself it should  have  the               tendency to incriminate the accused-" In view of this decision, counsel for the appellants  fairly conceded  that he could not challenge the  admissibility  of evidence relating to the taking of thumb impressions of  the first  appellant and its use for comparison with  the  thumb impressions  in the sub-registry at Berhampore, made at  the time of presentation of the document for registration. It  was urged, however, that when the Trial judge  acquitted the  two appellants of the offences punishable under  s.  82 (c) and 82 (d) of the Indian Registration Act-the offence of false personation and in such assumed character presenting a document, and abetment thereof and that so long as the order of acquittal was not set aside in an appeal duly  presented, the  High Court in a reference under s. 307 of the  Code  of Criminal   Procedure  was  incompetent,  relying  upon   the evidence  which was not regarded as reliable in  respect  of the  offences  under the Registration Act,  to  convict  the appellants  of the offences of forging a  valuable  security and abetment thereof.  It was submitted that as the offences under s. 467 I.P. Code and s. 82 (c) Indian Registration Act formed  part  of the same transaction and the case  for  the prosecution for the former offence was substantially founded on  the  same evidence which was not accepted by  the  trial Court when acquitting the appellants of the 858 latter  offence,  the  High Court could not  act  upon  .hat evidence to record an order of conviction on the charge  for the  offence of forging a valuable security.  Se are  unable to  accept this argument.  Forging a valuable  security  and presentation of that valuable security for registration  are two  distinct  offences.  In support of the  case  that  the appellants  were guilty of forging a valuable  security  the material evidence is that relating to the making dishonestly or  fraudulently  of  a false document of the  nature  of  a valuable   security.    That  evidence  consisted   of   the instructions  given at the time of writing of the  document, the  character  of  the document,  its  execution,  and  the intention  of the accused in fabricating the document.   The offence  of  false personation for presenting  any  document consisted  in  the  presentation of a  document  before  the registering  authority by a person claiming to be  some  one else.  An item of evidence may corroborate charges for  more offences  than  one : but acquittal of the accused  for  one such  offences  will  not  render  that  item  of   evidence inadmissible in assessing the criminalityof the  accused for another offence corroborated   thereby.  The question in such a case is not oneof  admissibility but of weight  to be  given  to that evidence.  The decision of  the  Judicial Committee of the Privy Council in Malak Khan v. King Emperor (1),  negatives the submission of the appellants.  In  Malak Khan’s  case  the accused was charged before  the  Court  of Session  for  offences  of  murder  and  robbery.   He   was acquitted  by the Trial judge of the offence of robbery  and

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convicted  of  the  offence of murder.  The  High  Court  in appeal  against  the  order of conviction  relied  upon  the evidence  which was material to both the charges of  robbery and murder, as corroborative of the guilt of the accused for the  offence  of  murder.   It  was  held  by  the  judicial Committee  that  the High Court could  properly  accept  the evidence  as corroborative of the guilt of the  accused  for the  offence  of murder, even though that evidence  was  not accepted by the trial (1)  (1945) L.R. 72 I.A. 305.  859 Court on the charge of robbery.  In considering the argument that the evidence could not be relied upon in support of the charge of murder, the judicial Committee observed :               "The   Sessions  judge,  it  was   said,   had               acquitted  the appellant of robbery;  he  was,               therefore,  not  guilty of  that  offence;  no               appeal  had been taken against that  acquittal               and  therefore no Court was entitled to  ’take               into  consideration the allegation upon  which               the accusation of robbery was founded even  as               corroborative  "evidence"  in  another   case.               Their Lordships cannot accept this contention.               The  learned  Sessions judge did not  in  fact               find  the accusation baseless ; he only  found               the  crime  not proven.  But even  if  he  had               disbelieved the whole story of the recovery of               the  stolen property from the  appellant,  his               finding would not prevent the High Court  from               weighing  its value and if they  accepted  its               substantial   truth   from  taking   it   into               consideration  in determining whether  another               crime had been committed or no." The High Court was therefore not debarred from founding  the order of conviction for the offences under s. 467 I.P.  Code and abetment thereof, of the appellants upon evidence, which corroborated  the  story of the prosecution  in  support  of those charges merely because that evidence was not  accepted by the Sessions Court in considering the charge against them of false personation for procuring registration of the Heba- nama. The appeal therefore fails and is dismissed. Appeal dismissed. 860