D.M. Sen, J.
1. This is a revision application under Section 439. Criminal P.C. against a conviction under Section 466, Indian Penal Code and sentence of three years' R.I. passed by the Additional Sessions Judge, Tripura, upholding the conviction and sentence passed by the learned Assistant Sessions Judge, Tripura.
2. The prosecution case, in brief is that the accused had forged a residential permit (Ext. P-2), purporting to-have been issued by the Registration Officer. Agartala, permitting one Miss. Rekha Rani Sana to remain in India until 13.8.60.
3. The prosecution case, mainly, rests on the evidence of P.W. 6. the hand writing expert, who deposed in his evidence that on a comparison of Exts P-5, P-6, P-7 and P-8(a), P-8(b) and P-8(c), which purport to be the standard hand-writings of the accused-petitioner with the impugned residential permit (Ext. P-2). he came to the conclusion that the authorship of Ext. P-2 is that of the same person who had written Exts. P-5, P-6, P-7, P-8(a). P-8 (b) and P-8(c).
4. On a careful perusal of the evidence it is. however, to be found that there is no evidence, whatsoever, connecting the authorship of Exts P-5 and P-6 to the accused-petitioner. Thus, any conclusion drawn on basis of a corn-prove Exts P-8 (a). P-8 (b) and P-8 (c) them to be the standard hand writings of the accused-petitioner, is without any value whatsoever.
5. We have now to see how far it has been proved by the prosecution that the remaining standard hand writings and signatures are in the authorship of the accused-petitioner. As regards Ext. P-7, the prosecution produced P.W. 14, Harendra Chandra Dey. who in his examination-in-chief stated that the entries in Ext. P-7 were in the handwriting of Satya Shome. the accused-petitioner. In course of his cross-examination however, he admitted that-Satya Shome has never written in my presence. On such evidence or rather lack of evidence, it cannot be held that Ext. P-7 has at all been identified to be in the hand-writing of the accused-Petitioner.
6. The prosecution sought to prove Exts P-8 (a), P-8 (b) and P-8 (c) through P.W. 9 and P.W. 11. P.W. 9, Satyendra Nath Dutta. states in his examination-in-chief that-the signature of Satya Shome is known to me as he was for some time at Agartalla Passport Section. The signatures as Satya Shome at page 5 of Acquitance Roll Ext. P-8 are of Satya Shome. These two are marked Exts P-8 (a) and P-8 (b). The signature of Satya Shome was known to me as he used to draw his pay in my presence.' In other words, the occasion for his acquaintance with Satya Shome's signature, was when the latter used to sign his name at the time of drawing his pay in presence of this witness at Agartala Passport Section. In course of his cross-examination, this witness, however, states-'there is no paper in this Court to show that Satya Shome ever received any pay from our office.' In view of the fact that there is no documentary evidence, whatsoever, that Satya Shome ever received any pay from Agartala Passport Section Office, the deposition of P.W. 9 that he Wad seen Satya Shome's signatures, when the latter drew his pay in his presence at Agartala, can hardly be relied upon.
7. The prosecution is, therefore, left with the evidence of only P.W. 11, Sachindra Chandra Das. who has identified the signature in Ext. P-8 (c) as that of the accused-petitioner, Satya Shome. In other words, I find that only document on basis of which a comparison could have safely been made by the hand writing expert, P.W. 6. was Ext. P-8 (c). The standard writings contained in Ext. P-8 (e) contain some letters as well as some figures. Incidentally it is not clear whether the figures '7,9,60' were included in Ext. P-8 (c)
8. P.W. 6, the hand writing expert, states in his deposition that on the material before him he is not in a position to say as to whether the accused-petitioner was the author of the signature which has been marked 'X'-1 on Ext P-2 and of the initial which has been marked 'X'-2. on Ext. P-2. He is. however, of the opinion that the body of the writings, which has been marked 'X' by him on Ext. P-2. has been written by the same person who wrote the several standard writings and signatures referred to above. Now, the only standard writing, as has been stated above, that can be safely held to be under the authorship of the accused is Ext. P-8 (c). On a careful scrutiny, it is found that Ext. P-8 (c) contained only two letters namely small 'a' and small 'h' and the figure '7'. which are also common in the portion marked 'X' on Ext. P-2. Thus, the entire basis for comparison by the hand writing expert and for his conclusion is these two letters and the solitary figure '7'.
9. It is well established that it is unsafe to base a judgment purely on expert opinion without substantial corroboration thereof, I may refer in this connection to Shashi Kumar v. Subodh Kumar : AIR1964SC529 where their Lordships have observed:
The expert's evidence as to hand writing is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.
10. My attention has also been drawn to Fakhruddin v. State of M.P. AIR 1967 SC 1326 : 1967 Cri LJ 1197. where the evidentiary value of the opinion of hand writing expert has been discussed. The judgment of the Supreme Court, cited above, has been referred to in this later decision and here also it has been stated by Hidayatullah J.
In either case the Court must satisfy itself by such means as are open that the opinion made be acted upon. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person.
11. In other words, a Court is required to satisfy itself whether the opinion of the hand writing expert can be safely acted upon. I also find that the decision in : AIR1964SC529 which was referred to was not dissented from in AIR 1967 SC 1326 : 1967 Cri LJ 1197. In other 'words, before acting on the evidence of a hand writing expert, a Court must satisfy itself on its own observation that it is safe to accept such opinion.
12. In the instant case, as would emerge from the discussions above, the only satisfactory basis on which the hand writing expert could have come to his conclusion was the similarity of the two letters, namely, small 'a' and small 'h' and of the figure '7' as appearing in Ext. P-8 (c) with the writings in the portion marked 'X' on Ext. P-2 which is the residential permit alleged to have been forged. I consider it would be very unsafe to support a conviction on such scanty material, that was available to the hand writing expert, to enable him to come to a correct conclusion. I may also refer to Para 12 of the judgment of the learned appellate court below, where the learned Judge observed:
A casual comparison of the writings in pencil in the temporary residential permit of Rekha Rani which was made by accused Satya Shome in volume No. 6/60 of temporary residential permits with the writings of Ext. P-2. regular residential permit, shows that the two writings were by the same hand.
I have, however, to observe that there is no evidence to connect the aforesaid writing in pencil in volume No. 6/60 of temporary residential permits to the hand writing of the accused-petitioner. Thus, the Court's attempt to compare the hand writing, as above can form no satisfactory basis for any safe conclusion.
13. The circumstantial evidence by which the prosecution seeks to connect the authorship of the writings in the residential permit with the accused-petitioner may also be examined. It is in evidence that P.W. 3. Mina Rani Bhowmik, stated that on the day when she, along with her sister. P.W. 2. Rekha Rani, entered India the accused-petitioner (whom she showed in the dock) told them to leave the Passport there, which would be handed over later on to her husband, P.W. 4. Rabi Haran Bhowmik, husband of P.W. 3, states that when he went to the check post, in the evening on the same day, he met Kamal Bhattacharjee. Incidentally this Kamal Bhatta-char.iee was also tried along with this accused-petitioner on a charge under Section 466 read with Section 109 I.P.C. but was acquitted. This witness states that it was Kamal who told him that Satya had kept the two passports that morning and it was Kamal who handed him over the Passport belonging to his wife. According to this witness, Kamal also stated that--'that he will bring the Residential permit from Agartala and will return my sister-in-law's passport afterwards.' Indeed, when this witness met Kamal 10 or 11 days later Kamal again reiterated that the residential permit of Rekha had not then been received back from Agartala. Finally, on 26th July, when this witness went to the check post, it was Kamal who took the initiative and asked Satya to make an enquiry whether the said residential permit had been received back from Agartala. Satya then brought a residential permit and handed it over to Kamal. Kamal then examined it and told this witness that it was all right and after that he handed it over to this witness. The evidence of P.W. 4 will therefore show that although both the passports might have been taken delivery of by Satya. accused-petitioner, in the morning when P. Ws. 2 and 3 first entered India through that check post, the said passports must, thereafter have remained in the custody of Kamal. It was Kamal who in the evening handed over one of these passports to P.W. 4. Again, it was Kamal who told P.W. 4 that he would bring the residential permit from Agartala and would return Rekha Rani's Passport afterwards. Incidentally, it is this residential permit that was the subject-matter of this case. After 10 or 12 days, again, it was Kamal who informed P.W. 4 that the residential permit had not yet been received. Finally, on 26th July. although Satya the accused-petitioner, brought out the residential permit, upon orders of Kamal, it was Kamal who inspected it and confirmed that it was correct and then handed it over to P.W. 4. All these will go to show that Satya's taking part, if any, in getting the residential permit from Agartala was at the most, a minor and subsidiary one in fact Satya seems to have played little or no part in procuring the permit from agartala. In any case, from the course of incidents, as narrated by P. Ws. 3 and 4, it does not appear that such circumstantial evidence, as would emerge from their evidence, can necessarily connect Satya with the procurement of the residential permit and would also be inconsistent with Satya's innocence or non-complicity in the matter of procurement thereof. As is well-settled, circumstantial evidence, before it can be accepted, must not only connect or implicate the accused with the offence charged; it must also be inconsistent with any, plea of innocence of such accused.
14. From the very minor and subsidiary part taken by Satya. the accused-petitioner, in the matter of handling the residential permit, as is disclosed from the prosecution evidence, it cannot be held that he should have been necessarily aware that the signature and the initial on the residential permit. Ext. P-2, were forged or even were by an unauthorised and incompetent person. Accordingly, the submission that as soon as the portion marked 'X' on Ext. P-2 has been identified to be in the hand of the accused-petitioner, it would follow that he must have had knowledge of the forged signature and forged initial cannot be accepted and acted upon.
15. There is another point of law of considerable importance, that has been urged before me by Mr. Deb Barma, the learned Counsel, for the accused-petitioner. Mr. Deb Barma submits that the prosecution must Drove, to bring home a charge under Section 466 I.P.C. that a false document had been 'made' by the accused. As regards what constitutes the 'making of a document,' he relies upon the observations of Garth. C.J. in petition of Riasat Ali fca'881) ILK 7 Cal 352) as follows:
I consider that the 'making' of a document or part of a document does not mean 'writing' or printing it. but signing or otherwise executing it, as in legal phrase we speak of 'making an indenture' or 'making a promissory note' by which is not meant the writing out of the form of the instrument but the sealing or signing it as a deed or note. The fact that the word 'makes' is used in the section in conjunction with the words 'signs, seals, or executes' or makes any mark 'denoting the execution, etc seems to me very clearly to denote that this is its true meaning what constitutes a false document, or part of document is not the writing of any number of words which in themselves are innocent, but the affixing of the seal or signature of some person to the document or part of a document knowing that the seal or signature is not his and that he gave no authority to affix it. In other words, the falsity consists in the document, or part of a document being signed or sealed with the name or seal of a person who did not in fact sign or seal it.
16. In Pramatha Nath v. The State : AIR1951Cal581 the above Calcutta decision has been followed and P.B. Mukharjee J., has observed:
The decision of the learned Garth C.J. was the decision of a Bench of this Court and with those observations of the learned Chief Justice, Prinsep J. sitting with him agreed and is binding on us. We do not feel that it is necessary for Us to go any further on this point and refer this question to a Full Bench for a fuller consideration of the criticism of Stokes. What needs emphasis however is that every forgery postulates a false document either in whole or in part however small. A piece of blank paper is not a document. Procurement of a piece of paper or of writing instrument or of a scribe cannot separately or by combination be regarded as making a false document. Until a false document is made either in whole or in part there cannot be in my opinion any forgery. Mere preparation for the commission of a possible crime of forgery without a false document in part or in whole cannot itself be either forgery or abatement of forgery.
17. The learned Advocate General has referred to Province of Bihar v. Surendra Prasad : AIR1951Pat86 . where Ramaswami J. observed that the authority of In re petition of Riasat Ali (1881) ILR 7 Cal. 352. cited above, was weak, as it had been dissented from in Emperor v. Krishtappa Khandappa (1925) 27 Bom. LR 599 : (1925) 26 Cri LJ 1014. In that case Ramaswami J. observed:
In my opinion, the word 'makes' in Section 464 does not mean anything other than 'makes,' that is to say creates or brings into existence. This opinion is consistent with illustration (c) to Section 464.
18. In the Patna Case, cited above, the facts were that the accused filled in the blank columns in a store issue order, knowing it to be signed not by the officer authorised to sign and issue it but by another person who forged that officer's signature and sold it to a third person. In other words, is that case the accused was aware that the document did contain a forged signature and, therefore, as soon as he filled in the blank column, 'made' a false document, in the sense that he created or brought into existence a false document. I. therefore, respectfully find that the decisions in : AIR1951Pat86 . is really not contrary to the decision in (1881) ILR 7 Cal. 552.
19. In any case, on a plain reading of Section 464 I.P.C. it would appear that in order to make a false document, a person must dishonestly or fraudulently make a document, with the intention of causing it to be believed that such document had been made by or by the authority of a person by whom-or by whose authority he knows that it was not made. Thus, mere filling in oil the body of a permit will not amount to making of a false document, unless it be also shown that when the accused-petitioner wrote out the body of the permit (portion marked 'X' on Ext. P-2). he did so dishonestly or fraudulently and that further he had the intention of causing it to be believed that such part of the permit was made by a person by whom or by whose authority it was not, to his knowledge, made. In the instant case, there is nothing to show that when the accused-petitioner wrote out the portion marked 'X' on Ext. P-2. he had any intention of causing it to be believed that the said portion, that is to say, 'X' on Ext. P-2, was made by a person by whom he knew it was not so made. I very respectfully state, in agreement with the observation of learned Garth C.J. in (1881) ILR 7 Cal 352, that I find on the facts of the case, it cannot beheld that the accused-petitioner had made a false document, within the meaning of Section 464 I.P.C.
20. There is a further aspect to this case, which also requires to be dealt with. The conviction was under Section 466 I.P.C. This section deals with an offence of forging a document, purporting to be made by a public servant in his official capacity. In other words, it is not forgery simpliciter but forgery of document which purports to be a document made by a public servant in his official capacity. Here, again, there is nothing in the evidence to show that the accused was aware that the signature of the Registration officer was a forged one, so that he may be held to have forged a document, purporting to have been made by a public servant in his official capacity.
21. I have examined the entire evidence carefully and I find that the hand writing expert's opinion based on the meagre materials for comparison, that is to say. Ext. P-8 (c), which alone was properly identified as a standard hand writing of the accused, can hardly be a safe basis for any conviction. In that view of the matter, execution of any part of the residential permit cannot be laid on to the doors of the accused-petitioner. Even for argument's sake if it be accepted that, he had written out the portion marked 'X' on the residential permit Ext. P-2. he cannot be held to have 'made' a false document, in view of the law as propounded in petition of Riasat Ali (1881) ILR 7 Cal. 352, in the absence of any knowledge on his part that the signature and initial on the residential permit here forged ones. The circumstantial evidence to fasten him with such guilty knowledge is too meagre, if not non-existent.
22. Taking all these facts and circumstances into consideration. I must hold that the conviction is untenable on facts well as on law and must be set aside, i.e. application is allowed. The accused will be released from his bail bond forthwith.