1. These are two applications in revision arising under the following circumstances:
Accused No. 1 was in possession of a house at Dakore under a rent note dated the 13th of July 1918. The house belonged to the complainant, Bai Dhiraj. That rent-note expired in June 1919, and Bai Dhiraj asked accused No. 1 to vacate the house. About this time a document, Exhibit X in the case, is said to have been fabricated by accused No. 1. That document purports to be a rent-note executed by accused No. 1 in favour of Bai Dhiraj. It purports to have been executed on the 14th of June 1919, and the terms of the document indicate that Bai Dhiraj had let the house to him for four years on an annual rental of Rs. 30. This document was presented for registration by accused No. 1 on the 17th of June and on his admission of the execution of the document it was registered on that day. Bai Dhiraj, however, was anxious throughout to get possession of the house and in the course of her efforts to get accused No. 1 to vacate the house she came to know of the document which was presented for registration on the 17th of June. The document was written by accused No. 2, and attested by accused No. 3 and one other person. After taking advice in the matter Bai Dhiraj lodged a complaint on the 10th July 1919 against accused No. 1 her tenant, accused No. 2 the writer of the document, and accused No. 3 one of the attesters of the document. Bai Dhiraj repudiated all knowledge of the document and maintained that the document was false. The defence of accused No. 1, which was supported by the other accused, was that the document was written with the consent and knowledge of Bai Dhiraj. There was considerable evidence on both sides and as a result of the consideration of the evidence the trial Magistrate came to the conclusion that the document was false. Accordingly he convicted all the three accused under the first part of Section 193 for fabricating false evidence for the purpose of being used in a judicial proceeding and sentenced the accused to different terms of imprisonment and fines. The accused appealed to the Sessions Court at Ahmedabad, and the learned Sessions Judge found the facts generally in favour of the prosecution, confirmed the convictions of accused Nos. 1 and 2, felt a doubt as to the guilt of accused No. 3 and acquitted him. The sentences were modified by the Sessions Judge as to accused Nos. 1 and 2.
2. Now accused Nos. 1 and 2 have applied to this Court in revision. Two points have; been urged in support of his application on behalf of accused No. 1 Rajaram Bhawanishanker. First, it is urged that one of the essential conditions required under Section 192 of the Indian Penal Code for fabricating false evidence is that there should be an intention on the part of the person fabricating the document that such document so appearing in evidence may cause any person who, in such judicial proceeding, is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. It is urged that this condition is not satisfied in this case and is not capable of being satisfied as the document said to have been fabricated would be inadmissible in evidence. Secondly, it is urged that there was no judicial proceeding in existence at the time and nothing to show that there was any judicial proceeding contemplated at the time and that therefore it could not be said that it was intended that the document in question should appear in evidence in a judicial proceeding, or that the document was fabricated for the purpose of being used in any stage of a judicial pro-deeding.
3. As regards the first point the whole argument is based upon the proposition that the document in question, which is a rent note, is inadmissible in evidence, and certain decided cases have been referred to in support of the further proposition that in case the document fabricated is inadmissible in evidence the last condition required under Section 192 cannot possibly be satisfied. I am, however, unable in this case to accept the first proposition that the document is inadmissible in evidence. The document purports to be a rent note executed by accused No. 1 in favour of Bai Dhiraj and as such it contains an admission against the interest of the person purporting to execute it. Accused No. 1 admits therein that he is a tenant. He admits his liability to pay certain annual rent. In my opinion it is an entirely untenable position that this document could not be admitted in 'evidence, because it would be an admission by the accused No. 1 in his own favour. As 1 take this view as to the admissibility of the document in question, I do not consider it necessary to examine the further part of the argument which is based upon certain decided cases, and I express no opinion thereon. I feel quite clear that the first contention must be disallowed. As regards second contention it is true that no judicial proceeding was pending at the time. It is also true that ho notice was given by Bai Dhiraj threatening to take any judicial proceeding against accused No. 1. But it is clear from the evidence that Bai Dhiraj then insisted upon accused No. 1 vacating the house and for one reason or other the tenant was anxious to hold on to the house. Under these circumstances it is quite a reasonable inference that in case of his refusal to vacate, there would be an ejectment suit by Bai Dhiraj against him, and the only reasonable purpose for which the document which accused No. 1 took the trouble of getting registered could be said to have been intended is its use in a judicial proceeding which might be initiated against him. it is not essential for the purpose of Section 192 that there should be any judicial proceeding pending at the time of the fabrication. It is enough that there is a reasonable prospect of such a proceeding having regard to the circumstances of the case and that the document in question is intended to be used in such a proceeding. The fabrication in the present case satisfied the requirement of Section 192 as to the intention to use the document in a judicial proceeding. I have no doubt that both the lower Courts are right in holding that accused No. 1 intended that this document should be used in a judicial proceeding.
4. Lastly on his behalf it was urged that the finding of the lower appellate Court on the evidence was largely based upon probabilities. But having regard to the reasons given by the learned Sessions Judge in support of his finding it is clear that it is based upon evidence and in revision we must accept, the finding that Bai Dhiraj never consented to allow accused No. 1 to continue as a tenant and never consented to the rent-note being executed by accused No. 1 in her favour. There is no doubt, therefore, as to the correctness of the conviction of accused No. 1.
5. As regards the sentence it seams to me that practically nothing was done in respect of this document. The whole thing came to be known before accused No. 1 could make any use of the document, and in view of all the circumstances connected with the case I am of opinion that the sentence may properly be reduced to rigorous imprisonment for six months.
6. I would accordingly confirm his conviction, and reduce the sentence to rigorous imprisonment for six months.
7. As regards accused No. 2, Nagarbhai Talsibhai, he is a professional writer of documents and undoubtedly he wrote the rent note in question. Beyond the general suggestion that he is on friendly terms with accused No. 1, there is no evidence in the case to show that at the time he wrote this document he, had any guilty intention or knowledge. Such a document might well be written by a person in the position of accused No. 2. either at the instance of Bai Dhiraj or of Rajaram, accused No. 1. Apart from the defence which he has made in this case, there is nothing in the evidence to prove any guilty intention on his part, The lower appellate Court has confirmed his conviction on the ground that he stated in his defence that the document was written at the instance of Bai Dhiraj. This defence is found by the lower appellate Court to be false and must be accepted as being false for the purposes of this application. I do not think, however, that his making such a false defence, when he was being jointly tried with accused No. 1, is a sufficient basis for supplying the lacuna which undoubtedly exists in the prosecution case so far as accused No. 2 is concerned. The explanation, which is offered by an accused person under Section 342, is after all to explain the evidence against him, and in the present case I. do not think that really there was any evidence against accused No. 2 to show his guilty intention. Under these circumstances I do not think that it would be fair to press the false explanation, offered by him at the trial, against him to the extent to which it has been pressed by the lower appellate Court. The lower appellate Court took, in my opinion, a reasonable view as to the case of accused No. 8 and should have taken the same view of the position of accused No. 2 In his case, I do not think that the charge is established.
8. I would, therefore, set aside his conviction and sentence, acquit him and direct his bail-bond to be cancelled.
9. I concur.