1. In this case we are of opinion that the conviction and sentence must be reversed and set aside. There are points in the case which tell very strongly against the accused. All these points have not, in our opinion, been satisfactorily cleared up. There are other points in the case, however, which create so strong and reasonable a doubt as makes it, in our opinion, impossible to uphold the conviction.
2. The particular facts which are necessary to be mentioned as alleged by the prosecution, are that, on the 23rd of July 1913, the complainant, Supdu, an old man, purchased two stamp-papers of the value of Rs. 6 and 4 respectively with the object of executing a mortgage of one of his fields to a man called Dagdu for a sum of Rs. 1000. He says that he was in need of the money to pay a Savkar Patil to whom, it appears, Dagdu himself was also indebted. Having procured the stamp-papers, the complainant, Supdu, contends that he took them to Waman, the Kulkarni of the village, with the object of getting the mortgage deed drafted, at any rate, to the extent of obtaining the boundaries of the land, which he proposed to mortgage, from the Kulkarni. The Kulkarni declined to write the deed until the mortgagee was brought before him. It is part of the complainant's case that the Kulkarni desired to write the deed in order to obtain the writing fee. Supdu says that he then went in quest of Dagdu who lives in the village of Mamoorabad, some distance away from Neri. Dagdu, according to Supdu, was unwell and refused to return with him and when Supdu returned five days later, on the 28th of July 1913, he says that he learnt that Waman had given the blank papers to Laxman Totaram. Two days later Supdu says that he was informed that Laxman Totaram had forged a sale-deed of 1/3rd of Survey No. 57, a land belonging to Supdu in his (Laxman Totaram's) own favour. It appears that, on the 28th of July 1913, Laxman Totaram, the accused, did present such a deed attested by four witnesses and written by one Nathu Laxman purporting to be signed by the line or mark of the complainant, Supdu, for registration at the Sub-Registrar's office at Jamner. As the executant, Supdu, was not there, the Registrar refused to register. Subsequently, on the 18th of August 1913, Supdu filed a complaint against both Waman and Laxman Totaram in respect of the same deed which had thus been presented for registration. This complaint was verified on the 20th of August 1913. On the same day the accused Laxman Totaram applied to the Registrar for notice calling upon the complainant, Supdu, to appear and acknowledge the execution of the deed. This notice was served on Supdu but he did not comply with it. Accordingly, on the 30th August 1913, the Sub-Registrar finally declined to register and, according to a statement made by the accused before the Magistrate, Mr. Joglekar, the impugned deed was returned to him by Post. Now the trial upon the complaint made on the 20th August by Supdu was referred in the first instance by Mr. Kelkar, the Magistrate to whom the complaint was presented, to a Mamlatdar called Mr. Raoji for preliminary investigation. This investigation appears to have gone on for some time between the 20th and 30th of August. It is a curious circumstance that although the inquiry was into the alleged forgery of this sale-deed, the deed itself was not before the inquiring officer. He appears to have procured the particulars of it, the names of the writer and attesting witnesses, from the Registration Office and it is thus clear that the deed was with the Registrar while the inquiry was in progress. Afterwards by the order of his superior officer, Mr. Kelkar, the Mamlatdar, Mr. Raoji, obtained the deed probably, though this is not appa rent from his own report, from the accused himself and forwarded it to Mr. Kelkar. That Magistrate, after duly considering the preliminary inquiry made by the Mamlatdar, Mr. Raoji, dismissed the complaint under Section 203, that is to say, the conclusion of both these officers was that there was not even a prima facie case against the accused, Laxman Totaram. The Sessions Judge, probably Mr. Clements, directed further inquiry under Section 437 of the Criminal Procedure Code. This inquiry was entrusted to another Magistrate, Mr. Joglekar, who took it up sometime in March 1914 and appears to have gone very thoroughly into the matter. Many witnesses were examined before him and he wrote an elaborate judgment ending with the discharge of the accused persons, Waman and Laxman Totaram. It is to be borne in mind that up to this time both these men were charged equally by the complainant, Supdu, with the forging of this sale-deed. On the 27th of November 1914, the Sessions Judge (Mr. Dutt) this time, we believe, (though this is not apparent on the record) acting under Section 436 of the Criminal Procedure Code, directed Mr. Joglekar to commit the accused person, Laxman Totaram, to the Sessions. He accepted the Magistrate's conclusion with regard to the other accused Waman.
3. Now the statement of Waman throughout had been that Supdu's story about giving him the two blank stamp-papers in order to write the mortgage deed upon them was absolutely false, and this story, as we have now shown, appears to have been, accepted by three inquiring Magistrates and the Sessions Judge himself. But if that story is true, it strikes at the foundation of the whole case, and that is one point which, we think, tells very strongly in favour of the accused, Laxman Totaram. If we are correct in saying that it was Mr. Dutt himself who directed Mr. Joglekar to commit Laxman Totaram for trial, then it is clear that the trial conducted before that learned Judge would have been, from the prisoner's point of view, open to very serious exception. We have not the learned Judge's order under Section 436, but we presume that he must have entirely rejected the whole of Mr. Joglekar's reasoning and appreciation of the evidence so far as that went in favour of the accused, Laxman Totaram.
4. If we are right so far, then it is equally clear that when Laxman Totaram's trial began before the Sessions Judge, that officer's mind must have been considerably biassed against the accused. We do not mean to impute any impropriety to the Judge in this matter since, no doubt, it is the practice in the mofussil to direct Magistrates under Section 436 to commit to the Sessions Court and not infrequently it is the same Judge who, after having made the order under Section 436, himself tries the case. On general principles, however, this, we should say, was, where avoidable, very undesirable. And where the case, as here, presents so many doubtful points, it is a consideration which, we think, ought not to be entirely overlooked. But we do not make it in any way determinant of our decision. That rests upon reasons drawn from the evidence on record as it stands in the light of certain admitted facts and dates. It is quite clear, in our opinion, there would have been no conviction of Laxman Totaram but for his own conduct. What tells most strongly against him is that very shortly after the inquiry conducted by Mr. Kelkar had resulted in the dismissal of the complaint, the accused, Laxman Totaram, managed to lose the impugned sale-deed. His account of this is that after the termination of this inquiry in October 1913 he had taken the deed to a Vakil to obtain that legal gentleman's advice upon it. The Vakil then informed him that since registration had been refused and could not now be obtained, the deed was, for all practical purposes, mere waste paper. Adopting that view the accused says, he took no particular care of it and that he believes that he dropped it out of his pocket while driving to his own village. The fact, however, lends itself to sinister comment and it is the more regrettable in a case of this nature that a document which is alleged to be a forgery should not be before the trying Court.
5. Again, the prosecution most strongly relied upon the testimony of the four attesting witnesses. These agree in saying that they did not attest the signature of the complainant, Supdu, at all. That signature, as we are told, takes the form of a mere line which, the writer says, was made in his presence by the executant, Supdu, and the. attestation of the witnesses is intended to guarantee that fact. All of them, however, say that the deed was brought to each separately by Laxman Totaram and that each in turn thus attested it although the word 'attest' so used is really an abuse of language. What they did attest was merely the deed as it stood having a line which was said to be the mark of Supdu, and that is, of course, no guarantee that the line was in fact drawn by Supdu himself. It is contended, and there is force in the contention, that this is the kind of story which witnesses, situated as these witnesses were, would have been likely to tell. They knew that there was a great trouble about this document and they might very well have thought that the safest course was to tell a story which, whatever the decision of the Courts might ultimately be as to the genuineness or otherwise of the document, would have exposed them to no risk. There is, on the other hand, the writer Nathu who, of course, is obliged to substantiate the version of the accused. His position is quite different from that of the attesting witnesses and since he did write the deed and purports to have witnessed the mark made by Supdu, he could hardly go back upon that in his evidence without making himself liable as an abetter of forgery, if there had been a forgery. His evidence, therefore, although it tells in the accused's favour, has to be materially discounted upon such grounds.
6. The prosecution, again, very strongly relies upon the fact that the accused, although he must have known that no registration could be effected in the absence of the executant, Supdu, took the deed to the Registrar's office on the 28th of July.
7. It is further urged upon us that the accused says that the deed was in fact executed by Supdu on the 24th of July, whereas the evidence in the case proves conclusively that he was not in Neri on that day. It is, indeed, the conduct of the accused himself with reference to the registration of this document which has occasioned us so much difficulty in coming to our conclusion on the case as a whole. It is true that he must have known that his journey on the 28th to Jamner could produce no result and the only way it can be explained is by adopting his own explanation, namely, that he believed that Supdu was following him. However that may be, Supdu did not come to the Registrar's office and it was not until the 29th, the very day on which Supdu's complaint was verified, that the accused applied for notice. Now after that notice had been served and not complied with by the complainant, Supdu, and, as a result, registration had been finally refused by the Sub-Registrar on the 30th August, the accused took no further steps whatever to obtain registration of the deed. It is, therefore, true that by the time the deed was lost, it could have been of no use to him. It had remained unregistered till the time prescribed for appealing had elapsed. The rejection would therefore, have been final and the deed being unregistered, could have no legal effect, Nevertheless, if the accused's story is true, it is strange that he should have allowed a genuine document of this kind to become nugatory without an effort. Against this must be set the consideration that a complaint had been actually made by that time with reference to this very deed and that the complainant declared that it was a forgery. In such circumstances the accused might well have thought that there was very little likelihood of an appeal to the Registrar being successful, at any rate, until the criminal inquiry had terminated.
8. Now we have to consider another point which is of capital importance. The story of the complainant, Supdu, is that he required Rs. 1000 from Dagdu and Dagdu had agreed to advance this to him upon a mortgage. It is obvious that upon this point the evidence of Dagdu was very material. He was not, however, examined in the Sessions Court, but the Judge appears to have admitted the deposition he made before the Magistrate under Section 33 of the Indian Evidence Act. The conditions of that section, however, have not been complied with and no attempt appears to have been made in the Sessions Court to comply with them. Dagdu is, we are informed, still alive. He resides in a village within the jurisdiction of the Sessions Court and his attendance could have been procured without any very great delay or expense. Now, the application of such a section as 33 in criminal cases ought, in our opinion, to be confined within the narrowest limits. Where a witness is material, justice requires that he should, if possible, be examined at the trial in the presence of the accused. Where the evidence of a witness is not material, there is no need to introduce it under Section 33. In this case there can be no doubt that Dagdu's evidence was very material and the learned Sessions Judge has relied upon it in his charge to the Jury. There could have been no serious difficulty in bringing him before the Court and it was the right of the accused to have him there subjected to cross-examination, so that the Judge and the Jury might form their own opinion of the trustworthiness of the witness. It can only be in very extreme cases that it is right to make use of the evidence of an absent witness under Section 33 in a criminal trial where that evidence, if true, would be extremely material and this certainly was not such a case. We think, therefore, that the deposition of Dagdu ought not to have been admitted at all and is not evidence with which we are competent to deal now.
9. Again, it appears to us in view of all that had occurred that the evidence of Waman Kulkarni was very material. The prosecution might well say that since that evidence practically destroyed their own case, it was not for them to call him. We think, however, that the Court itself might very well have required his attendance, even if the accused had declined to call evidence on his own behalf. If Waman had given evidence in the Court of the same kind as his statement made during the inquiry before Mr. Joglekar and if that evidence had been believed, it is difficult to see how the present conviction could have been arrived at. There are other witnesses who were examined at earlier stages in the course of this inquiry but who were not tendered for cross-examination in the Sessions Court. It is the accused's allegation that had many of these witnesses been cross-examined at the trial their evidence would have been of great assistance to him.
10. Another defect in the procedure of the Sessions Judge is that the entire evidence of the complainant given before the Magistrate, Mr. Joglekar, was admitted as a whole during the cross-examination of that witness. Now, it is quite clear that if his previous deposition was intended to contradict him, it was contrary to principle to admit the evidence in this manner without first drawing the attention of the witness to every point upon which it was to be used to contradict him. It is equally clear that if the statement was intended to corroborate the witness as a whole, it could not have been put in in cross-examination. What actually happened appears to have been that the witness was old and deaf and as the accused desired to make use of many statements in his former deposition which the prosecution had neglected to elicit from him at the Sessions trial, it was suggested by the cross-examining counsel that if the witness admitted generally that all these statements were true, they might be put in, thus saving a great deal of time and trouble in the way of repeating each question and eliciting the same answers from him again in detail. To such a procedure no serious exception need be taken, but when it is combined with the same use of the same material for the purpose of contradicting the witness, the procedure followed by the learned Judge is obviously objectionable, and we think that in every criminal trial Judges cannot be too careful to conform strictly with the principles of evidence.
11. Now in the absence of Dagdu's evidence before the Sessions Court we should certainly not make use of any part of the statement he made before the Magistrate which, we think, had been wrongly admitted, to prejudice the accused. But there is much in it which favours the accused person here and, therefore, we think no injustice can be done if we point out that Dagdu clearly had not the command of so much money as to be able to make a loan of Rs. 1000. His statement before the Magistrate, such as it is, suggests to us that the preliminaries of Supdu's story in so far as they relate to the first transaction with Dagdu are probably untrue. If, then, we find the story shaken at its foundation by the statement made by Waman on his own trial and accepted there and if we find again that the preliminaries of that story are not borne out by the evidence of the only material witness, Dagdu, it is clear that the conclusions reached by the learned Judge and one Assessor become at once exposed to criticisms from points of view not taken by the Judge himself and are open to serious and reasonable doubt. There is, in our opinion, an antecedent improbability in the Kulkarni having deliberately given these blank papers to the Patil, Laxman Totaram. No reason is suggested why he should have done so and since it is the complainant's case that he (the Kulkarni) wished to retain the papers in order to earn a fee by drafting the mortgage deed upon them, this conduct becomes the more inexplicable. Then we have his own statement that they were never entrusted to him and that he never saw the papers. We say this from the attitude he adopted throughout the double trials in which he was himself an accused and there can be no doubt that had he been called he would have adhered to the statements he then made. The fact that he was not called proves conclusively enough that the prosecution did not expect any assistance from him.
12. Then, again, there is to be considered the undeniable fact that after this complaint had already been made against him the accused required the Sub-Registrar to issue notice to the complainant, Supdu, to come before him and acknowledge the correctness of the deed. If it had really been a forgery, it seems strange that the accused, Laxman Totaram, should have taken so bold a course at such a time. It may be suggested that as he had the writer with him and inasmuch as Supdu cannot write at all, he might hope easily to prove, in face of Supdu's own denial, that the line on the document was really Supdu's mark. Again, it is a strong point which we have not overlooked against the accused that the consideration he alleges for the forged deed is money which he says that he advanced about a year before the events, we have mentioned, occurred, on the occasion of the marriage of Supdu's grand-daughter, Tulsi, with the accused's son, Kanya. There was such a marriage undoubtedly and we may accept Ganpat's ( son of Supdu's) statement corroborated by that of the accused, that the marriage occurred somewhere about June 1912. The story which Supdu tells appears to us to be, on the face of it, absurd. He says he himself was wrongly confined and that he contributed Rs. 50 only to the marriage expense while Laxman Totaram defrayed the balance. On the other hand, it had not been made clear on behalf of the accused that he really expended Rs. 1000 on Supdu's account for the purpose of this marriage. If that be the true story Laxman Totaram should have had little difficulty in proving this by the production of vouchers and memos of accounts. Nothing of the kind was attempted in the Sessions Court and counsel for the appellant here protests that the point did not occur to any one during that trial, and that is the only reason why the accused did not meet it. It is certainly true that no great stress seems to have been laid upon this point, obviously material, even essential, we might say, though it is.
13. Lastly, the Government Pleader relies upon Sakharam's evidence. In our opinion he belongs to a class of witnesses with whom we are too familiar in mofussil experience. If we could have said anything with confidence about any part of the case, we should have said that this witness, at any rate, was entitled to no credence whatever. He pretends to have come from his village which is at a distance of some fifteen miles from Neri on the evening of the 22nd of July. He admits that he is a relative of the accused and that is the sole ground upon which the learned Government Pleader insists that he ought to be believed. But if he were the relative of the accused and not acquainted with Supdu, it is certainly strange that he should not have gone to the house of the accused, the Patil of the village. Next morning he learned that Supdu and his son had gone to the Kulkarni. He followed them there just in time to witness Supdu making over the two stamp-papers to the Kulkarni and requesting him to fill them in with the boundaries of his land. He then appears to have departed, accompanied by Supdu, to a village in which Dagdu does not reside. The whole of his story is absolutely false and tends to strengthen doubts arising out of the many grounds we have already indicated.
14. Our conclusion upon the whole matter is that although we think the case is one of very grave suspicion against the accused there survive so many elements of doubt and the trial is so irregular in more than one important point that it would be unsafe to confirm the conviction and sentence. We, therefore, set it aside and direct that the accused be acquitted and discharged.