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The State Vs. Abu Ismail Merchant - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 420 of 1958
Judge
Reported inAIR1959Bom408; (1959)61BOMLR345; 1959CriLJ1057; ILR1959Bom865
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 162, 164 and 297; Constitution of India - Article 20(3); Indian Penal Code (IPC), 1860 - Sections 379, 403, 410, 411, 467 and 471
AppellantThe State
RespondentAbu Ismail Merchant
Appellant AdvocateR.B. Kotval and ;N.M. Patil, Advs.
Respondent AdvocateB.R.Sompura, Asst. Govt. Pleader
Excerpt:
constitution of india, article 20(3) - criminal procedure code (act v of 1898), section 162 -- accused without compulsion furnishing evidence which could be used against him -- whether using such evidence at trial of accused violates constitutional guarantee under article 20(3) -- whether asking accused to give his handwriting for purpose of comparison with disputed document amounts to taking statement under section 162 of code.;the constitutional guarantee under article 20(3) of the constitution of india protects a person accused against being compelled to furnish evidence against himself. where the evidence is collected by a police officer under a judicial mandate as in the case where pursuant to a search warrant, documents or things are seized and produced in court, there is no.....shah, j.1. the accused abu ismail was tried in sessions case no. 21 of 1957 for offences under section 411, section 467, and section 471 read with section 467 of the indian penal code. the accused was tried before the additional sessions judge, greater bombay, with a common jury. the jury brought in a majority verdict of 8 to 1 against the accused for the there offences charged against him. the learned additional sessions judge accepted the verdict of the jury and convicted the accused and sentenced him to suffer rigorous imprisonment for two years for the offence under section 411, to rigorous imprisonment for five years and a fine of rs. 1,000/- and in default of payment of fine rigorous imprisonment for six months in addition fort eh offence under section 467, and to rigorous.....
Judgment:

Shah, J.

1. The accused Abu Ismail was tried in Sessions Case No. 21 of 1957 for offences under Section 411, Section 467, and Section 471 read with Section 467 of the Indian Penal Code. The accused was tried before the Additional Sessions Judge, Greater Bombay, with a common jury. The jury brought in a majority verdict of 8 to 1 against the accused for the there offences charged against him. The learned Additional Sessions Judge accepted the verdict of the Jury and convicted the accused and sentenced him to suffer rigorous imprisonment for two years for the offence under Section 411, to rigorous imprisonment for five years and a fine of Rs. 1,000/- and in default of payment of fine rigorous imprisonment for six months in addition fort eh offence under Section 467, and to rigorous imprisonment for five years for the offence under Section 471 read with Section 467. All the substantive sentences were directed to run concurrently. The accused has appealed to this Court.

2. The prosecution case was briefly this. There is a firm Hiremani and Jaglur and Co., carrying on business sin oil and flour at Hubli in the district of Dharwar. That firm is the proprietor of the Sangameshwar Oil and Flour Mills. The firm of Hiremani and Jaglur and Co. had business dealings with K. Umakant in Bombay. About the month of May 1956, Hiremani and Jaglur and Co., which will hereafter be referred to as the Hubli firm, stood indebted to K. Umakant in the sum of Rs. 16,000/-. On 21-5-1956, the Hubli firm obtained from the Canara Industrial and Banking Syndicate Ltd., a demand draft for Rs. 8,000/- from the branch office of the bank at Hubli, and sent it by ordinary post with a letter , dated 21-5-1956. The letter was addressed to K. Umakant. It appears that this draft with the enclosing letter did not reach K. Umakant. On 26-5-1956, K. Umakant wrote a letter to the Hubli firm informing the later that he was awaiting the draft for Rupees 8000/- 'as per wire and call', but the same was not received till 4 p.m. that day. This letter was replied to by the Hubli firm by letter, dated 30-5-1956. The Hubli firm referred in that letter to a telegram informing K. Umakant that a draft on the Canara Industrial and Banking Syndicate Ltd., No. 075509, dated 21-5-1956, had already been despatched on 21st May, 1956 and the balance of Rs. 5,000/- was sent on 27th May. The Hubli firm further stated that they were surprised to learn that the draft for Rs. 8,000/- was not received by K. Umakant. They asserted that it was posted on 21-5-1956 with an enclosing letter. The letter then proceeded to state:

'Probably as it is an ordinary post might be received by you in your office by anyone in your office. So please enquire in your office and please let us know by wire about the receipt of both for Rs. 13000/- and credit the same to our account.' After this letter was despatched it appears, intimation was received by the Hubli firm that the draft had not been received by K. Umakant. A partner of the Hubli firm then came to Bombay. and made enquiries and ultimately on 4-6-1956 a compliant was filed at the Maharbavri Police Station by Chanappa Basappa on behalf of the Hubli firm for theft and forgery of a valuable security and using a forged document, viz, a draft for Rs. 8,000/- by some person unknown. It was stated in the complaint that after receiving information. from K. Umakant that the draft was not received enquiries were made and it was found that the draft had been cashed by a third party not known to K. Umakant and accordingly the complainant had arrived at Bombay on 2-6-1956 and had reported the matter to the police. It appears that on 25-5-1956 an application for opening an account in the name of Kamalakant Umakant Joshi residing at Patel Mansions, Chowpaty, Bombay 7, was submitted to the Manager of the New Citizen Bank of India, Ltd., Queen's Road Branch, Bombay. In the application the introductory reference was given by one Seth C. Das and the occupation of the applicant was shown as 'Commission Agent' and address as 'Opposite to Grant Road Station'. The applicant deposited a sum of Rs. 500/ in cash for opening the account. The management of the New Citizen Bank of India, Ltd., opened an account in the name of Kamalakant Umakant Joshi on 25-5-1956. In the specimen signature card which accompanied the application it was stated that the applicant will sign on cheques as 'K. Umakant.' In the afternoon of the same day, the draft for Rs. 8,000/- which was sent by the Hubli firm addressed to K. Umakant of Bombay was presented by the applicant who had opened the account with the New Citizen Bank of India, Ltd. It appears that one Gambre, who was the ledger-keeper in the bank asked the person who presented the draft to endorse the same in his presence even though the draft bore already an endorsement by K. Umakant. The draft was then presented in the bank together with a paying-in-slip and the amount of the draft was duly credited in the account. Thereafter the person who opened the account with the bank and deposited the draft for Rs. 8,000 made enquiries from time to time about the cashing of the draft. On 28th May 1956, he approached Gambre and was told that the draft had been cashed and credit was given to him. Thereupon a cheque for Rupees 7,900/- was drawn in favour of self' and the amount was withdrawn by the person who had deposited that draft. It appears that an amount of Rs. 400/- had been withdrawn by a cheque in the name of J.K. Joshi on 25th May 1956. It appears that three more cheques respectively for Rs. 5000/- Rs. 3,000/- and Rs. 2,000/- were deposited but those cheques were dishonoured. On 30th May 1956, the net balance which remained with the bank in the account opened on 25th May 1956, was Rs. 171/12/. It is the case for the prosecution that the accused had received the draft for Rs. 8,000/- knowing the same to be stolen property and had thereafter endorsed the same in favour of the New Citizen Bank of India, Ltd., and had withdrawn the amount of Rs. 7,900/- which as the proceeds of the draft. Pursuant to the complaint made on 4th June 1956, investigation was started by the police and ultimately the accused was arrested and he was charged wit the offence under Section 379, or,in the alternative under Section 411 of the Penal Code and also for the offences under Section 467, of the Penal Code. The case against the accused was committed to the Court of Session for trial, and the accused was, at the trial, convicted by the learned Additional Sessions Judge and sentenced in the manner set out earlier.

3. The conviction of the accused having been recorded by the learned Additional Sessions Judge in a trial held with the aid of a jury, this Court is incompetent to interfere with the verdict of the jury unless the verdict is shown to be erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. We have, therefore, to consider in the first instance whether the verdict of the jury is vitiated as a result of any misdirection or non-direction amounting to mis-direction which has prejudiced the accused.

4. At the trial before the learned Additional Sessions Judge, the prosecution examined one Tanmalrai Balwantrai Thakor, the local Manager of the New Citizen of India, Ltd., and Narayan Anant Gambre, the ledger-keeper, Umakant Harisukh Wahalia a p partner of K. Umakant, Shivappa Basappa Jiglur and Chanappa Basappa Sajjanar- partners of the Hubli firm, Naval B. Tarapore Sub-Inspector of Police, two panchas Vithaldas P. Bhuta and Gopal Ramprasad, and a handwriting expert S.L. Gopal Ramprasad, and a handwriting expert S.L. Phansalkar. Tanmalrai Thakor identified the accused as the person who had attended the office of the as the person who has attended the office of the New Citizen Bank of India, Ltd., on 26-5-1956, and had opened an account with the bank. Gambre stated in his evidence that the accused had submitted an application for opening an account that the specimen signature card was filled in by the accused in his presence and that thereafter the accused had deposited a bank draft for Rs. 8,000/- drawn on the Canara Industrial an Banking Syndicate Ltd. The witness identified the draft produced before the Court and stated that it was endorsed in is presence by the accused on the reverse. The witness stated that there was originally an endorsement on the reverse of the draft by as it was not made in his presence he asked the accused to make another endorsement which the accused did in his presence. He further identified the draft and the paying-in-slip filled in by the accused. He also stated that the accused ha don 28-5-1956 mad enquiries about the clearance of the draft and he had been informed that the draft was cleared and thereafter the accused had written out a cheque of Rs .7,900/- and withdrawn the amount from the bank. Witnesses Shivappa Jiglur and Chanappa Sajjandar gave evidence about the despatch of the draft from Hubli and the filing of the complaint before the Maharbavdi Police Station. Vithaldas Bhuta, the Honorary Magistrate deposed to he identification by Gambre of the accused as the person who had opened the account with the New Citizen Bank of India, Ltd., and who had filled in the paying-in-slip and had endorsed the draft and also made enquiries on 29-5-1956 about the clearance of the draft. Witness Gopal Ramprasad, the other Panch, deposed to the writing by the accused on certain sheets to the handwriting expert Phansalkar for comparison with the signatures found on the draft and the other writings in the custody of the New Citizen Bank of India, Ltd. Witness Phansalkar gave evidence and stated that the writing given by the accused in the presence of the Panch and the police office was the writing of the same person who had written the documents which were taken possession of from the New Citizen Bank of India, Ltd., being the application for opening the account, the paying-in-slips, cheques and the endorsements of he reverse of the draft. Tarapore, Sub-Inspector of Police, gave evidence regarding the investigation of the offence by him. It appears that the jury accepted the prosecution case that it was the accused who had presented the draft ad the bank and had made an endorsement on the reverse of the draft in the presence of Gambre and that the accused was not the person who was the addressee of the letter which was sent by the Hubli firm with which the draft was enclosed. As we have already observed the verdict of the jury is binding upon the Court unless it is shown that the verdict was vitiated on account of some mis-direction or non-direction amounting to mis-direction.

5. Mr. Kotwal, who appears on behalf of the accused, has contended that the learned Additional Sessions Judge mis-directed the jury on several material points. It is submitted by Mr. Kotwal that when the learned Judge told the jury in paragraph 16 of his charge that the draft produced before the Court must be regard as stolen property he was in error. The learned Judge told the Jury that it appeared from the evidence of witnesses Shivappa, Umakant and Chanappa that the demand draft was obtained by the Hubli firm form the Canara Industrial and Banking Syndicate, Ltd., and was despatched to Bombay along with a letter addressed to K. Umakant. He then pointed out that there was no cross-examination of the two witnesses. He then observed that if the jury accepted their evidence.

'there can be no doubt that the demand draft was sent from Hubli and it was not received by K. Umakant for whom it was meant and it got into some unknown person's hand for whom it was not meant and so the prosecution want to style that demand draft as stolen property.'

He then stated:

'Obviously it become stolen property because it did find its way in the hands of the person for whom it was (not) meant, possession of which under Section 410 was transferred by theft.'

Mr. Kotwal says that there is no evidence to show that the draft was in fact stolen. But even if property is not transferred by theft but it transferred as a result of criminal misappropriation, criminal breach of trust or robbery, the property will still be regarded as 'stolen property' within the meaning of Section 410 of the Indian Penal Code. A bare perusal of the section is sufficient to show that property, the possession whereof has been transferred by theft, or by extortion or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is called stolen property'. Mr. Kotwal suggested that it may be possible that by reason of deception practised upon someone the accused might have come into possession of the draft and the draft may then not be regarded as stolen property' within the meaning of Section 410, as property , possession whereof has been transferred by deception or cheating, is not stolen property' within the meaning of that section. But evidently a draft had been sent by the hubli firm with a letter addressed to K. Umakant and it has come into the hands of some person who presented it at the New Citizen Bank of India, Ltd., on 26-5-1956. Evidently the letter was posted on 25-5-1956 and in the normal course it was in the possession of the post office. It has admittedly come into the possession of some person who was not entitled to it from the postal authorities. Even if the person who obtained wrongful possession may be assumed to have obtained possession of the letter by cheating when that person converted the same to his own use, he must be deemed to have criminally misappropriated the draft contained therein.

6. Mr.Kotwal then contended that there was no clear evidence as to the identification of the person who presented the draft at the office of the New Citizen Bank of India, Ltd., Queen's Road. It is true that Tanmalrai Thakore, who purported to identify the person who opened the account on 25-5-1956, was unable to identify the accused at the identification parade, and to that extent the testimony of Thakore may be regarded as unreliable. But Gambre did identify the accused at the identification parade which was held in the presence of a Magistrate and he also identified him before the Court. The learned Additional Sessions Judge pointed to the evidence of Thakore and Gambre to the jury and also the infirmities in their evidence and left it to the jury to decide whether the evidence of Thakore and Gambre, and especially the evidence of the latter, should be accepted. it appears that Gambre and thakore had told the police that the person who had come to open the account had curly hair and 'appeared like a Gujarati.' The learned Judge pointed out that the accused who was produced before the Court had not curly hair. He then stated:

'However, it is the face and facial peculiarities which are important than the appearance of hair but curly hair would also be of importance and it is for you to decide whether this should affect Gambre's identification.'

He then referred to the statement made by the witnesses that the person who presented the draft looked 'like a Gujarati and he summarised the evidence in the behalf and told the jury that they were entitled to come to their own conclusions on 'that aspect of the mater also.' Mr. Kotwal says that the learned Judge substantially told the jury that the statement made by the two witnesses that the person who had come to open the account on 25-5-1956 had curly hair should be ignored and the jury must concentrate upon the facial peculiarities as disclosed in the statement before the police. This, Mr. Kotwal says, amounted to a mis-direction of the Jury. We are unable to agree with that contention. The learned Judge told the jury that they had to take into account the facial peculiarities of the accuse das well as the curly hair which the person who opened the account had according to the witness. He told the Jury that all these characteristics were important and the jury had to decide whether Gambre's identification even though the accused when produced before the Court had not curly hair should be relied upon. In our view this direction cannot be regarded as a mis-direction.

7. Then Mr. Kotwal contended that the identification parade held during the course of investigation was no identification parade at all. it was urged that Gambre had come in contact with the police and he had ample opportunity of seeing the accused before he was called upon to identify him. In support of that contention Mr. Kotwal urged that Gambre had stated that he was called by a police constable to the identification parade, whereas the Honorary Presidency Magistrate who officiated at the identification parade stated that he had asked the panchas to call the identifying witnesses. The learned Judge put the respective versions of the Honorary Presidency Magistrate and of Gambre and told the jury that it was for them to decide whether the evidence of Gambre should be accepted in preference to the evidence of the Honorary Presidency Magistrate. Mr. Kotwal says that thereby the learned Judge conveyed to the jury that there was an irreconcilable inconsistency between the two statements and that in so doing the learned Judge was in error. It was submitted by Mr. Kotwal that it is possible that a panch was asked by the Presidency Magistrate to call an identifying witness and the panch may have asked the police constable to call the identifying witness. But no such suggestion appears to have been made in the Court below and we do not think that there has been any misdirection when the learned Judge put the two respective versions of Gambre and of the Honorary Presidency Magistrate before the Jury. The argument of Mr. Kotwal that there was a possibility of some police constable that there was a possibility of some police constable having had access to Gambre and having given information to him relying upon which Gambre could have identified the accused is based solely on the assumption that the identifying witness. Gambre had met a police constable who gave him that information. Gambre has evidently denied that he met any police constable and that he was told about the appearance of peculiarities or characteristics of the accused. The learned Judge has put that evidence to the jury and we do not think it can be said that there was any misdirection by the learned Judge on this point.

8. It was then urged by Mr. Kotwal that the learned Additional Judge did not tell the Jury that Gambre was an interested person and on that account his testimony should be disbelieved. Mr. Kotwal says that Gambre himself was the person who had parted with a large sum of money and it is likely that he himself being likely to be involved in trouble might have attempted falsely to identify the accused as the person who has presented the draft at the bank and had received the amount of Rs. 7,900/- Now whether Gambre's testimony should or should not be accepted was a matter of which the Jury were the sole judges. The learned Judge is his charge to the Jury exhaustively discussed the evidence and told the jury in paragraph 30 of his charge to consider whether the accused was the person who made the endorsement on the draft in the presence of Gambre and presented the same at the counter and put in his accounts. He then told the Jury:

'That will depend upon whether you are impressed by his demeanour or not, whether it is probable fro him to be there at the material item or not, whether there are such discrepancies or contradictions to his discredit os as to make you ignore his evidence or the omissions brought to your notice by me are so grave that they go to discredit the testimony. After taking into account all these factors if you find his evidence is not acceptable to you handwriting expert's evidence need not bother you at all.'

We do not think that the learned Judge did not adequately guide the jury in assessing the value to be attached to Gambre's evidence merely because he did not tell jury that the defence may contend that Gambre was an interested person. It does not appear to have been even suggested in the Court below that Gambre was on interested person and on that account his testimony is open to suspicion.

9. Then Mr. Kotwal contended that Gambre had committed a mistake as to the date on which the draft was brought to the bank. Whereas in his evidence before the Court he stated that the draft was produced before the bank on 25th May, he had stated before the police that the draft had been produced before the bank on 26th May. Evidently the statement made before the police was mistaken because from the account of the bank it appears that credit was given in the account opened in the name of Kamalakant Umakant Joshi in the sum of Rs. 8,000/- on 25-5-1956. The learned Judge pointed out to the jury this discrepancy in the testimony of Gambre and the statement made by him before the police, and we do not think that there was any misdirection made by the learned Judge in telling the jury what the evidence of Gambre before the Court was and what his statement made before the police was.

10. It was then urged that Writer, the cashier of the bank and Chhabildas who introduced the accused to the New Citizen Bank of India, Ltd., were not examined by the prosecution. Mr. Kotwal also urged that the report made by Thakor to his superior officers was also not produced and on that account the learned Judge should have told the jury that an adverse inference should be raised against the prosecution. But it is now well settled, that it is for the prosecutor to lead such evidence as he thinks is necessary to unfold the prosecution case and it is not necessary for him to examine we very witness who may conceivably have same knowledge or information about the commission of the offence. The names of Chhabildas and writer were disclosed to the defence and it was open to the defence to examine these witness if they so desired. Evidently the evidence of chhabildas might have been of some importance to the defence if Chhabildas had not identified the accused before the officers of the New Citizen Bank of India Ltd. But Chhabildas was not examined by the accused . We do not think that failure on the part of the prosecution to examine Chhabildas or Writer the cashier, affects the prosecution case: nor can any adverse inference arise by reason of the failure of the prosecution to examine Chhabildas and Writer or to produce the report made by Write. It may be stated that the prosecution was never called upon to produce the report made by Thakore.

11. It was then urged by Mr. Kotwal that there had been a serious, irregularity in the trial of the accused. Mr. Lotwal contended that the accused was by threats compelled to give his handwriting to the police officer and that writing was utilised by Phansalkar, the hand-writing expert, and that by the use of that writing the provisions of Section 162 of the Code of Criminal Procedure and Article 20(3) of the constitution of India were infringed. Mr. Kotwal submitted that the prosecution had in using the statement made by the accused in substance compelled the accused to give evidence against himself. Mr. Kotwal also submitted that the learned trial Judge had allowed evidence to go on the record without deciding the question as to the admissibility of such evidence and on that account also there was irregularity in the trial. It is true that when the panch witness Gopal Ram Prasad was examined on behalf of the prosecution, an objection was raised by Counsel appearing on behalf of the accused that the sheets of paper alleged to be in the handwriting of the accused could not be used as evidence, and admitting the documents on the record as evidence amounted to infringement of the provisions of Article 20(3) of the Constitution. The learned Judge held that the question whether Article 20(3) of the Constitution had any application must depend upon proof of certain facts viz. whether any compulsion was used on the accused when he gave his handwriting and on that point a suggestion was made by Mr. Neemuchwalak for the accused that threats were administered to the accused before specimen hand-writing were obtained. Which suggestion was denied by the officer. He observed that as the decision on what was essentially a question of fact depended upon proof or disproof of those facts, it must of necessity be given after all the evidence was recorded and that he would tell the jury to consider the question in the course of summing up. In our view, in so doing the learned Judge was not in error. Evidently the question whether the writings had been obtained by the police officer from the accused by compulsion was a question fact which had to be decided by the jury and the jury could not be called upon to give an interlocutory verdict on that question. The learned Judge was, therefore, justified in admitting the evidence of the Panch as well as the police officer and of the handwriting expert and then in asking the jury to consider the question whether the writing had been procured by compulsion or threats as alleged by the accused. The jury having come to the conclusion that the accused in guilty of the offence charged must be deemed to have held that this evidence relating to the handwriting on the papers relied upon by the prosecution was reliable and that the accused was not compelled by threats or coercion to give his handwriting. The learned Judge has told the jury in the course of his charge that if they came to the conclusion that the writings had been procured by threats or compulsion as alleged by the accused they were entitled to reject the evidence of the handwriting expert. The learned Judge having given proper directions to the jury in this behalf, we cannot say that to the jury in this behalf, we cannot say that there has been any misdirection by the Judge or any error of procedure in the trial in allowing the evidence of documents to go on the record, the admissibility whereof was in doubt till certain questions of fact were decided.

12. By Article 20(3) of the Constitution it is enacted that no person accused of any offence shall be compelled to be a witness against himself. It is now well settled that the expression 'to be a witness' means to furnish evidence', and the constitutional guarantee is not restricted in its ambit to proceedings in the Court room; the protection afforded to an accused person in so far as it related to the phrase to be a witness' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is, therefore, available to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. M.P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) . The guarantee however, protects a person accused from being compelled to furnish evidence against himself. Where the evidence is collected by a police officer under a judicial mandate a sin the case where pursuant to a search warrant documents or things are seized and produced in Court, there is no circumvention of the constitutional guarantee; no is every volitional act of a person accused which is evidence or facilitates collection of evidence against him to be deemed compelled merely because the act is relied upon in the judicial proceeding against the person accused.

13. A Division Bench of this Court in State v. Arabasha Ahmed Sayeed, Confirmation Case No. 4 of 1958, D/-18-3-1958,held that by using the finger prints of an accused person taken during the course of investigation by a police officer, as evidence at the trial, the constitutional guarantee under Article 20(3) was not violated.

14. The Madras High Court in re Palani Goundan : AIR1957Mad546 , also has expressed the same view. In that case it was observed:

'The principal of protection against self-incrimination is not confined to the oral evidence of a person a standing his trial for an offence when called to the witness-stand, and it refers to all kinds of evidence which the accused might be compelled to produce as a positive volitional evidentiary act. It follows that any attempt to compel the accused to produce evidence of nay kind which is likely to support a prosecution against him would be struck down by Article 20(3) of the Constitution. Any incriminating or relevant object or document or other form of evidence can be seized under process of law from the custody or person of the accused; but he cannot be compelled to produce it.. it is important to bear in mind that while it may be open to a police officer to seize.. incriminating articles of evidence from the person of the accused, he cannot himself be compelled to produce them.. The taking of thumb impression or the signature of the accused does not stand on a different footing from the seizure of documents or articles or other facts of evidence from the person of the accused. Though he can not be compelled to produce such evidence it can be taken or seized from him, that is an act of be taken or seized from him, that is 'an act of another to which he is obliged to submit and not the positive volitional evidentiary act' of the accused.'

It is evident, therefore that the Constitution does not prohibit a person accused of an offence from furnishing evidence which may be used against him; it only affords a protection against compulsion in furnishing evidence.

15. In the case before us it appears that the jury regard the evidence that the disputed hand-writing on the endorsements on the draft, the application form pay-in-slip and cheques, were of the accused was reliable. The jury also appear to have been of the view that the writings with which these documents were compared were not procured by compulsion. There being no compulsion in procuring the hand-writing of the accused in the course of investigation, there was, in our judgment no infringement of Article 20(3).

16. The contention that asking a person accused to give his handwriting for the purpose of comparison with a disputed document amounts to taking a statement has in our judgment no substance. Under the Code of Criminal Procedure the investigating officer is invested with wide powers. He is entitled to collect evidence and for that purpose to search for documents or things and seize incriminating articles or documents and compel the presence of persons, believed by him to be conversant with matters relating to the case under investigation for examination to make panchanamas, to hold identification parades and to send person to a competent Magistrate for their statements to be recorded under Section 164. All these are steps in the investigation and are primarily acts done by the investigating officer, and because he is directly or indirectly concerned with them, the acts done by the person accused do not thereby become his statements within the meaning of Section 162. When a person accused of an offence accompanies a police officer in the course of investigation or complies with a request to give his handwriting or thumb impression for comparison, he does not in our judgment, give a statement proof of which is prohibited by Section 162 of the Code of Criminal Procedure.

17. It was then urged by Mr. Kotwal that even though the accused denied that the statements relied upon by the handwriting expert for the purpose of comparison with the disputed writings were his writing the learned Additional Sessions Judge did not put to the jury the evidence for the prosecution and the denial by the accused. Mr. Kotwal urges that this was a non-direction on a material question which amounted to a misdirection and prejudiced the accused. We are unable to agree with the contention of Mr. Kotwal on that point also. There was the evidence of the panch witness who stated that the accused had written in his presence the writings which were relied upon by the prosecution. He denied the suggestion that those were not writings of the accused. The police officer Tarapore also gave similar evidence and denied the suggestion that the writings relied upon the prosecution were not the writings given by the accused. The learned Additional Sessions Judge asked the jury to consider the question whether the writings were the writings given by the accused voluntarily. It does not appear that in the course of his address to the jury the learned counsel appearing on behalf of the accused even suggested that the writings relied upon by the prosecution were not the writings of the accused. The whole case appears to have been argued on the footing that the writings were given by the accused but they were procured by coercion or compulsion of the accuse,d and the learned Judge charged the jury accordingly. the jury had the entire evidence before them, and we do not think that failure on the part of the learned Judge to expressly point out tot he jury the evidence of the panch and of the police Officer and the denial by the accused, amounted to a misdirection which has affected the verdict of the jury.

18. We have, carefully considered all the contentions raised by Mr. Kotwal and we are of the view that the verdict of the jury cannot be regarded as vitiated on account of misdirections or non-directions amounting to misdirections or on account of any error of law which would justify this Court in re-appreciating the evidence. We, therefore, confirm the order of conviction and sentence passed by the learned Additional Sessions Judge and dismiss the appeal.

19.Appeal dismissed.


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