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Bhaluka Behera and ors. Vs. the State - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 123 of 1955
Reported inAIR1957Ori172; 23(1957)CLT234; 1957CriLJ902
ActsEvidence Act, 1872 - Sections 30, 45 and 133; Code of Criminal Procedure (CrPC) , 1898 - Sections 342, 342A and 367; Constitution of India - Article 20(3)
AppellantBhaluka Behera and ors.
RespondentThe State
Appellant AdvocateN.C. Mohanty, Adv.
Respondent AdvocateG.B. Mohanty, Adv.
DispositionAppeal dismissed
Cases ReferredRajamuthukoil Pillai v. Periasami Nadar
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....mohapatra, j. 1. this criminal appeal has been filed by the three appellants against the judgment dated 24-9-1955 of shri b. k. das, assistant sessions judge of mayurbhanj wherein appellant bhaluka has been convicted under section 467 of the i. p. c. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of rs. 100/- in default to undergo rigorous imprisonment for three months more. he has also been convicted under section 82(c) of the indian registration act and sentenced to undergo rigorous imprisonment for two years the sentences to run concurrently. appellant kalichasan stands convicted under section 82(d) of the indian registration act and has been sentenced to undergo rigorous imprisonment for two years. appellant madhusudan has been convicted under section.....

Mohapatra, J.

1. This criminal appeal has been filed by the three appellants against the judgment dated 24-9-1955 of Shri B. K. Das, Assistant Sessions Judge of Mayurbhanj wherein appellant Bhaluka has been convicted under Section 467 of the I. P. C. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for three months more. He has also been convicted under Section 82(c) of the Indian Registration Act and sentenced to undergo rigorous imprisonment for two years the sentences to run concurrently. Appellant Kalichasan stands convicted under Section 82(d) of the Indian Registration Act and has been sentenced to undergo rigorous imprisonment for two years. Appellant Madhusudan has been convicted under Section 474 of the I. P. C. and sentenced' to undergo rigorous imprisonment for five years and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for three months more. The offences have been committed in respect of a sale deed (Ex. 14(4) ) dated 11-12-53 which purports to have been executed by one Chandramohan Behera in favour of appellant Madhusudan. This Chandramohan was ailing for a long time and in fact he died on 15-12-53, four days after the execution and registration of the document. The property stands recorded in the name of Chandramohan. (see Ex. 26). The prosecution case is that appellant Bhaluka fasely personated himself as Chandramohan and put his thumb Impression in evidence of the execution of the document and also personated himself as Chandramohan before the Sub-Registrar at the time of registration of the document. He put his thumb Impression also at the time of admitting the execution before the Sub-Registrar. Kalicharan is the identifier of Bhaluka as Chandramohan at the time of registration of the document. The document is in favour of appellant Madhusudan as the vendee and the prosecution case is that in fact it is Madhusudan who is responsible for the entire machination for getting this forged document, evidently before the death of the real owner Chandramohan, with the dishonest intention of acquiring his properties. Madhusudan got possession of the Kabala after registration and started a case for mutation of his own name in place of Chandramohan on 5-1-54. Notice was taken out as against the widow of Chandramohan (P. W. 1) but Madhusudan fraudulently suppressed the due publication of the processes. In the meantime the Choukidar of the village (P. W. 2) could get information about the mutation case and on enquiry he ascertained from the widow of Madhusudan that her husband had never executed the sale deed (Ex 14(4) ). The widow (P. W. 1) thus having been informed of the mutation case appeared through a lawyer and prayed for time to file objection. The case was thereafter adjourned to 10-2-54. Madhusudan immediately realising the complications persuaded the widow (P. W. 1). to settle the matter; but as the matter was not immediately settled the widow lodged the First information Report (Ex 1) on 8-2-54. But eventually the mutation case was compromised by P. W. 1 and appellant Madhusudan and it was dismissed for non-prosecution. Thereafter Madhusudan wanted to take back the document filed in the mutation case. The entire records were, however, seized by the investigating officer and the thumb-impressions of appellant Bhaluka. the signature and thumb impression of appellant Kalicharan and the signature of Madhusudan were taken before the Magistrate (P. W. 13) and were sent to two experts, P. W. 18 being the Hand Writing expert and P. W. ID being the Fingerprint expert. According to the experts, the specimen thumb impressions of Bhaluka and Kalicharan taken before the Magistrate (P. W. 13) are identical with the thumb impressions appearing on the document, Ex. 14(4). It is to be noted that on 10-2-1954 appellants Kalicharan and Madhusudan. were produced for making confessional statements before the Magistrate (P. W. 13) who recorded the statements of these two appellants under Section 164 of the Cr. p. C. The accused persons, however, pleaded not guilty in the trial. The learned Assistant Sessions Judge has found that on 11-12-1953 Chandramohan was in a dying condition and was not capable of going to the registration office, that in fact, it was Bhaluka who falsely personated himself as Chandramohan and Kalicharan falsely identified Shaluka as Chandramohan before the Sub-Registrar, and that the vendee was responsible for tin's forgery and was in possession of the document with the intention of using the forged document as a genuine one. He. therefore, convicted the three appellants as stated above.

2. The learned Advocate appearing on behalf of the appellants has taken up the first point regarding Madhusudan that the conviction under Section 474 of the Indian Penal Code is bound to fail, there being no direct and substantive evidence that he was in possession of the document. This argument he advanced on the assumption that even if the document be hold to be a forged one, appellant Madhusudan cannot be convicted under Section 474 I. P. C. on account of this lacuna in the prosecution. Indeed, the Advocate who had filed the mutation case on behalf of Madhusudan does not say that Madhusudan filed the document in court and further it does not appear from the records of the Sub-Registrar's office that Madhusudan took a return of the registered document.

3. The circumstances transpiring in the present case appear to be conclusive regarding his possession. Appellant Madhusudan has been described as the vendee in the document Ex. 14(4). The mutation case was filed in the name of Madhusudan in Place of the recorded tenant Chandramohan. There was an attempt for fraudulent suppression of the processes, which has been found by the learned Assistant Sessions Judge for the reasons that P. Ws. 8 and 12 who purported to be the witnesses to the service of the processes denied in Court the publication of the processes in their presence. It transpires from the positive evidence of the widow (P. W. 1) that Madhusudan and the widow compromised the mutation case. It also appears from the evidence of the two lawyers representing each of the parties that the compromise petition signed by both Madhusudan and the widow was filed on the basis of which the mutation case was dismissed for default. Madhusudan further made an attempt to take back the document; but, nevertheless, the entire records were seized by the investigating officer; These circumstances are weightv enough to load to the conclusion that it was Madhusudan who was in possession of the forged document. There is yet another item of evidence which is important, that is, the confessional statement made toy Madhusudan himself before the Magistrate (P. W. 13) who recorded it under Section 164 of the Cr. P. C. The Magistrate gave him sufficient time for reflection, gave him the caution that he was the magistrate and that the accused was not bound to make any statement before him and that if he made any incriminating statement it might be used against him. He had put several other questions to test that the statement was voluntary. The learned Assistant Sessions Judge has found that in fact the confessional statement recorded under Section 164 Cr. P. C. was voluntary and true. There Madhusudan confessed the fact that Bhaluka gave the thumb impression as that of Chandramohan and falsely personated himself as Chandramohan. Madhusudan paid the fee of Rs. 5./10/-. He was present all along during the execution and registration of the document. Kalicharan also falsely identified Bhaluka as Chandramohan. He further stated that after receiving the 'CHECK' he returned home along with Kalicharan. After this evidence on record we may refer to the statements of Madhusudan both before the committing Magistrate's Court and before the Assistant Sessions Judge that in fact he had filed the document in Court in the mutation case. His statements before the committing Magistrate's Court and the Sessions Court are taken into consideration bv us to strengthen our view and to lend assurance to it which is based upon sufficient other evidence on record as narrated above. We, therefore, find that in fact Madhusudan was in possession of the document with the intention of using it as a genuine one.

4. But the more important question is whether the document has been proved to be a forged one, that is to say, whether in fact Bhaluka had falsely personated himself as Chandramohan in executing and registering the document and put his thumb impression on the document which purports to be that of Chandramohan Here, the main evidence is that of the expert (P. W. 19). It was contended before the learned Assistant Sessions Judge on the basis of a decision of the Patna High Court in the case reported in Bazari Hajim v. King Emperor ILR 1 Pat 242: (AIR 1922 Pat 73) (A.) that the conviction cannot be based purely on the opinion of the expert. The learned Assistant Sessions Judge, therefore, finds that the opinion of the expert is corroborated by the confessional statements of the two co-accused persons. He had made use of the confessions of the two co-accused persons Kalicharan and Madhusudan practically as substantive evidence. In our opinion, he is not correct in his view. It has been settled by very high authorities that the confession of a co-accused cannot be used as the basis for conviction on account of the position that it is not strictly evidence and further on account of the reason that the confession was not tested by cross-examination and the co-accused persons were not examined as witnesses. We feel it necessary to clarify the position by reference to a few leading authorities on the point, in the case of Bhuboni Sahu v. The King, reported in AIR 1949 PC 257 (B) their Lordships of the Privy Council observed as follows:

'Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in Section 3. Evidence Act. it is not required to be given on oath, nor in the presence of the accused and it cannot be tested by crops-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt makes it evidence on which the Court may act; but the section does not sav that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct.'

The position was elaborated further for being more practical guidance to the Judiciary in India in the leading judgment of Justice Bose of the Supreme Court in the case Kashmira Singh v. State of Madhya Pradesh reported in AIR 1952 SC 159 (C):

'The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on It. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to tend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.'

It is clear, therefore, from this psycho-analysis of the process to be observed that other independent evidence must be weighed first. If it is rejected the confession of a co-accused is of no avail at all. If the court accepts it but nevertheless he is still hovering and is in search of his view being strengthened and assured he is to take into consideration the confession of a co-accused only for the purpose of leading assurance to his view regarding the other independent evidence on record implicating the accused with the guilt. It has a'so been made clear that indeed if in spite of this confession there is other sufficient evidence on which the conviction can sai'ely be based and the Judge is in a position to make up his conclusion then it is not necessary to refer to the confession Of the co-accused. After this decision of the Supreme Court the position came up again for examination by the Bombay High Court in the case L. S. Raju v. State of Mysore reported in AIR 1953 Bom 297 (D). The leading judgment was of Justice Chagla. He observed as follows:

'The confession of an accused is undoubtedly a very strong piece of evidence against the accused himself, provided it is voluntary and the Court is satisfied that it is true. But it is a weak piece of evidence as against the co-accused and the reasons for it are obvious. It is not evidence in the legal sense of the term.

XX XX XXThe Courts have gone so far. as we shall presently point out as to lay down that there must be sufficient evidence independently of the confession which would warrant a conviction of the accused. It is only when there is such evidence that the Court may proceed further and look at the confession of the co-accused and consider it as additional evidence that would further weigh the balance against the accused. Therefore. the mental approach which has been emphasised by the Court should be to ignore the confession of the co-accused in the first instance, marshal the evidence led against the accused independently of the confession, make up its mind whether that evidence is sufficient in law to warrant a conviction, and after it has made up its mind then to consider the confession of the co-accused.'

With the highest respect for the Chief Justice Chagla I may observe that the proposition laid down is not strictly in accordance with the dictum laid down by the Supreme Court. If the Court is able to make up his mind on the basis of other evidence which according to him is sufficient to warrant a conviction; then, in my view, it is unnecessary to refer to the confession of the co-accused, and the words 'may take into consideration appearing in Section 30 of the Indian Evidence Act are not properly construed.

5. But this is not sufficient to disturb the conclusion arrived at by the learned Assistant Sessions Judge that Bhaluka had personated himself and given his thumb impressions; in the document in question at the time of execution and registration before the Sub-Registrar. There is no dispute over the position of law that simply because there is the opinion of the Finger-print expert the Court is not bound to accept it and base the conviction of the appellant on it. It is a very weighty piece of evidence but nevertheless the Court is to consider its weight and is free either to accept or reject it on a thorough discussion and giving sufficient reasons. The Court cannot delegate his own function to find a person guilty or not guilty to the expert. He cannot convict simply because the expert says that the man is guilty. The true guidance is received from the judgment of Beaumont, C. J. in the case Fakir Mahomed v. Emperor reported in AIR 1936 Bom 151 (E).

'The Court, in a case of this sort, has to rely on the expert upon two distinct points, first of all, on the question of similarity between the marks, which is a question of fact on which the Court can, and should, with the assistance of the expert satisfy itself: and secondly on the point, which is one for expert opinion, whether it is possible to find the finger-prints or thumb impressions of two individuals corresponding in as many points of resemblance as are shown to exist between the impressions found in the case before the Court and those of the accused'.

The Court should examine the expert as to how much experience he had had in the way of comparison of finger-prints and as to how much literature on the subject he had studied.

6. I will now refer to the decision of Das and Bucknill JJ. in the case reported in ILR 1 pat 242: (AIR 1922 Pat 73) (A). That was also a case under Section 82(c) and 82(d) of the Indian Registration Act. Bucknill, J. observed:

'I think that, apart from the fact that I should be rather sorry without any other corroborative circumstances to convict a person of a serious crime solely and entirely upon similarity of thumb marks or finger-prints, the very fact of taking of a thumb impression from an accused person for the purpose of possible manufacture of the evidence by which he could be incriminated is in itself sufficient to warrant one in setting aside the conviction upon the understanding and upon the assumption that such was not really a fair trial. The learned Judge was swayed away by the English principles that the accused cannot be compelled to supply incriminating evidence against himself. This point we will discuss later. But it is sufficient to observe here that the observation regarding the finger-print was. rather too general. Das, J. had added a separate note, wherein he discussed the balance of the evidence, and in his opinion, it was entirely in favour of the appellants, the accused persons. That influenced Das, J. to make an observation that it was dangerous to convict the appellants on the sole testimony of the Finger-print expert, in a later decision the Court did not stick to the same view. Sir Jwala Prasad and Macpherson, JJ. in the case Basgit Singh v. Emperor reported in AIR 1928 Pat 129 (F) made a more careful approach to the position. Jwala Prasad, J. in his judgment observed: 'As to the probative value of the opinion of an expert on finger-prints, it must have the same value as the opinion of any other expert, such as a medical officer, etc. In each case the evidence is only a guide to the Court to direct its attention to judge of its value. The Court is at liberty to use its own discretion and to come to a conclusion either in affirmance or differing from the view taken by the expert. In this view, it may be said, as has been held repeatedly in a number of cases, that it is not safe to convict an accused upon the sole testimony of an expert.'

But the final conclusion in his Lordship's view Is that the Court cannot refuse to convict a person on the evidence of a Finger-print expert, merely on the ground that it is unsafe to base a conviction upon such evidence. If the finger-prints are clear enough, the Court must verify the evidence of the expert by examining them with a magnifying glass, if necessary, and applying its own mind to the similarities and dissimilarities afforded by the finger-prints, before coming to a conclusion one way or the other. This decision seems to be more in conformity with the rule laid down by the Chief Justice Beaumont. In our view, the direction given in the judgment of the Chief Justice Beaumont referred to above, is a correct and safe guide in matters of this nature and we respectfully follow.

7. In the instant case, the learned Assistant Sessions Judge has not delegated the duties to the expert of finger prints. He has not based the conviction simply because the expert says that thefinger prints are identical but on the contrary, on an elaborate, thorough and detailed discussion of the evidence of the expert (P. W. 19), he has agreed with the opinion of the expert, it appears from the judgment that he had also examined the specimen finger prints and the disputed finger-prints. We have gone through carefully the evidence of the Pinger-print expert (P. W. 19) and find that he has given very cogent and convincing reasons to come to his opinion. I have also examined the finger-prints with a magnifying .glass and agree with the learned Assistant Sessions Judge. The science has developed to a stage of exactitude. But the main thing to be scrutinised is whether the expert's examination is thorough, complete and scientific. The learned Assistant Sessions Judge's approach is in accordance with this direction and we. therefore, find it absolutely safe to convict the accused persons Bhaluka and Kalicharan on the proof of the identity of thumb impressions on the specimen papers and the disputed ones appearing on the document Ex. 14(4).

8. One more point requires clarification in this case. The point arises on account of the provisions of Article 20(3) of the Constitution which runs as follows:

'20(3).--No person accused of any offence shall be compelled to be a witness against himself.'

In the present case, the thumb impressions and signatures of the accused persons were taken on 23rd March when already they were in the roll of the accused. The position arises whether taking of thumb, impressions of the accused persons is covered by the guarantee contained in Article 20(3). The language used there is that the accused shall not be compelled to be a witness against himself. The exact meaning of the term to be a witness against himself came up before their Lordships of the Supreme Court to ho clarified and the limits defined in the case of M. P. Sharma v. Satish Chandra. reported in AIR 1954 SC 300 (G). ArtiClause 20(3) undoubtedly embodies the principle of protection against compulsory self incrimination which is one of the fundamental canons of the British system of criminal jurisprudence followed both in England and America. It was also lecog-nised by many of our Indian Judges. But, nevertheless, it has now been codified as one of the fundamental rights in Article 20(3). The case before their Lordships was one in respect of search and seizure. Primarily their Lordships had to consider whether the provision laid down in the Cr. P. C. for search and seizure of articles and documents in oossession of the accused violates the guarantee in Article 20(3). On this primary question, however their Lordships observed that the provisions of search and seizure were not hit on the basis of the reason that a notice to produce is addressed to the partv concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3). But a search warrant is addressed to an officer of the Government generally a Police officer. Neither the search nor the seizure are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense. But, their Lordships have made it very clear in observing at paragraph 10 of the Judgment by Jagannadhadas J. :

'Broadly stated the guarantee in Article 20(3) is against 'testimonial compulsion'. It is suggested that this is confined to the oral evidence of a person, standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and. to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is 'to be a witness'. A person can 'be a witness' not merely by giving oral evidence but also by producing documents or taking intelligible gestures as in the case of a dumb witness (see Section 119, Evidence Act) or the like. 'To be a witness' is nothing more than 'to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.'

Properly understood, this decision defines the limits of the term 'to be a witness' to mean even in all cases where the accused is compelled to furnish anv material which may be used against him for the purpose of convicting him. It appears clear, therefore, if the accused is forced to give his thumb impression he can take protection under the guarantee bestowed upon him in the provisions of Article 20(3). Rajamannar, C. J. and Rajagopala Ayyan-gar J. in the case Swarnalingam v Assistant Labour Inspector reported in (S) AIR 1956 Mad 165 (H) followed the decisions on the plain meaning that the guarantee under Article 20(3) would extend to compulsory process for production of evidentiary documents which are reasonably likely to support the prosecution against the accused. The case of finger prints came up before a Single Judge of the Madras High Court in the case Rajamuthukoil Pillai v. Periasami Nadar reported in AIR 1956 Mad 632 (I). There the accused was directed to give his thumb impression. The accused objected to it but the trial court rejected the objection of the accused relying on Section 73 of the Indian Evidence Act and directed him to give his thumb impression. Somasudaram, J. relying on the aforesaid Supreme Court decision allowed the objection of the accused observing that the direction asking the accused to give his thumb impression would amount to asking him to furnish evidence which is prohibited under Article 20(3). The accused, therefore, cannot be compelled to give his thumb impression as directed by the magistrate. But, it is to be made clear also that the process issued against the accused must be a compulsory process or the accused must be compelled to give his thumb impression when only he can invoke the guarantee under Article 20(3). If he himself submits to give his thumb impression or if he has raised no objection whatsoever at any stage to give his thumb impression, he cannot seek the aid of the guarantee. This is made clear even in the judgment of the Supreme Court discussed above in the later part of paragraph 10:

'Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the nagative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room.'

They have given a very wide interpretation of the word 'testimonial compulsion' and have explained that every positive volitional act which furnishes evidence is testimony. But, nevertheless, they have also made it clear' that the element of coercion is essential for invoking the guarantee. The accused in this case is not entitled to this guarantee on account of this important distinguishing feature. There is nothing to indicate that in fact, the accused persons were compelled to give their signatures and thumb impressions, in this respect, we have the evidence of the two witnesses, P. W. 13. the magistrate in whose presence the thumb impressions and signatures were taken and who has also attested to that effect and the other witness is the investigating officer (P. W. 22). He (P. W. 13) simply deposes to the effect that the signatures and the thumb impressions were taken in his presence. He was also the magistrate who recorded the confessional statement of the two accused persons, and was cross-examined on that point. But on the point that thumb impressions and specimen signatures were also taken in his presence, there was no cross-examination at all. p. W. 22 says:

'I forwarded the questioned documents with specimen thumb marks and signature taken in presence of Shri Section B. Mohapatra at my instance to the Hand-writing and Finger-print experts.'

He too was not cross-examined on the point. There was no suggestion whatsoever to the effect that any element of coercion or compulsion was resorted to. As it appears, the accused persons had submitted without raising any objection whatsoever. There is nothing to indicate that in fact, the Sub-divisional Magistrate even gave a direction to the accused persons to give their thumb impressions end signatures.

If the accused persons had raised objection at the time when they were asked to give their thumb impressions or signatures and in spite of it if the thumb impressions and signatures were taken, it would be in contravention of the guarantee conferred under Article 20(3) as interpreted by their Lordships of the Supreme Court and the incriminating documents would be discarded. But, in the present case, as We have discussed above, the prosecution is not hit by this provision as there was no element of coercion or compulsion and there was no objection raised by the accused persons. In conclusion, therefore, the convictions and sentences of the three appellants are upheld and the appeal fails and is dismissed.

Das, J.

9. I agree.

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