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Anaji Venkatesh Mujumdar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in87Ind.Cas.593
AppellantAnaji Venkatesh Mujumdar and ors.
RespondentEmperor
Excerpt:
.....that in the main it was true with regard to the third accused. it must also be remembered that the evidence shows that before the swami died one nilkanthaswami was installed as a swami and the third accused was perfectly well aware of that installation, and consequently the court is entitled to conclude that when he produced his forged document in order to support his succession to the math, he must have known what the character of the document was. *therefore, after giving the very fullest consideration to all that has been said by the pleaders on behalf of the accused, it seems to me that a perfectly clear case has been made on the evidences for their conviction on charges of forging;.....magistrate's court on december 23, 1921, knowing then or having reason to believe it to be a forged document; and thirdly, accused nos. 1, 2 and 4 with having instigated and abetted accused no. 3 to so use it, and, thereby committed an offence punishable under sections 467, 471 and 109, indian penal code. the judge convicted all the accused. agreeing with all four assessors he found accused no. 3 guilty of forgery of the will ex.13 and of using it as genuine. agreeing with all four assessors he founded no. 4 guilty of forgery of the will and agreeing with three assessors and disagreeing with the fourth be found accused no. 4 abetted accused no. 3's use of the will as genuine. agreeing with three assessors and disagreeing with the fourth he found accused no. 2 guilty of forgery of.....
Judgment:

Norman Macleod, C.J.

1. The four accused were charged before the Sessions Judge of Belguam, first of all, with having conspired together and forged a document purporting to be a Will passed by one Sanganbasaveshwar. Swami of Chikodi, in favour of accused No. 3 on December 15, 1919; secondly, accused No. 3 with having fraudulently and dishonestly used the said Will as genuine by producing it in support of his claim in the Chikodi Magistrate's Court on December 23, 1921, knowing then or having reason to believe it to be a forged document; and thirdly, accused Nos. 1, 2 and 4 with having instigated and abetted accused No. 3 to so use it, and, thereby committed an offence punishable under Sections 467, 471 and 109, Indian Penal Code. The Judge convicted all the accused. Agreeing with all four assessors he found accused No. 3 guilty of forgery of the Will Ex.13 and of using it as genuine. Agreeing with all four assessors he founded No. 4 guilty of forgery of the Will and agreeing with three assessors and disagreeing with the fourth be found accused No. 4 abetted accused No. 3's use of the Will as genuine. Agreeing with three assessors and disagreeing with the fourth he found accused No. 2 guilty of forgery of the Will and abetting accused No. 3's use of the Will as genuine. Agreeing with one assessor and disagreeing with the other three he found accused No. 1 guilty of forgery of the Will and of abetting accused No, 3's use of the Will as genuine. He did not think there was any reason to make a difference in awarding punishment to the '' accused, as he thought they were all equally involved. So he sentenced all the accused to five years' rigorous imprisonment each' Sanganbasaveshwar Swami of Chikodi died about August 9, 1921, and the Will, the subject-matter of the charge against the accused, was put forward by accused No. 3 to support his succession to the Math.

2. In September, 1921, one Gurushidaya applied for proceedings being taken under Section 145, Cr. P.C., with regard to the obstruction to his possession and enjoyment of a certain Survey Number belonging to the math. It was in the course of those proceedings that the accused produced the document which he asserted proved his title to the math, property. While these proceedings were going on Gurushiddaya, after the Will had been produced by the third accused, charged him with having forged it Accused No. 3 was arrested but was released on his own recognizance, and on February 27,1922, that complaint was for some reason or other dismissed. On April 5, the Magistrate decided the proceedings under Section 145, Cr. P.C., in favour of the applicant, and directed an inquiry under Section 476, Cr. P.C., with regard Will which was alleged to be a forgery. On April 6, the date on which those proceedings commenced, the third accused made a statement before the Magistrate Mr. Shirali in which he confessed that the document he produced was a forged one that he produced it with the knowledge that it was forged. He then detailed how the document came to be prepared and it was in consequence of information then given by the third accused that the present prosecution was instituted. The story he had told to Mr. Shirali was briefly to this effect. The Swami died on the night of August 9, 1921. He was buried on Wednesday, and on Thursday the second accused came to the math and took him to his house which was next door. The second accused said that the third accused had been doing vahivat of the math for many years, and that he should cause application to be made enabling him to succeed to the math. The third accused asked him how he could succeed when the Swami had installed a disciple. The second accused told the third accused that he would succeed if he (the third accused) said that the instalation ceremony was performed after the death of the Swami. Eight days later accused No. 2 took accused No. 3 to the house of accused No. 4, and also brought the first accused. An application was then prepared to be sent to the Collector to the effect that Sanganbasaveshwar Swami was dead and that the name of the third accused should be registered as his successor. As no answer was received another application was sent a week later. The first application was then received back with an endorsement that the third accused should have applied to the mamlaldar. An application was made to the mamlatdar and that was returned asking the third accused to apply to the village officers of the different villages direct.

3. Meanwhile Gurushiddaya had preferred his application, with the result that the conspirators changed their tactics and decided that the document was to be prepared. Accordingly as described by the third accused, on a date which, as tar as it could be fixed, would be about December 15, 1921, the document was ready, and accused No. 3 detailed how the signatures of two persons Bhimappa and Balgauda as witnesses were obtained, while all four of the accused were Hitting in the house of the second accused at Chikodi.

4. Now it has been objected that that confession is not admissible in evidence, and cannot be taken into consideration against the co-accused under Section 30 of the Indian Evidence Act. Section 30 says:

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

5. It is difficult to see how one can avoid coming to the conclusion that this statement made, before Mr. Shirali was a confession. An inquiry was commenced under Section 476, Cr. P.C., with a view to ascertain whether a complaint should be lodged against the third accused with regard to a document produced by him, and any statement made by the third accused, who was then in the position of an accused person, and liable to having a charge made against him of forgery, detailing the circumstances under which the document was forged, would amount to a confession, and the Court would be entitled to take that into consideration as against the other persons who had been jointly tried with him. The confession would have to be tested in order to ascertain whether it was voluntarily made in the first instance, but there is nothing whatever to show that there was any pressure placed upon the third accused' to induce him to make the statement before Mr. Sherali. Mr. Sherali gave evidence before the Sessions Judge in which he said:

The proceedings ended on April 5, 1922, in my decision in Gurushiddaya's favour. My order is below Ex. 3. In that I directed further proceedings against accused No. 3 under Section 476, Cr. P.C. I communicated the order to accused No. 3. He began to cry. lie said he had committed a fault at the instigation of others and began to make a statement. It was then late, so 1 told him to appear next day. Abut noon on April 6, 1922, he appeared and I took his statement. Accused No. 3 made the statement voluntarily. I gave him neither threat nor inducement. The statement was recorded in the vernacular by my clerk and in English by myself. The vernacular statement was then read out to him and was admitted by him to be correct. He made his signature on every page of the vernacular statement in my presence. I also initialled every page and made my signature at the end. i recorded the statement as a statement in my. inquiry under Section 476, Cr. P. C, and not as a confession of an accused person. I consequently did not comply with the provisions of Clause 3 of Section 164, Cr.P.C.

6. It seems to me perfectly clear that Mr. Shirali was sneaking the truth when he says that accused No. 3 as soon as he found that proceedings were going to be commenced, under Section 476, Cr. P.C., decided that it was no use persisting in relying on the Will, and that the safest course for him to take was to make a clean breast of what had been done, and as far as I can see there is not a word in the cross-examination of Mr. Shirali which was directed to show that Mr. Shirali as a Magistrate had been guilty of any improper conduct in conducting the inquiry under Section 476. It seems to me, therefore, that the Judge was perfectly entitled to admit this confession and to hold that in the main it was true with regard to the third accused. But it would not be justifiable, in fact the Court could not rely upon it, with regard to the other accused, if that was the only evidence against them. Therefore, the evidence given before the Sessions Judge by the other witnesses has to be considered, to see whether it affords any support in material particulars to the story which was told by the third accused to Mr. Shirali.

7. With regard to the third accused his contention is that he was not aware that the document he put forward was a forgery and that he was an innocent victim of the machinations of other persons. There is no foundation on the record for that suggestion, and it is difficult to believe that the third accused would have produced the document handed to him by certain persons who were anxious to secure his succession to the math by entering into a criminal conspiracy, without making some inquiry or without having any conversation beforehand with those persons, and without satisfying himself that the document was genuine. It must also be remembered that the evidence shows that before the Swami died one Nilkanthaswami was installed as a Swami and the third accused was perfectly well aware of that installation, and consequently the Court is entitled to conclude that when he produced his forged document in order to support his succession to the math, he must have known what the character of the document was. Besides there is the evidence of several witnesses to prove the co-operation of the third accused in bringing about the forgery. I think, therefore, that the third accused was certainly guilty of using a document which he knew to be forged as genuine, and that he certainly took part in procuring the signatures of the two attesting witnesses. It makes no difference really whether he was found guilty of forging the Will, or using it as genuine knowing it to be forged. The conviction on the latter charge was sufficient. * * * * * * * * Therefore, after giving the very fullest consideration to all that has been said by the Pleaders on behalf of the accused, it seems to me that a perfectly clear case has been made on the evidences for their conviction on charges of forging; a Will and using it as genuine, and abetting each other. We do not interfere with the sentences imposed on accused Nos. 1, 2 and 4 having regard to the serious nature of the offence. But with regard to accused No. 3 considering his confession and other circumstances in the case we reduce the sentence to three years. In my opinion with this exception the appeals should be dismissed.

Fawcett, J.

8. I agree. I would only add that accused No. 3's confession to Mr. Shirali substantially implicates himself to the same extent as the other co-accused, and that is, therefore, another reason for giving it full effect against his co-accused under Section 30 of the Indian Evidence Act.


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