1. The third accused (appellant in C. A. No. 206 of 1942) has been convicted by the Sessions Judge of Kurnool of an offence punishable under Section 467, Indian Penal Code and sentenced to two years' rigorous imprisonment. Accused 1 and 2 (appellants in C. A. Nos. 205 of 1942 and 206 of 1942, respectively) have been found guilty of abetting that offence and have been sentenced to three years' rigorous imprisonment.
2. The document which is said to be forged is a karar or relinquishment deed; and it is the prosecution case that this document was forged in order to support the title of the second accused--and incidentally that of the first accused's father-in a dispute between the second accused and his brother, P. W. 1.
3. The principal evidence that this document is forged is that of P.W. 2, supported by P. Ws. 3 and 4, that this karar which purported to have been executed five years before was shown to P. W. 2 and he was asked to attest it. Fortunately for him and for the complainant, P.W. 1, P. W. 2 did not meekly attest this document but read it through. He then suspected that this might not be a genuine document and insisted on taking it away in order to show it to P. W. 1, who according to the document had executed it. P. W. 3 heard the first accused and P. W. 2 arguing about this karar and the latter saying that he would take it away and show it to respectable people to find out if it was genuine. P. W. 4 was the first person to whom P. Ws. 2 and 3 showed the document. There are no adequate reasons for doubting the truth of this evidence. The document has been produced and it purports to have been written by the third accused. , These witnesses are of a different community from that of the parties, and although it appears that P.Ws. 3 and 4 have appeared on opposite sides in two litigations to that in which relatives of the first accused appeared; yet nothing has been said against the evidence of P. W. 2; and there is no reason to doubt that P. Ws. 3 and 4 also knew of what had happened on the day when P. W. 2 says that the second accused showed him the document.
4. When the accused were asked what they had to say about the case, the second. and third accused said that the karar was written by the third accused, but that it was done under the instructions of P. W. 1 jointly with the second accused. It is argued that the Judge ought not to have put questions to the 2nd and 3rd accused which elicited these replies from them. With regard to the third accused, I think this objection is well founded. There is no evidence that he forged the document or had anything to do with the forgery. His name appears on the document; but nobody was asked whether the signature or the writing of the body of the document was in the hand of the third accused; and so there was no evidence that the document was written by the third accused or signed by him as a writer. It is not, in the words of Section 342, Criminal Procedure Code, 'a circumstance against him ' that his name appears on the document, unless there is reason to believe that his name appeared there with his knowledge. If there were no circumstances appearing against the third accused in the evidence, then unquestionably the learned Sessions Judge should not have put him any questions at all; because Section 342 says that the Court shall put questions to the accused for the purpose of enabling the accused to explain any circumstance appearing in evidence against him. Any statement made by an accused person as a result of questions improperly put to him could not therefore be taken into account against him. That means that there was no case against the third accused and he should have been acquitted.
5. The same argument has been put forward with regard to the second accused, but his case is not quite the same. I agree with Mr. Vepa that the letter purporting to have been written to P. W. 1 by the vakil of the second accused is not evidence against the second accused; because the vakil was not examined and nobody has stated that the letter was in the handwriting of the vakil. Moreover, in order to make it admissible it would have been necessary to prove that the second accused had in fact given the instructions to his vakil which the vakil says in the letter were given to him. Nevertheless, there is one circumstance appearing against the second accused, and that is that sometime after P. W. I had sent a registered notice through his vakil to the second accused, this forged document came into existence. This is perhaps only a small piece of circumstantial evidence which would not in itself be sufficient to warrant a conviction; but it is sufficient to justify the questions put by the Court to the accused under Section 342. If a question is properly put to an accused person, and he chooses to make a statement which inculpates himself, then I find no reason to think that his answer cannot be taken into account because that answer was not strictly necessary for the explaining away of the circumstances appearing against him. The admission of the second accused in his statement that the document was drawn up by the third accused at the joint request of himself and P. W. 1 is therefore evidence that the second accused abetted what has been found to be the forging of a document. It does not follow that because the principal is acquitted no person can be punished for abetment. For the first accused it has been argued that it was his father who was really interested in this litigation; and so it is possible that although P. W. 2's evidence that the first accused asked him to attest the document may be true, yet it does not prove that the first accused knew the document to be forged. As to that, it has to be noted that the interests of the first accused and his father are the same, that the first accused's father is an old man of 70 years of age, and that the first accused is now the manager of the family. The first accused must have known that the document was forged; for if it had been genuine, it would not have been necessary five years after the date shown on the document, to get it attested. I therefore agree with the learned Sessions Judge that the case against the first accused has been made out.
6. The offences are serious ones; and I do not consider the sentences excessive.
7. The appeal of the third accused is allowed and his conviction and sentence set aside. The convictions and sentences on the first and second accused are affirmed and the appeals so far as they relate to these accused are dismissed.