1. The first appellant - Sekander Sheikh - was charged in a trial heldbefore the Additional Sessions Judge, Murshidabad, in the State of West Bengal,for the offences of forging a valuable security punishable under s. 467 I.P.Code and of falsely personating another in such assumed character andpresenting a document for registration punishable under s. 82(c) of IndianRegistration Act. The second appellant - Hasibuddin Sheikh - was charged withabetment of these offences. The trial for the offences of forging a valuablesecurity and abetment thereof was held by the Sessions Judge sitting with ajury and for the offences under the Registration Act without a Jury. The jurybrought in a verdict of guilty by a majority of 4 to 3 against the appellantsfor the offences of forging a valuable security and abetment thereof, but theJudge did not accept the verdict and made a reference under s. 307 of the Codeof Criminal Procedure to the High Court of Calcutta, because in his view therewas 'absolutely no reliable evidence' against the two appellants in respect ofthe offences of forging a valuable security and that it was in the interests ofjustice to refer the case to the High Court. The Sessions Judge acquitted thetwo appellants of offences under the Indian Registration Act. The High Courtdeclined to accept the reference and convicted the two appellants respectivelyof the offences punishable under s. 467 and s. 467 read with s. 109 of theIndian Penal Code, and sentenced each appellant to suffer rigorous imprisonmentfor two years. With certificate of fitness granted by the High Court under Art.134(1)(c) the appellants have appealed to this Court.
2. The charges against the first appellant were -
(i) that on or about January 15,1958, he had in the town of Berhampore forged a Heba-nama in respect of certainproperty in favour of one Ali Hossain purporting to execute the same in thename of one Kaimuddin of Debkundu and that the execution of the document wasmade with intent to cause the said Kaimuddin to part with his property and tocommit fraud; and
(ii) that on the same day he hadfalsely personated Kaimuddin Sheikh and in that assumed character had presentedfor registration the Heba-nama in the Berhampore sub-registry and had affixedhis thumb impressions claiming to be Kaimuddin Sheikh.
3. The second appellant was charged with charged with abetting the firstappellant in the commission of the two offences by identifying the firstappellant as Kaimuddin Sheikh. At the trial the prosecution examined oneSwarana Kumar Dey who testified that he had engrossed the Heba-nama in favourof Ali Hossain which was executed by the first appellant purporting to do so asKaimuddin Sheikh, that the first appellant had impressed his thumb mark on thedocument before him in token of execution of the Heba-nama that the firstappellant had represented himself to be Kaimuddin Sheikh, and that theexecutant of the document was identified before him as Kaimuddin Sheikh by thesecond appellant Hasibuddin Sheikh. Kaimuddin Sheikh testified that he had notexecuted any Heba-nama in favour of Ali Hossain and that he had not impressedhis thumb-mark on any document in the presence of Swarana Kumar Dey. Acertified copy of the Heba-name was shown to the witness and he denied havingexecuted and presented the original thereof before the Sub-Registrar. Evidencewas also tendered that the thumb impressions of the two appellants were takenby the investigating officer in the presence of a Magistrate and those specimenthumb impressions were compared with the thumb impressions in the register atthe sub-registry at Berhampore by a hand-writing expert and that the thumbimpressions of the first appellant tallied with the thumb impressions in thesaid register and not with the thumb impressions of Kaimuddin Sheikh. In theview of the High Court, this evidence was sufficient to establish against thetwo appellants the offences of forging a valuable security and abetmentthereof.
4. It is now well settled that in a reference under s. 307 of the Code ofCriminal Procedure if the evidence is such that it can properly support averdict of guilty or not guilty, according to the view taken of the evidence bythe trial Court, and if the jury take one view of the evidence and the Judge isof the opinion that they should have taken the other, the view of the jury mustprevail, for they are the judges of fact. In such a case a reference under s.307 of the Code of Criminal Procedure is not justified. But if the High Courtholds that upon the evidence no reasonable body of men could have reached theconclusion arrived at by the jury, the reference will be justified and theverdict of the jury will be disregarded : Ramanugrah Singh v. King Emperor. It appears that the Court of Session was not impressedby the testimony of Swarana Kumar Dey but it was for the jury to assess thevalue of the evidence. The jury had apparently accepted the evidence of SwaranaKumar Dey and of Kaimuddin Sheikh, and it could not be said that no reasonablebody of men could have accepted that evidence.
5. At the trial, evidence about the specimen thumb impressions of theappellants taken during the course of the investigation were relied upon insupport of the prosecution case. This court has held that there is no infringementof Art. 20(3) of the Constitution merely by tendering evidence of thischaracter, in support of the case for the prosecution against a person accusedof an offence : The State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 .The Court in that case set out certain propositions of which the following arematerial -
'(ii) the words 'to be awitness' in Art. 20(3) do not include the giving of thumb impression orimpression of Palm, foot or fingers or specimen writing or exposing a part ofthe body by an accused person for identification;
(iii) 'self-incrimination' meansconveying information based upon the personal knowledge of the giver and doesnot include the mere mechanical process of producing documents in court whichdo no contain any statement of the accused based on his personal knowledge;
(iv) in order to come within theprohibition of Art. 20(3) the testimony must be of such a character that byitself it should have the tendency to incriminate the accused;'
6. In view of this decision, counsel for the appellants fairly conceded thathe could not challenge the admissibility of evidence relating to the taking ofthumb impressions of the first appellant and its use for comparison with thethumb impressions in the sub-registry at Berhampore, made at the time ofpresentation of the document for registration.
7. It was urged, however, that when the Trial Judge acquitted the twoappellants of the offences punishable under s. 82(c) and 82(d) of the IndianRegistration Act - the offence of false personation and in such assumedcharacter presenting a document, and abetment thereof - and that so long as theorder of acquittal was not set aside in an appeal duly presented, the HighCourt in a reference under s. 307 of the Code of Criminal Procedure wasincompetent, relying upon the evidence which was not regarded as reliable inrespect of the offences under the Registration Act, to convict the appellantsof the offences of forging a valuable security and abetment thereof. It wassubmitted that as the offences under s. 467 I.P. Code and s. 82(c) IndianRegistration Act formed part of the same transaction and the case for theprosecution for the former offence was substantially founded on the sameevidence which was not accepted by the trial Court when acquitting theappellants of the latter offence, the High Court could not act upon thatevidence to record an order of conviction on the charge for the offence offorging a valuable security. We are unable to accept this argument. Forging avaluable security and presentation of that valuable security for registrationare two distinct offences. In support of the case that the appellants wereguilty of forging a valuable security the material evidence is that relating tothe making dishonestly or fraudulently of a false document of the nature of avaluable security. That evidence consisted of the instructions given at thetime of writing of the document, the character of the document, its execution,and the intention of the accused in fabricating the document. The offence offalse personation for presenting any document consisted in the presentation ofa document before the registering authority by a person claiming to be some oneelse. An item of evidence may corroborate charges for more offences than one :but acquittal of the accused for one such offences will not render that item ofevidence inadmissible in assessing the criminality of the accused for anotheroffence corroborated thereby. The question in such a case is not one ofadmissibility but of weight to be given to that evidence. The decision of theJudicial Committee of the Privy Council in Malak Khan v. King Emperor (1945)L.R. 72 IndAp 305., negatives the submission of the appellants. In Malak Khan'scase the accused was charged before the Court of Session for offences of murderand robbery. He was acquitted by the Trial Judge of the offence of robbery andconvicted of the offence of murder. The High Court in appeal against the orderof conviction relied upon the evidence which was material to both the chargesof robbery and murder, as corroborative of the guilt of the accused for theoffence of murder. It was held by the Judicial Committee that the High Courtcould properly accept the evidence as corroborative of the guilt of the accusedfor the offence of murder, even though that evidence was not accepted by thetrial Court on the charge of robbery. In considering the argument that theevidence could not be relied upon in support of the charge of murder, theJudicial Committee observed :
'The Sessions Judge, it was said, had acquitted theappellant of robbery; he was, therefore, not guilty of that offence; on appealhad been taken against that acquittal and therefore no Court was entitled totake into consideration the allegation upon which the accusation of robbery wasfounded even as corroborative 'evidence' in another case. TheirLordships cannot accept this contention. The learned Sessions Judge did no infact find the accusation baseless; he only found the crime not proven. But evenif he had disbelieved the whole story of the recovery of the stolen propertyfrom the appellant, his finding would not prevent the High Court from weighingits value and if they accepted its substantial truth from taking it intoconsideration in determining whether another crime had been committed orno.'
8. The High Court was therefore not debarred from founding the order ofconviction for the offences under s. 467 I.P. Code and abetment thereof, of theappellants upon evidence, which corroborated the story of the prosecution insupport of those charges merely because that evidence was not accepted by theSessions Court in considering the charge against them of false personation forprocuring registration of the Heba-nama.
9. The appeal therefore fails and is dismissed.
10. Appeal dismissed.