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Emperor Vs. Chhotalal Babar (No. 2.) - Court Judgment

LegalCrystal Citation
Decided On
Case Number Criminal Appeal No. 106 of 1912
Reported in(1912)14BOMLR367
RespondentChhotalal Babar (No. 2.)
DispositionAppeal dismissed
penal code (act xlv of 1860), sections 461, 109-forgery-abetment of forgery-conspiracy-acquittal of fellow-conspirator-conviction of the conspirator.;the accused was tried along with his partner a, in that they conspired to get up a khata, and in furtherance of that conspiracy a went to 8, a professional forger, and got it prepared, a was acquitted; but the accused was convicted and sentenced under sections 46? and io9 of the indian penal code, 1860. the accused appealed contending that as the case against his fellow-conspirator was not successful, the charge of conspiracy broke down and he was entitled to acquittal:-;that the charge against the accused was that he abetted s's offence of forging a khuta, and if that abetment was proved against the aocused, he must be convicted of that..........the charge only meant that the forgery was made through the intervening medium of a man whom the accused somnath believed to be ambalal jethalal. if accordingly the intervening medium happens to be not ambalal jethalal, but some other unknown person, i. e., if chhotalal babar sent some other man, or himself went to umreth for the purpose, then the case against this accused is, in my humble opinion, not materially or substantially altered.10. the accused appealed to the high court.batchelor, j.11. the appellant in this case, chhotalal babar, has been convicted under sections 467 and 109 of the indian pencil code of the abetment of the forgery of a valuable security, namely, a khata. the allegation is that employing the services of a professional forger, named somnath, with whom/he.....

N.G. Chandavarkar, J.

1. Dealing with the appeal of Ambalal Jethalal, who was accused No. 2 in the Sessions Trial, we cannot agree with the the learned Sessions Judge in the conclusion at which he has arrived, namely, that he is guilty, and the reasons that he has given for that conclusion.

2. The evidence as against the appellant rests solely upon the evidence of Somnath, the pardoned approver. His being the for evidence of an accomplice there must be corroboration in the material particulars by means of independent testimony before the conviction can be sustained. Such corroboration there is absolutely none in the present case. The learned Sessions Judge seems to have thought that there was corroboration afforded by the position, connection and general conduct of accused No. 2, the appellant before us. The learned Judge is right so far as a matter of law, that the degree of 'amount of corroboration required depends upon the facts of each case. But when he goes on to observe that in a case like the present f where the utmost secrecy must have been observed, the position, connection and the general conduct of accused No. 2 ' in doing Chhotalal's business afforded a sufficient corroboration, I think that view of the law cannot be accepted.. If there was any secrecy then it only means that there is no corroboration by means of independent evidence;' that we are Infect to conjecture so far as any evidence to corroborate Somnath is concerned, and that the prosecution has not been able to bring forward the evidence of circumstances by means of independent witnesses to support the story of Somnath. It is difficult, it seems to me, to understand what the learned Sessions Judge had definitely in mind when he thought that (the very fact that the appellant worked in secrecy afforded (independent corroboration. When we examine the evidence with reference to what the learned Sessions Judge calls the position, connection, and the general conduct, of accused No. 2, I find that there again there is nothing which fulfils the requirements of law so far as corroboration is concerned. All that is alleged and proved is that the appellant was a partner of Chhotalal, and that he used to visit Umreth. It is only upon that point that we have anything like independent testimony. But on the question whether the appellant visited Umreth for the purpose of getting the document, charged as forgery, there is no witness whatever beyond Somnath. The learned Government pleader has been compelled to rest the case for the Crown upon circumstances elicited in the evidence of Somnath himself for the purpose of finding corroboration. But the learned Sessions Judge's judgment itself shows that practically he was resting his conclusions upon the testimony of Somnath while supposing that the circumstances elicited in Somnath's evidence afforded material corroboration. What the law requires is corroboration in respect of material particulars by means of independent testimony. In the present case Somnath stands self-condemned. He is a notorious forger, and, being an accomplice, it would be dangerous to rest the conviction upon his testimony exclusively.

3. For these reasons, I am of opinion, that the conviction and sentence must be reversed and the accused directed to be set at liberty.

Batchelor, J.

4. I agree. It seems to me that in this case it is incumbent on the prosecution to prove two prosecutions. First, that a forgery was brought about in the manner alleged on behalf of the Crown; and, secondly, that the person who instigated or brought about that forgery was this particular individual, the present appellant.

5. As to the first proposition I am quite ready to concede that it has been abundantly established. But that is no concern of the present appellant until some connection has been shown between him and the offence, It is here that, in my opinion this prosecution fails. For, when the record is examined, i* appears that the only evidence to connect the present appellant with the abetment of this forgery is the approver Somnath.

6. And it is clear, both upon authority and upon the merest ground of common sense, that a man like Somnath has no claim whatever to the confidence of the Court unless his . evidence can be materially corroborated aliunde. It was said that there was evidence to show that the present appellant was a partner of Chhotalal's for whose benefit this forgery must be assumed to have been committed, and that the appellant was frequently in Umreth in the prosecution of his lawful business. I quite concede these two circumstances, but they appear to me to be far too remote and inconclusive to serve the turn of prosecution in this case. Upon the ground that the only real evidence against the present appellant is the statement of the approver Somnath, I agree that the conviction ought to be set aside.

7. As regards Chhotalal Babar, the learned Sessions Judge felt a doubt if he had jurisdiction to try him, because he was a foreign subject and resided at a place outside British India, and his offence, whatever it was, was completed outside those limits. The case was, therefore, referred to the High Court. The High Court heard the reference and held that the Sessions Judge had jurisdiction to try Chhotalal Babar. (Vide 14 Bom. L. R. 147.)

8. When the case against Chhotalal Babar was, therefore, taken up by the Sessions Judge, it was contended on his behalf that ' he was entitled to acquittal under the principle of law that on a charge of conspiracy between any two persons, when one of the persons charged was acquitted, the other person must also be acquitted.

9. This contention was not accepted by the learned Judge. He convicted Chhotalal of the offence under Sections 467 and 109 of the Indian Penal Code, and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs. 10.00. The following were his reasons:-

It is now contended on behalf of Chhotalal Babar that the acquittal of Ambalal is fatal to the prosecution-case against Chhotalal, inasmuch as the charge against him is that of abetment by conspiracy, and the particular conspiracy has been clearly specified in the charge framed at the trial by this Court. The charge Ex. 1 says, 'You, on..., at Cam bay, conspired with accused No. z Ambalal Jethalal, your co-partner, and after concerting your design, sent him to Umreth..., with your book to get... (Ex. 9 o)... forged at Umreth, and thus abetted the commission of the said offence of forgery.' It is therefore contended that owing to Ambalal's acquittal, the particular conspiracy with him falls to the ground; and, in support of this contention, my attention is invited to the ruling in Plummer's case, [1902] 2 K. B. 339. On reading the first paragraph of the headuote, I was at first inclined to accept this contention; but, on carefully going through the whole case, I find that that case is quite distinguishable. It was a case of mere conspiracy which is a substantive offence in England. At p. 344 Wright J. observes with regard to the case of Reg v. Ahearne (6 Cox 6) that ' it is difficult to see how this question really arose at all, since the indictment was not for a mere conspiracy to murder but for actual murder, though laid with an averment of conspiracy.' Moreover it appears to me dangerous to rely upon English precedents based upon English Acts, where the language and object may be quite different. I accordingly think that I must confine my attention to the provisions of the Penal and Criminal Procedure Codes of British India. Now under the Indian Penal Code, conspiracy is not a substantive offence, but is a species of abetment. In order to constitute the offence of abetment by conspiracy, there must be & combining together of two or more persons in the conspiracy, and an act or illegal omission must take place in pursuance of that conspiracy and in order to the doing of that thing. Vide second clause to Section 107 of the Indian Penal Code. And in the present case the substance of the charge was getting the document Ex. 90 forged at the hands of Bomnath at Umreth. Of this case against him, that he had to meet, the accused was thoroughly well aware. The charge only meant that the forgery was made through the intervening medium of a man whom the accused Somnath believed to be Ambalal Jethalal. If accordingly the intervening medium happens to be not Ambalal Jethalal, but some other unknown person, i. e., if Chhotalal Babar sent some other man, or himself went to Umreth for the purpose, then the case against this accused is, in my humble opinion, not materially or substantially altered.

10. The accused appealed to the High Court.

Batchelor, J.

11. The appellant in this case, Chhotalal Babar, has been convicted under Sections 467 and 109 of the Indian Pencil Code of the abetment of the forgery of a valuable security, namely, a Khata. The allegation is that employing the services of a professional forger, named Somnath, with whom/he entered into communication through his partner and agent Ambalal, the appellant procured the preparation of a false Khata intended to show that the daughter of a certain other man, named Ambalal, had been promised to the appellant in marriage.

12. On a separate appeal, which was preferred by the Appellant's partner Ambalal, we were constrained to reverse Ambalal's conviction, on the ground that it had. been recorded solely on the uncorroborated evidence of the accomplice Somnath.

13. Mr. Shah for the appellant here has contended, in the first place, that his client is entitled to an acquittal inasmuch as the charge against him was one of conspiring with Ambalal, and Ambalal has, by the order of this Court, been acquitted; it follows from that, says the learned Pleader, that no conviction can be sustained against Ambalal's fellow-conspirator, the present appellant. It appears to me that whatever force that argument might have in England, where conspiracy is a substantive offence, it has no force in India, with respect to the particular charge upon which the appellant was indicted.

14. The charge against him was that he abetted Somnath's offence of forging a Khata, and, if that abetment is proved against the appellant, he must be convicted of that charge, even although the prosecution were not successful in establishing the particular means or instrument selected by the appellant for the abetment of Somnath's offence.

15. Next it was contended by Mr. Shah that, inasmuch as this Court has reversed the conviction of Ambalal, the consideration of this appeal must proceed upon the footing of the total exclusion of the possibility that Ambalal may have been the agent deputed by the appellant to instigate Somnath to commit the forgery. It appears to me, however, that this argument overstates the matter. Ambalal was acquitted, as our judgment shows, in pursuance of the rule of practice whereby the Courts hold it unsafe to record a conviction on the uncorroborated evidence of an accomplice. Ambalal was undoubtedly entitled in law to that acquittal. But Ambalal is no longer an accused person before us, and the question of his conviction does not arise. The accused person before us is the present appellant, and, it seems to me, that we must consider all the evidence against him as it stands upon the record, and that in considering that evidence the Court is not bound to say that the prosecution of Chhotalal must fail by reason of the impossibility of the view that Ambalal was the deputed agent. The question whether Ambalal was or was not the deputed agent will invite slightly different answers, accordingly as it is considered with reference to the conviction of Ambalal himself, or as a detail in the whole body of evidence tending to the conviction of another person.

16. When that whole body of evidence is in this case considered, it appears to me, that we need have no objection in saying that the prosecution is by no means weakened owing to that part of its case which asserts the agency of Ambalal.

17. In regard to the merits of the case, I am of opinion that there can be no doubt of the appellant's guilt. Mr. Shah has not felt himself able to contest the forged character of this impugned document. We have it, therefore, that this Khata was forged by Somnath, whose business in life 1 was forgery. Somnath, therefore, had no private interest to serve in committing this forgery beyond earning the wages of him who had employed him. To ascertain who it was who employed him, it is reasonable to consider whose interest the forgery was made to serve. And there can be no doubt, and there has been no doubt, that the only individual whose interests were served by this particular forgery was the appellant Chhotalal. The inference arising from this circumstance is further strengthened by other parts of the evidence, and the result of it all is, in my opinion, a clear conviction that the appellant is guilty of the offence charged against him. I think, therefore, that the appeal should be dismissed.

Chandavarkar, J.

18. I concur.

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