1. Accused 1 and accused 2 in Sessions Case No. 2 of 1958 on the file of the Kottayam Sessions Court are the appellants in this Criminal Appeal. They are husband and wife, accused one being the husband and accused 2, the wife. Hereafter in this judgment they will be referred to as accused 1 and accused 2. Accused 1 stands convicted by the learned Sessions Judge under Sections 467, 468 and 419 of the Penal Code read with Sec, 34 and also under Sections 465 and 471, Penal Code. He had been sentenced to varying terms of imprisonment for each of these offences, but all the sentences are to tun concurrently and the maximum sentence passed against him is rigorous imprisonment for 3 years.
Accused 2 stands convicted under Sections 467, 468 and 419 Penal Code. Separate sentences have been passed with respect to each offence, but all the sentences are to run concurrently and as in the case of accused 1, the maximum sentence is rigorous imprisonment for 3 years. Another person was also tried along with accused 1 and accused 2 for commission of the same offences, but the learned Sessions Judge acquitted him.
2. Stated briefly the facts of the case are as follows : Accused 1 has a sister by name Kochupen-namma Bhavani Amma. She is the complainant in the case and was examined at the trial as P.W. 1. She had instituted a suit in p. Section 259 of 1124 on the file of the Kottayam District Court against accused 1 and the other members of the family as also several alienees, for partition of the family properties after avoiding some prior partitions and alie-nations effected by her family during her minority.
According to the prosecution, with a view to foil the purpose of that suit the three accused persons at the trial, one Ulahannan Chacko and one Ouseph Ouseph (since deceased), the scribe of the document, conspired together and brought into existence a gift deed purporting to have been executed by P.W. 1 in favour of accused 1, her brother and got it registered as document No. 1145 of l952 of the Meenaclil Sub-Registrar's Office. This was on 15-3-1952 and the document is Ext. P-2 in the case. Accused 1, the donee thereunder, produced! the document for registcalion before the Sub-Registrar (P.W. 5).
The prosecution case is that accused 2 falsely personated P.W. 1 before the Sub-Registrar and lent her signature and thumb impression to the document before the Sub-Registrar in token of her having executed it. Accused 3 before the court of Session is defendant 20 in O. S. 259 of 1124 and he happened to be made a party to that suit as an alienee of some of the family properties. The prosecution alleged that he was present at the place where Ext. P-2 was written and signed and was also before the Sub-Registrar when the document was registered.
The evidence showed that it was he who spent the necessary amounts for the execution and regis-tration of the above document. P.Ws. 2 and 3 at the trial identified accused 2 before the Sub-Registrar as P.W. 1 Under Ext. P-2 Survey Plot 165/2 of the Meenachil Village, measuring 1 acre, together with a portion of the building standing thereon and Survey Plot 263/1, also of the Meenachil Village, measuring 1 acre 50 cents, formed the subject of the gift. Both the properties are included in the schedule annexed to the plaint in the partition suit. The document stipulated that in view of its execution the executant thereof would withdraw O.S. 259 of 1124.
3. On the same date as Ext. P-2 was executed, the donee thereunder, that is, accused 1, sold a portion of the properties comprised therein to one Ulahannan Chacko as per Ext. P-6 and that document was also got registered on the same date. Its registration No. is 1146. Ext. P-6 refers to Ext. P-2 as the document conferring title on accused 1 over the properties dealt with thereunder. Accused 1 himself produced that document for registration and also admitted its execution. P.W. 2 is one of the identifying witnesses for accused 1 before the Sub-Registrar. The transferee under Ext. P-6, Ulahannan Chacko was accused 4 before the committal court, but that court discharged him.
4. Yet another document was also brought into existence on the strength of Ext. P-2. That was ten days (25-3-1952) after the execution and registration of Ext. P-2 and Ext. P-6 and that purports to be a gift deed by accused 1 to accused 2 of the remaining properties comprised in Ext. P-2. Accused 1 produced that for registration before the Meenachil Sub-Registrar's Office and also ad-mitted its execution.
5. The charges to which the accused persons have been called upon to plead at the trial set out that Exts. P-2, P-5 and P-6 are forgeries. Accused 2 is alleged to have forged Ext. P-2 and accused 1 Ext. P-5 and Ext. P-6. Accused 2 also falsely personated P.W. 1 before the Sub-Registrar. On these facts accused 2 stood charged with the commission of offences punishable under Sections 467 (forgery of valuable security), 468 (forgery for pin-poses of cheating) and 419 (cheating by personation) and she has been convicted for all these offences. Accused 1 is alleged to have committed all the said offences read with Section 34 and convicted accordingly.
The Public Prosecutor readily conceded that the conviction of accused 1 in relation to Ext. P-2 should have been for abetment of the offences committed by his wife and that as he was present throughout during the time of the execution and! registration of the document, tbe appropriate section to be applied against him with respect to the offences committed by his wife was Sectioin 114 of the Penal Code and not Sectiion 34. While the plea of accused 2 was a complete denial of the commissions of the offences alleged against her, according to accused 1, Ext. P-2 was executed by P.W. 1 herself and she admitted having executed Exts. P-5 and P-6 and also produced those documents as well as Ext. P-2 for registration before the Sub-Registrar.
Whether his case with respect to Ext. P-2 is true or the prosecution case with r.espect to it is true is the main question that we have to examine in the case, but it is difficult tn understand how Ext. P-5 and Ext. P-6 can be said to be forgeries. Those documents purport to have been executed by accused 1 and it is the case of both sides that accused 1 himself executed them. Tbe offences arraigned against accused 1 in respect of those documents were those under Sections 465 (forgery) and 471 (using a forged document as genuine).
Accused 2 was sought to be made liable for those offences under Section 34, Penal Code, but thelower court acquitted her of those charges. However that court fell into the error of convicting accused 1 for forgery with respect to Exts, P-5 and P-6, but the Public Prosecutor rightly conceded that that conviction cannot be sustained. The further charge in relation to those documents was that under Section 471, but we find it difficult to hold that the mere reference to Ext. P-2 in Exts. P-5 and P-6 as conferring title on the executant of Exts. P-5 and P-6 constitutes 'using' Ext, P-2, a forged document as genuine, within the meaning of Section 471.
The Public Prosecutor was prepared to abandon that case as well and we would therefore even at this stage record that we acquit accused 1 of the offences under Sections 465 and 471 for which he has been convicted in gelation to Exts, P-5 and P-6. As in the case of accused 2, we are therefore left to adjudge the guilt of accused 1 as well in relation to Ext. P-2 alone.
6. This takes us on to the merits of the prosecution case as against accused 1 and accused 2 regarding Ext. P-2. Before we discuss that question we feel constrained to remark that the court ofi Session held a joint trial in respect of varied offences in relation to three separate documents, two ofi them of one date and the third of another, in utter disregard of the provisions in Sections 234 and 239 of the Code of Criminal Procedure. However no objection to the joinder of charges was taken before the lower court or in the memorandum of appeal to this Court or even in the arguments before us. No whisper even was heard from the learned defence counsel that on account of misjoinder of charges and persons, the trial has been vitiated or that any miscarriage of justice has resulted therefrom. We are also unable to find that the accused persons have in any way been prejudiced by the said mis-joinder. Section 537(b), Cr. P. C. therefore cures the defect.
7. As indicated earlier after the concessions the Public Prosecutor made during the course of his arguments only the case in relation to Ext. P-2 survives for our consideration and the prosecution case is that accused 1 and accused 2 were with reference to that acting in close concert. The case which we proceed to consider is not therefore open to any vice of misjoinder. No doubt the question. of the legality of joinder of charges or persons for trial must depend upon the accusation and not on the result of the trial.
8. In finding accused 2 guilty of forgery and false personation the lower court made use of tbe finger-prints obtained from her by the police during, the course of the investigation and the report and the evidence of finger-print expert, (P.W. 6) about his comparison of those prints with the prints appearing in Ext. P-2 (Ext. P-2 a) and in Ext. P-7 (Ext. P7a), the finger-print register of the Meenachil Sub-Registrar's Office. To our minds to make use of that evidence amounts to testimonial compulsion, and offends Article 20(3) of the Constitution. The Public Prosecutor rightly conceded that that evidence may be eschewed, entirely and that the guilt or otherwise of accused 2 may be decided upon on the other evidence on record. (His Lordship discussed the evidence and continued )
9. The cumulative effect of the evidence, direct cand circumstantial, set forth above is to es-tablish that it was accused 2 who admitted the execution of Ext. P-2 before the Sub-Registrar when accused 1 produced it for registration and that she had lent her signature and thumb impression to it in token of having executed it. She told the Sub-Registrar that she was the person named as Kochu-pennamma Bhavani Amma in Ext. P-2 and that shehad executed it. Ext. P-2 is therefore a forged document and accused 2 committed its forgery. She had also falsely personated P.W. 1 before the Sub-Registrar and thus cheated him. Her action wa3 also in furtherance of the scheme to cheat P.W. 1 of her property. Accused 2 has therefore been rightly convicted by the learned Sessions Judge under Sections 467, 468 and 419 and we confirm those convictions.
10. With respect to the case against accused 1 we have already pointed out that the part alleged to have been played by him with respect to Ext. P-2, if made out would amount to abetment of the offences committed by his wife and that as an abettor present, the proper provision of law to be invoked was Section 114, Penal Code. Ext. P-2 is in favour of accused 1 and the evidence and circumstances referred to in the preceding paragraphs clearly show that while the document purports to have been executed by P.W. 1, the sister, it was really the wife, accused 2, who executed it and also admitted the execution before the Sub-Registrar.
The admission of execution before the Sub-Re-fistrar was consequent on accused 1 producing the alse document for registration. He stands by that document and he executed Exts. P-5 and P-6 disposing of the properties dealt with under Ext. P-2. His definite case that P.W. 1 herself executed Ext. P-2 and admitted its execution before the Sub-Registrar has been found to be false. The evidence of P.W. 2 and P.W 3 went to show that he introduced accused 2 to them as his sister Kochu-pennamma Bhavani Amma.
The question of the abetment by him of the often-ces of forgery and false personation committed by accused 2 is really a matter of inference from hisconduct and the surrounding circumstances of the case and we have no hesitation at all in agreeing with the lower court that he has abetted the commission of those offences by accused 2. No doubt except in one or two places what the lower court has stated is that accused 1 and accused 2 acted in furtherance of their common intention to cheat P.W. 1 and not that accused 1 abetted the actions of accused 2.
Really it is abetment, because forgery and also personation have been committed only by accused 2. Criminal acts involved are entirely those of accused 2 and the part accused played was to instigate, conspire with and aid accused 2 in her actions. Accused 1 is therefore guilty of all offences committed by accused 2, read with Section 114, Penal Code and we alter the conviction of accused 1 accordingly. He is convicted under Sections 467, 468 and 419, Penal Code, read with Section 114.
11. We have not overlooked the fact that judicial opinion is not unanimous as to whether the appellate court can alter a conviction for a substantive offence info one for abetment thereof. To our minds that controversy does not arise here. According to the charge and judgment of the lower court accused 1 was constructively liable for the substantive offences committed by accused 2 and as such it cannot be stated that he stood charged with the commission of the substantive offences themselves.
Further, though Section 34 is quoted in the charge and in the judgment, and repeated reference to the two accused persons acting in furtherance of a common intention are made in the judgment, the facts alleged and proved are those that are required to constitute abetment where the abettor is present. We are therefore only substituting the appropriate Section instead of the wrong Section quoted in thecharge and in the judgment. The substance of the accusation against accused 1 remains the same, no fresh facts are found by us nor is that necessary. Even if it were otherwise, there is respectable judicial opinion for the view that an appellate court can alter a conviction for the commission of a substian-tive offence into one for abetment thereof.
12. The question of sentence alone remains. The lower court convicted accused 1 under five Sections and passed four separate sentences. We have reversed the convictions under Sections 465 and 471 and the sentence of 1 year's rigorous imprisonment passed therefor must hence necessarily be set aside. We order accordingly. Of the three remaining Sections, the lower court awarded 3 years rigorous imprisonment for the offence under Section 467 (read with Section 34), 2 years for that under Section 468 (read with Section 34) and for 1 year for that under Section 419 (read with Section 34). We consider it unnecessary to pass separate sentences for the offences under Sections 467 and 468 and sentence accused 1 to undergo rigorous imprisonment for 2 years under those Sections read with Section 114. The sentence of 1 year passed under Section 419 read with Section 34 is substituted as one passed under Section 419 read with Section 114. The two sentences will run concurrently.
13. As for the sentence against accused 2, that also should be correspondingly altered and reduced. We sentence accused 2 to undergo rigorous imprisonment for 2 years for the offences punishable under Sections 467 and 468 and like imprisonment for 1 year for the offence under Section 419. The two sentences will run concurrently.
14. Subject to the modifications made by thisjudgment in the convictions and sentencespassed by the Sessions Court against thetwo accused persons involved in this appeal, theirappeal will stand dismissed.
15. Order accordingly.