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Madhavan Ayyappan Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1953CriLJ275
AppellantMadhavan Ayyappan
RespondentState and anr.
Excerpt:
- .....to run concurrently. from these convictions and sentences these two appeals are brought by the two accused persons. the cr. revn. petn. is filed on behalf of the state for enhancing the sentence. according to the learned public prosecutor the sentences are inadequate in view of the seriousness of the crimes committed by the accused persons and in view of the maximum punishments provided in the sections under which they have been convicted.2. the 1st accused had married the 2nd accused as his first wife. subsequently he married the complainant, who was examined as p.w. 1, and lived with her for some time. then he seems to have sent her away and gone back to his first wife who is the 2nd accused. while both the accused persons were living together, the case for the prosecution is that the.....
Judgment:

Kunhi Raman, C.J.

1. The accused who were tried in the Sessions Court at Mavelikara in Sessions Case No. 8 of 1951 are husband and wife, the 2nd accused being the wife of the 1st accused They were charged under Sections 419, 420, 469 and 106 of the Travancore P.C. The learned trial Judge convicted the 1st accused under Sections 420, 469 and 104 and sentenced him to undergo rigorous imprisonment for six months for the o fence under Section 420 and for one year for the offence under Sections 469 and 104, the sentences to run concurrently. The 2nd accused was convicted under Sections 420 and 469. She was sentenced to undergo rigorous imprisonment for six months for the Offence under Section 420 and for one year for the offence under Section 469, the sentences to run concurrently. From these convictions and sentences these two appeals are brought by the two accused persons. The Cr. Revn. Petn. is filed on behalf of the State for enhancing the sentence. According to the learned Public Prosecutor the sentences are inadequate in view of the seriousness of the crimes committed by the accused persons and in view of the maximum punishments provided in the sections under which they have been convicted.

2. The 1st accused had married the 2nd accused as his first wife. Subsequently he married the complainant, who was examined as P.W. 1, and lived with her for some time. Then he seems to have sent her away and gone back to his first wife who is the 2nd accused. While both the accused persons were living together, the case for the prosecution is that the 1st accused made the 2nd accused falsely personate the complainant and execute a document of sale in his favour of property which did not belong to the 2nd accused, but which was the property of the complainant. For registering that document the first accused took the 2nd accused to the Sub-Registrar's Office and the document was registered by the 2nd accused in these circumstances. Unfortunately, since the document in the case was in the possession of the 1st accused and he would not produce it, it was not possible for the prosecution to have the document itself produced in the court below. The learned Public Prosecutor represents that in spite of a search warrant that was issued for seizing the document, the efforts of the authorities were not successful.

3. The main evidence for the prosecution is that of the Finger Print Expert who was examined as P.W. 9. The finger prints which he had examined were those in the registers that were produced from the Sub-Registrar's Office in which the finger prints of executants of documents are taken. Ext. G (1) is stated to be the thumb impression of the 2nd accused. This was taken on the date she registered the original of the sale-deed Ext. A. Ext. A (1) is another thumb impression of the 2nd accused that was taken when she executed the original of Ext. F. There is no doubt from the evidence in this case that the original of Exts. A and B were executed by the 2nd accused. The prosecution tried to connect the finger prints in this case by the following evidence. P.W. 6 is the vendee under Ext. F. He speaks to that fact and he identified the second accused in court as the person who executed the original of Ext. F in his favour. P.W. 7 was the Sub-Registrar who registered the original of Ext. F. He was not able to identify the 2nd accused but he stated in his evidence that the person who executed the original of Ext. F was made to affix her thumb impression in the register Ext. H, the thumb impression itself being marked as Ext. H (1). P.W. 6 also says that the first accused had attested the document.

(3a) The Sub-Registrar has also given evidence to the effect that the person who executed the original of Ext. A was made to affix her or his thumb impression in the Thumb Impression Register Ext. G. Ext. G (1) being the particular impression that was marked in the court below. P.W. 3 is the person who wrote the original of Ext. A. He has also given evidence in the court below. The evidence of the Finger Print Expert P.W. 9 is to the effect that for 17 years prior to the date he gave evidence, he has been attached to the Finger Print Bureau of the Travancore Police Department, and during all these 17 years he has been examining thumb impressions and fingerprints and comparing them. He is positive that the finger prints appearing in Exts. G (1) and H (1) are of the same individual. He has given reasons in detail on examining these finger prints and the learned Judge who was following his evidence has chosen to accept his evidence with regard to the identity and the similarity between the two impressions. On the evidence placed before him of these particular documents and of the surrounding circumstances spoken to by some of the other witnesses for the prosecution, the learned Judge has arrived at the conclusion that the prosecution has made out the case against the two accused persons under Sections 420 and 469 in the case of the 2nd accused and Sections 420 and 469 read with Section 104 against the 1st accused the husband having abetted the commission of the offence.

4. Mr. Joseph the learned Counsel for the appellants argues that the charge in this case specifically mentions that the person deceived by the two accused was the Sub-Registrar and he therefore argues that the case under Section 420, namely, cheating by personation, cannot be said to have been made out. The definition of cheating contained in Section 416 of the Travancore P.C. which corresponds to Section 415 of the Indian P.C. prescribes certain conditions which ought to be fulfilled before a person can be said to have committed an offence of cheating. There must be deception practised in the first instance and as a result of the deception the accused must have intentionally induced the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived. That condition may be said to be fulfilled in the present case because but for the deception the Sub-Registrar would not have consented to register the document. But the definition goes on to say that another condition is also essential and that is that the act or omission causes or is likely to cause damage or harm to that person that is to say the person deceived in body, mind, reputation or property.

(4a) In the present case no harm on damage can be said to have been caused to the Sub-Registrar in body, mind, reputation or property. In the circumstances, the conviction and sentence so far as Section 420 of the Travancore Penal Code is concerned cannot be supported and must be set aside. But the case under Section 469 has been fully made out in view of the evidence which we have already adverted to. The first accused is guilty under Section 469 read with Section 104 and the 2nd accused is guilty under Section 469. The punishment of one year's rigorous imprisonment awarded by the court below seems to us to be inadequate. In the criminal revision petition brought on behalf of the State we increase this punishment two years rigorous imprisonment. The appeal brought on behalf of the accused persons must be dismissed. Cancel bail bonds.


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