1. This is a Reference under Section 307, Criminal P.C., The accused Tarak was charged under Section 471 and the other accused under Section 467 read with Section 109, I.P.C. The case was heard by a jury of 5 persons who brought in a unanimous verdict of 'not guilty' on all the charges against all the accused. The evidence given was circumstantial. The learned Assistant Sessions Judge considered it so convincing and clear that he regarded it as essential for the ends o justice to refer the case to this Court on the ground that the verdict of the jury was wrong and perverse and against the weight of evidence.
2. The case for the prosecution was that Akshoy and Gobardhan held a plot of land tinder one Hrishikesh. Hrishikesh sold his interest to the accused Tarak and to one Surendra in equal moieties. Surendra brought his 8 annas share in the name of his minor son Krishto. Akshoy and Gobardhan then took a lease of the land for five years from Tarak and Krishto and executed a registered Kabuliyat. When this lease expired, Tarak proposed a fresh Kabuliyat to which Akshoy and Gobardhan agreed, and they all went to the Sub-Registry Office at Alipore on 11th April 1932. The Kabuliyat was executed, but when they were about to register it, Akshoy and Gobardhan learnt from Tarak that it was in his favour alone for the whole of the land. On hearing this, Akahoy and Gobardhan refused to have the Kabuliyat registered. They continued in possession of the land and executed a Kabuliyat in favour of Krishto, the owner of the other moiety on 2nd July 1932. In December 1932 there was a riot which arose out of the cutting of paddy on the land and Gobardhan was murdered. Tarak and others were committed to Sessions on a charge of rioting and murder and they were tried in May Sessions, 1933.
3. The learned Judge then says in his letter of reference that Tarak propounded an Istafanama purported to have been executed by Akshoy and Gobardhan in 1932 and used it as a genuine document in support of his case. All the accused were acquitted. Subsequently an inquiry was held under Section 476, Criminal P.C., and a complaint was preferred against the present accused under Sections 471 and 467. According to the evidence in the present case the signatures of Akshoy and Gobardhan on the Istafanama were not genuine. The learned Judge remarks that the handwriting expert called by the prosecution was comparatively a novice and therefore he left out of consideration the opinion given by him and his evidence and directed the jury accordingly. But he considered that the guilt of the accused was established, because he thought that the evidence showed that Tarak had begun to devise means for ousting Akshoy and Gobardhan from the lands. That was the genesis of the Istafanama. This was shown by the Kabuliyat (Ex. 2) which Tarak had tried to persuade Akshoy and Gobardhan to register.
4. The defence was that Ex. 2 was fabricated by Akshoy and Gobardhan, in order to attempt to nullify the Istafanama, But the Judge did not accept this defence, because of Kabuliyat, Ex. 3, which was executed in favour of Kristo. Further, he came to the conclusion that the execution of the Kabuliyat, Ex. 3 showed conclusively that the story of surrender was a myth and that Akshoy and Gobardhan continued to be in possession of the lands. Further, certain letters were put in evidence showing that Tarak had tried to get the mother of Kristo to join with him in evicting Akshoy and Gobardhan.
5. The learned Judge seems to have been impressed very much by the fact that Akshoy and Gobardhan continued to be in possession of the lands and considers that evidence conclusive. I find it difficult to understand the learned Judge's reasoning. Obviously the evidence cannot be conclusive on this point. It may well be that Akshoy and Gobardhan continued to be in possession of the lands without any legal right. The mere fact that they had, as alleged, executed the Istafanama would not necessarily show that they could not subsequently have continued in possession of the lands. It follows, that the facts, which I have stated and which form the basis of the letter of reference of the learned Judge, are not so conclusive that the jury's refusal to accept the story of the prosecution that a forged document was used by the accused in his trial, was necessarily perverse and against the weight of evidence. The jury gave the accused the benefit of the doubt and, it cannot be said that their verdict was so unreasonable that it ought to be set aside. After all, the jury were the judges of fact in this case. But beyond these considerations, I find that the only evidence of user within the meaning of Section 471, I.P.C., was that at the Sessions trial Tarak put in a written statement in his defence in which he referred to certain documents which had been filed and also referred to the Istafanama in the following words:
The witness Akshoy and the deceased Gobardhan brought me the Istafanama and gave up the disputed land.
6. The Istafanama was neither filed nor produced nor put in evidence by the accused or on his behalf. It appears that it was produced and put in evidence by one of the witnesses for the prosecution and marked as Ex. 1. In cross-examination, the Istafanama was referred to by the pleader appearing on behalf of the accused. In my opinion, this cannot be held to be user within the meaning of Section 471, I.P.C. In the first place, there is no authority for the alleged practice allowing an accused person in a Sessions trial to put in a written statement. There is no provision in the Criminal Procedure Code for any such practice and in considering this case, we must regard the written statement as something which is no part of the record of the trial of the accused charged with rioting and murder. But assuming for the purpose of argument that the written statement can be regarded as part of the trial and of the record, in that case it certainly is not evidence, and the mere reference in the written statement to a document which is produced and put in evidence by the prosecution cannot be held to be user by the accused within the meaning of the section. Further, I am of opinion that if a document is produced and put in evidence by the prosecution and the pleader of the accused cross-examines the witness upon this evidence, including the evidence which he has given about the written document, the cross-examination cannot be held to be user within the meaning of Section 471. To hold that such action on the part of a pleader for the accused amounts to user within the meaning of the section would most seriously interfere with the rights of the accused and his pleader in putting forward the defence of the accused. For example, the accused cannot be charged with any offence arising out of any verbal statement that he may make from the dock or any answer which he may give in reply to the question put by the learned Judge. Such a statement may be full of inaccuracies and falsehoods. But it is clear that he cannot be charged with perjury in respect of it, because in the first place, the statement is not made on oath or affirmation. Similarly, it would lead to grave interference with the freedom and privileges of the accused if, because his pleader has cross-examined upon some document produced and put in evidence by the prosecution, the accused by such action makes himself liable to be prosecuted for using a forged document under Section 471. For these reasons I am of opinion that the reference of the learned Judge must be rejected and the accused are acquitted. The accused, who are on bail, will be discharged from their bailbonds.
7. I agree that the use, which was made of the document, cannot be said to bring the accused under the provisions of Section 471, inasmuch as the written statement is not, strictly speaking, a part of the record and the reference to the document in cross-examination, the document having been put in by the prosecution, also does not bring the offence within the purview of Section 471, I.P.C.