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Damodar Sahu and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 151 of 1954
Judge
Reported inAIR1955Ori156; 21(1955)CLT296; 1955CriLJ1373
ActsIndian Penal Code (IPC), 1860 - Sections 109; Code of Criminal Procedure (CrPC) , 1898 - Sections 237 and 239; Evidence Act, 1872 - Sections 43
AppellantDamodar Sahu and anr.
RespondentThe State
Appellant AdvocateD. Sahu and ;Ch. B.P. Das, Advs.
Respondent AdvocateGovt. Adv.
DispositionAppeal dismissed
Cases ReferredKotha Subba Chetty v. The Queen
Excerpt:
.....the appellants did not challenge the fact that the agreement which was actually filed in the civil suit was forged, but their case was that when aparti failed to execute the sale-deed, the grand-father of damodar, appellant 1, came to puri and handed over the agreement to padmanav das, a mohurir of rai bahadur lokanath misra, an advocate of puri, for the purpose of filing a suit against aparti. therefore, their lordships of the judicial committee pointed out that the test is whether the accused had notice of the facts alleged against him which constituted the offence, and whether the failure to frame a separate charge had caused any prejudice. once the court is satisfied that the accused had notice of all the necessary ingredients of the offence, and that he has suffered no prejudice on..........of rai bahadur lokanath misra, an advocate of puri, for the purpose of filing a suit against aparti.aparti aporoached appellant 1 for a settlement, but appellant 1 declined to enter into a compromise as the agreement had already been made over to padmanav das for the purpose of filing a suit. some time later, appellant 1 came to puri and wanted pudmanav to file a suit, but as padmanav declined to file it, he took back the agreement (which has been marked ext. 14 in the present case) from padmanav and approached another mohurir sushil chandra ghosal, and he filed the civil suit through the help of this mohurir.the appellant 1 suggests that aparti somehow got hold of padmanav and took back the original agreement which he had executed in favour of appellant 1 and replaced it by a.....
Judgment:

Misra, J.

1. There are two appellants before us. Appellant I Damodar Sahu has been convicted under Section 471/ 467, I. P. C., and sentenced to undergo R. I. for four and half years. He has further been convicted under Section 467/109, I. P. C., but no separate sentence has been passed under this section. He has also been convicted under Section 209, I. P. C., and sentenced to undergo R. I. for one year. He has further been convicted under Section 198, I. P. C., and sentenced to undergo R. I. for two years.

Appellant 2 Dasarathi Sahu has been convicted under Section 467/109, I. P. C., and sentenced to R, I. for four find half years. He has also been convicted under Section 193, I. P. C. and sentenced to undergo R. I. for two years. In the case of both the appellants, the sentences of imprisonment are to run concurrently;

2. The prosecution case is that the appellant Damodar Sahu filed a suit in the Additional Munsif's Court, Puri, praying for specific performance of a contract entered, into by one Aparti Sahu for the sale of a piece of homestead land measuring 0.48 acres along with some other lands to him for a consideration of Rs. 250/- and who received Rs. 200/- towards the consideration and executed an agreement to sell on 6-9-1946.

Aparti, however, did not execute the kabala and sold the land to one Lokanath Sahu (P. W. 5) by Ext. 11 dated 27-10-1946. Lokanath in his turn sold it to one Krishna Sahu. Damodar made Aparti, Lokanath and Krishna defendants to the civil suit O S. No. 101/47.

Aparti filed a written statement denying the alleged contract and he specifically denied the execution of the agreement dated 6-9-1946, and stated that the thumb impression appearing on the said document purporting to be his, was not actually his thumb impression. The two appellants examined! themselves as witnesses in support of the case of appellant 1, The appellant 2 proved his signature on the agreement as he was an attesting witness.

Both of them categorically stated in their evidence that Aparti had put his thumb marks on the agreement in their presence. The defendant Aparti denied his thumb impression and prayed to the Court for sending the thumb marks with his specimen thumb marks for comparison by the Government Finger-print Expert.

This was done and the Finger-print Expert gave his opinion to the effect that the disputed thumb marks did not tally with the specimen thumb marks of Aparti. The Court came to the conclusion that Aparti did not put his thumb marks on the agreement which had been marked as Ext. 1 in the civil suit. Accordingly the suit was dismissed. The court thereupon held an enquiry under Section 476, Criminal P. C., at the instance of Aparti, and after holding a preliminary enquiry lodged a complaint for the prosecution of the appellants on charges under Sections 467, 467/109, 471, .193 and 209, I.P.C.

The appellants were committed to the Court of Sessions for trial for those offences in due course.

3. At the trial, the appellants did not challenge the fact that the agreement which was actually filed in the civil suit was forged, but their case was that when Aparti failed to execute the sale-deed, the grand-father of Damodar, appellant 1, came to Puri and handed over the agreement to Padmanav Das, a Mohurir of Rai Bahadur Lokanath Misra, an advocate of Puri, for the purpose of filing a suit against Aparti.

Aparti aporoached appellant 1 for a settlement, but appellant 1 declined to enter into a compromise as the agreement had already been made over to Padmanav Das for the purpose of filing a suit. Some time later, appellant 1 came to Puri and wanted Pudmanav to file a suit, but as Padmanav declined to file it, he took back the agreement (which has been marked Ext. 14 in the present case) from Padmanav and approached another Mohurir Sushil Chandra Ghosal, and he filed the civil suit through the help of this Mohurir.

The appellant 1 suggests that Aparti somehow got hold of Padmanav and took back the original agreement which he had executed in favour of appellant 1 and replaced it by a forged agreement which had been scribed by one Hadibandhu Das who was the scribe of the original agreement also. The appellants genuinely believed that this was the original agreement which Aparti had executed in favour of appellant 1, and in that belief they prosecuted the civil suit.

They had no knowledge that Aparti had got the original agreement substituted by the forged agreement. The appellant 2 took the defence that he had undoubtedly attested the original agreement, and when he proved his signature on the disputed agreement in the civil suit, ho did not very much scrutinise his signature as there was no occasion for suspicion that any foul play had been committed by Aparti.

Therefore, his case was that he did not intentionally depose falsely in the case. He was labouring under the impression that this was the original agreement which Aparti had executed in favour of Damodar.

4. The learned Assistant Sessions Judge after a review of the entire evidence on record has come to the conclusion that the explanation offered by the appellants had not been established, and that although there was no direct evidence to prove that the document had actually, been forged by appellant 1, the evidence justified the conclusion that both the appellants abetted the commission of the offence of forgery, and as such were guilty under Section 467/109, I. P. C.

He has further come to the conclusion that appellant 1 was guilty of the offence of using a forged document as genuine knowing or having reason to believe that it was forged, and as such was guilty under Section 471/467, I. P. C. The appellant 1 was also found guilty under Section 209, I. P. C., for having fraudulently and dishonestly laid a false claim knowing that it was false with the intention to injure Aparti, and as such was guilty under Section 209, I. P. C. Both the appellants were further guilty under Section 193, I. P. C., for having given fake evidence in a judicial proceeding.

The appellants have been ordered to undergo various terms of imprisonment under the different sections as suited in the beginning of this judgment.

5. Mr. D. Sahu, the learned counsel for the appellants has not only challenged the findings of fact, but has raised certain questions of law. I propose first to deal with the questions of law raised by Mr. Sahu.' His first contention is that appellant 1 having been found not guilty under Section 407, I.P.C., his conviction under Section 467/109, 1. P. C., is illegal inasmuch as no charge under Section 109 was framed against appellant 1.

Mr. Sahu has referred to the following cases in support of his contention: -- Seeni Asan Usan v. Sethu Ram Chetty, 33 Mad 264 (A); -- V. Krishnan Nair, In re, 13 Cri LJ 22(3 (Mad) (13); -- Emperor v. Profulla Kumar, AIR 1923 Cal 453 (C); --Mt. Sheoratni v. Emperor, AIR 1920 Pat 512 (D); -- Durban Choudhury v. Emperor, 23 Cri LJ 311 (Pat) (E);' -- Muthukanakka Pillai v. Emperor, AIR 1922 Mad 110 (F); -- Kmperor v. Raghya Nagya, AIR 1924 Rom 432 (G); -- Hulas Chand. v. Emperor, AIR 1927 Cal G3 (II); -- Mahabir Prasad v. Emperor, AIR 1927 All 35 (I); -- Ratna Reddi v. Emperor, 1932 Mad WN 1216 (J); -- Boni Hampana Gowd v. Emperor, AIR 1936 Mad 28O (K); -- Ponnuswami Scrvai v. Emperor, AIR 1938 Mad 315 (L).

He has also very fairly drawn our attention to certain other cases which have taken - a contrary view. They are -- A. V. Joseph v. Emperor, AIR 1925 Rang 122 (M); -- Punamchand Amarchand v. Emperor, AIR 1990 Nag 145 (N): -- V. Subbayya v. Emperor, 13 Cri LJ 453 (Mad) (O); -- Syamo Malia Patro v. Emperor, AIR 1932 Mad 391 (FB) (P); -- Mt. Pathani v. Emperor, AIR 1934 Lah 673 (Q); -- Suraj Bhan v. Emperor, ATR 1935 Pesh 67 (R); -- Kher Shigh v. Emperor, AIR 1920 Lah 15 (S) and -- S. P. Ghosh v. Kmperor, AIR 1915 Low Bur 39 (T).

6. A review of the authorities on the point shows that it cannot be laid down as an inflexible rule that a conviction for abetment cannot be made in a case where the accused is charged with the main offence only, and no separate charge has been framed under Section 109, I, P. C. If the accused had notice of the facts, which constituted abetment, although the charge was one for the main offence and if there has been no prejudice to the accused by the omission to frame a separate charge for abetment, he can be convicted for abetment even though the charge for the main offence fails.

It was held by their Lordships of the Judicial Committee in the case of --- 'Bega v. The King Emperor, AIR 1923 PC 130 (U) that where the charge under Section 302, I. P. C. fails against some of the accused persons, they can be convicted under Section 201, Penal Code, for causing the disappearance of evidence without a separate charge being made against them under Section 201, I. P. C.

Their Lordships pointed out that such a conviction was warranted by Section 237, Criminal P. C. It is no doubt true that under Section 233, Criminal P. C., there should be a separate charge for every distinct offence, but Sections 234 to 239 make provision for some exceptions in which this general rule should not be insisted upon. Sections 236 and 237, Criminal P. C., make it clear that in cases where there is a doubt as to what offence the accused has committed on the facts alleged, the accused may be charged with having committed all or any of such offences, and Section 237 says that in such a case if it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Section 236, he may be convicted of the offence which he is shown to have committed although he was not charged with it.

Therefore, their Lordships of the Judicial Committee pointed out that the test is whether the accused had notice of the facts alleged against him which constituted the offence, and whether the failure to frame a separate charge had caused any prejudice. Once the Court is satisfied that the accused had notice of all the necessary ingredients of the offence, and that he has suffered no prejudice on account of the failure to frame a separate charge, there is no bar to his conviction under a particular section although he may not have been formally charged under that section.

In a Full Bench decision of the Madras High Court in AIR 1932 Mad 391 (FB) (P), it was held that an accused person charged with the main offence of murder can be convicted of abetment of murder even though he is not separately charged, and reliance was placed upon the case -- Begu v. Emperor (U).

In the case of -- The Provincial Govt., C. P. and Berar v. Saidu, AIR 1947 Nag 113 (V), their Lordships have held that there is no bar in law to convict a person of abetment without, a distinct charge, if the circumstances bring the case under Section 237, Criminal P. C. and reliance was placed upon the case -- Begu v. King Emperor (U), which seems to be the leading case now on the subject.

The same view was accepted in the case of -- Jananada Charan v. Emperor, AIR 1929 Cal 807 (W), wherein it was pointed out that a conviction for abetment, although it is not charged, is lawful not by reason of Section 238, but by reason of Section 237, Criminal P. C. In that case Suhrawardy and. Jack, JJ. carefully examined all the cases, and came to the conclusion that each case must be considered upon its own merits, and it cannot be laid down as a general proposition that in no case there can be conviction for abetment without a charge.

If the facts justify the conviction for abetment though the person was charged with the commission of the offence itself, there is no bar in law to such conviction.

The Patna High Court has also adopted the same view in the case of -- Hira Sah v. Emperor, AIR 1947 Pat 350 (X). Therefore, it cannot be said that the conviction for abetment in this case is illegal simply because there was no separate charge against appellant 1 for that offence. We have to see if he had notice of all the facts which constitute the offence of abetment and whether he had suffered any prejudice for want of a formal charge under Section 109, I.P.C.

Applying this test, I am of opinion that appellant 1 had notice of all the necessary facts constituting the offence of abetment. It was the prosecution case that the document had been forged, and it was appellant 1 who based his claim upon the forged document. There was a charge against appellant 1 under Section 471, I.P.C., and, therefore, he had notice of the fact that he knew or had reasons to believe that the document was forged.

Under the circumstances it must be held that either he himself forged the document or got it forged with the help of others. He had notice of all the necessary facts, and, therefore, there has been no prejudice to him. Under the circumstances, the conviction under Section 467/109, I. P. C. is perfectly legal. So far as appellant 2 is concerned, there was a charge under Section 467/109. Mr. Sahu contends that in that charge it was stated that he had abetted appellant 1 in forging the document, and as appellant 1 had been acquitted of the main charge under Section 467, appellant 2, cannot be convicted for abetment.

The charge under Section 467/109, I. P. C. against the appellant 2 runs as follows:

'That you, on or about the 6th day of September 1946 at Odaguan, P. S. Nimapara, abetted the forgery of an agreement for sale of land in an alleged advance of Rs. 200/- (M. O. 1) by Damodar Sahu by signing the said forged document as an attesting witness and thereby committed ah offence punishable under Section 467/109, I. P. C., and within the cognizance of the Court of Session.'

It will thus appear from the wording of the charge that it is simply stated therein that appellant 2 abetted the forgery of an agreement for sale of lands in an alleged advance by Damodar Sahu by signing the said forged document. The emphasis, in my opinion, was on the signing by the witness of the alleged forged document as an attesting witness. The failure of the main charge against Damodar Sahu; has, in my opinion, not prejudiced appellant 2 in any way.

The appellant 1 was no doubt mainly responsible for getting the document forged, but appellant 2 lent his assistance to Damodar in this matter by signing the document as an attesting witness. All the ingredients were mentioned in the charge and appellant 2 had notice of the necessary facts and has suffered no prejudice. Therefore, in my opinion, there is no substance in the point of law raised by Mr. Sahu.

7. The next point of law raised by Mr. Sahuis that the learned Assistant Sessions judge erredin law in admitting the judgment of the civil Courtas evidence in the present case, and for this proposition he relied upon a decision in -- 'Gogun Chunder v. The Empress, 6 Cal 247 (Y). In that casetheir Lordships held that technically the judgmentin the civil suit was inadmissible, because it wasnot between the same parties. In the civil suit theaccused was the plaintiff and the defendants werecertain persons who were prosecution witnesses inthe criminal case, whereas in the criminal case theparties were the Queen Empress on the one handand the accused on the other, and moreover, theirLordships pointed out that the issues in the civiland the criminal cases were not identical and theburden of proof rested in each case on differentshoulders.

An examination of that case shows that in the charge to the Jury the learned Judge had referred to the fact that the Munsif had believed a particular set of witnesses, Their Lordships pointed out that this was improper. The learned Judge ought to have told the Jury that the Munsif's opinion was not evidence in the criminal case. Their Lordships therefore examined the other evidence in the case discarding the Munsif's finding and came to the conclusion that the prosecution had not established the case.

In the present case, however, the learned Assistant Sessions Judge has not at all been influenced by the findings of the learned Munsif. The judgment in the civil suit has simply been used for the purpose of showing that the civil suit was dismissed on a finding that the agreement was forged. The learned Judge in the present case has examined the evidence adduced in this case independently and came to the finding that the document was forged.

Therefore, I am of opinion that the learned Judge has not committed any illegality on this point.

8. Another point of law urged by Mr. Sahu is that the joint trial of appellants 1 and 2 for offences under Section 193, I. P. C., is illegal and for this purpose he relies upon a decision of the Madras High Court in -- Kotha Subba Chetty v. The Queen, 6 Mad 252 (Z). That was a decision under Section 283, Criminal P. C., 1872. The Code of 1898 contains Section 239 which provides that the following persons may be charged and tried together: '(a) persons accused of the same offence committed in course of the same transaction.'

So far as the decision in 6 Mad 252 (Z) is concerned, with great respect we do not agree with the view of their Lordships that the joint trial was illegal. The present case, however, is directly covered by Clause (a) of Section 239, Criminal P. C., quoted above. The appellants f and 2 committed the offence of giving false evidence in the same judicial proceeding to support the false case set up by appellant 1. Therefore the offences were committed in course of the same transaction and their joint trial was perfectly legal.

9. I now proceed to discuss the evidence in the case in order to find out if the prosecution has been able to establish the charges for which the appellants have been convicted. I have already stated that the accused do not dispute the fact that the agreement, Ext. 14 is a forged document. As the forged character of the document is not challenged, we have only to see whether appellants 1 and 2 abetted the forgery.

The appellant 1 based his claim in the civil suit on this document. The appellant 2 proved his signature in the document to be his signature as it appears from his deposition Ext. 4. His present, explanation is that as his alleged signature on the agreement appeared to be his own signature and as the agreement had been written by Hadu Das P, W. 1 who was admittedly the scribe of the original agreement, he said in the Munsif's Court that the signature on the agreement was his own signature.

The appellant l's explanation is that his grandfather had left the document with Padmanav Das, a pleader's clerk at Puri, for filing a suit and later on when appellant 1 came to Puri and Padmanav refused to file the suit he took back the agreement and filed the suit with the help of another pleader's Mohurir Sushil Chandra Ghoshal. I shall presently show that these explanations cannot be accepted; but before doing that I propose to examine the evidence adduced on behalf of the prosecution to prove the case against the appellants. (His Lordship examined the evidence adduced on behalf of the prosecution and on behalf of the defence and proceeded).

10-13. On a consideration of the entire evidence, I am satisfied that the learned Assistant Sessions Judge is right in holding that the appellants are guilty of the offences for which they have been convicted. The appellant 1 having been found guilty under Section 467/109, I. P. C., must be held to be guilty under Section 471, I. P. C. I have already pointed out the circumstances from which it should be inferred that he had reasons to believe that the document was a forged one, and he used the document as genuine knowing that it was forged.

Therefore, he has been rightly convicted under Section 471, I. P. C. also. The conviction under Section 193, I. P. C., of both the appellants is also correct, because both of them gave false evidence in a judicial proceeding knowing, that it was false.

14. For the reasons stated above, the convictions and sentences of the appellants arc confirmed, and the appeal is dismissed.

Panigrahi, C.J.

15. I agree.


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