Trevelyan and Rampini, JJ.
1. It is unnecessary for us to enter into the details of the history of this case. The judgment of the learned Sessions Judge has accurately narrated the circumstances which led to the present enquiry. There can be no doubt but that one of the most skilful and impudent forgeries ever committed has been perpetrated. It is for us to ascertain whether on the evidence any offence has been brought home to the present accused.
2. The questions argued before us, and those which we have to determine, are as follows: 1. Is exhibit A a genuine document? 2. Is exhibit L a forgery? 3. If A is genuine, was it ever on the Collectorate record referred to in this case? 4. If A is genuine, and was on such Collectorate record, was it stolen therefrom? 5. Have the accused or any of them committed any offence in respect of these documents
3. The learned Sessions Judge and the assessors have come to the conclusion that exhibit A is a genuine document. Much argument on this subject has been addressed to us. Mr. Woodroffe for the appellant has relied upon the inability of Shama Churn Maiti, the Naib Nazir of the Midnapore Collectorate, to determine whether the writing purporting to be his on A or that on L is his writing.
4. If a forgery be a good one, an exact copy be made of handwriting, it is impossible for any one to swear from the handwriting as to whether a document is genuine. This question must be determined from evidence and circumstances.
5. As Shama Churn Maiti proves, and as there can be no doubt, one of these documents is a forgery, if they are not both forgeries. Shama Churn's handwriting is the same in both. He can detect no difference. It is very improbable that both A and L are forgeries. There must have been in the ordinary course a genuine 'Gach' summons filed, and the service recorded on it.
6. There is direct evidence as to the genuineness of A. Nityanand Maiti distinctly swears to A being the notice served upon him, and to L not having been served upon him. This witness is quite independent of the prosecution. If anything, his interest would be to shield the accused, as he is a near relation of one of them (Koilash), and lives in the same homestead with him. Doubt is sought to be thrown on his testimony in this respect by his evidence as to other handwriting. On examination, we do not think there is anything in the cross-examination of this witness as to handwriting which detracts from the value of his testimony as to his own writing; besides it is clear from this witness' evidence that Kristo Priya died at the time alleged by the prosecution. This witness lived in the same homestend with her, was present at her death, and was present at her cremation. Throughout the case there is no real suggestion that she died at any other time. This witness is apparently ignorant as to the dates of the deaths of some others of his relations, but it does not appear that he was living with them or was present at their death. Again there is no doubt whatever but that A was found in Ishan's box. That is not disputed before us. It is preposterous to suppose that it was put there by Rajnarain, or by any person interested with him or on his behalf.
7. It would not have been the interest of any one except the plaintiffs in the suit to forge A. It was a document which not only would not support the defendants' case, but might be used against them, as it would distinctly show that their allegations, as to the death of Kristo Priya was false. These considerations, we think, strongly support the direct evidence, even if they would not be sufficient without it. Mr. Price's name and the Collectorate seal would be evidence of the genuineness of the document if they stood by themselves, but those are both to be found on L. Whether viewed as a question of the competition for genuineness between A and L, or on the evidence applicable to A only, we think that the Court below was right in holding that A is a genuine document. It follows that L is a forgery.
8. The next question is whether A was ever on the Collectorate record. We think that the determination of the question as to the genuineness of A practically determines this question also.
9. It does not follow by any means that any one could speak to a document like this having been on the record. In the ordinary course it would be on the record. The case would not be determined unless it had been filed, and on the document itself appear endorsements which could only have been made on its being brought back to the Nazir after service. This would show that it must have been on the record.
10. Again the fact that we find the forged document, exhibit L on the record, would lead one to suppose that it had been substituted for the genuine document. In a matter of this kind it is right to raise legal presumptions arising out of the ordinary course of business. Apart from any such presumption, the fact that it came back to the Nazir's office is apparent from the endorsement. It appears to have issued from the Collectorate, and to have gone back there.
11. The next question is whether A was stolen from the Collectorate. It is difficult to imagine how it can have legitimately found its way from the Collectorate records into Ishan's box, i.e., into the box of a person whose employer was interested in suppressing it. It has been argued, and rightly so, that before a man can be convicted of receiving property knowing it to be stolen, it must be shown that property has been stolen. The disappearance of the document from the record plus the substitution of an imitation of it in its place, shows that it must have been taken with a dishonest object, and shows this as conclusively as can be.
12. The remaining question is the most important one. We agree with the learned Sessions Judge in thinking that it would be unsafe to act in this case on the unsupported evidence of Gooroo Pershad. We are not prepared to say that he was an accomplice. He may have been one, but it would be impossible to say in this case that he helped in the commission of the offence. He was undoubtedly cognisant of it, and omitted to disclose it for six days. From any point of view, we do not think that his testimony is such as to justify a conviction, except where he is corroborated. There is no doubt that he is most amply corroborated with regard to Ishan. The fact that exhibit A was found in Ishan's box is a very strong circumstance against him. He has never attempted to explain this.
13. It is said that it is not shown that he acted dishonestly. Here a document having an important bearing on the case of his employer in the civil suit is found in his box after having been stolen from the record room of the Collectorate; it is difficult to conceive how his intention can have been otherwise than dishonest.
14. Besides, there arises the ordinary presumption as to property recently stolen. Having regard to the substitution of L, which can only have been effected for the purpose of making evidence in the suit, it is a legitimate inference that the substitution was made after the service of the summons in the suit. As the suit was filed on the 20th of April, and A was found with Ishah on the 9th of July, A may be said to have been recently stolen at the time it was found.
15. The case as against the others is different. Girish Chandra Mitter, whose evidence is unimpeached, proves that Koilash and Boikanta Nath with Ishan and Gooroo Pershad gave instructions for the written statement.
16. Boikanta and Ishan first gave him instructions, and as to this he is positive. The written statement contains the untrue statement to support which L was substituted for A. Soon after the day on which Gooroo Pershad says that, Boikanta took away the notice, i.e. L, we find Boikanta Nath making an application for a copy of L. He and Koilash take this copy to the pleader, and Boikanta reads it out to the pleader. Boikanta before the Magistrate says that he got the copy at the instance of Gooroo Pershad, and that Gooroo Pershad paid the costs. This is absurd, and is inconsistent with his showing it to the pleader.
17. Koilash declined to say anything to the Magistrate as to the documents. We think that the action of Koilash and Boikanta Nath with regard to the written statement and the procuring of the copy of L makes it clear that they were cognisant of the substitution of L for A, and corroborates the story told by Gooroo Pershad as to the parts taken by these persons in the perpetration of the crime.
18. So far as Koilash is concerned, there is also the fact that he was Ishan's employer and must have known what was going on. This by itself would be worth little, but taken with regard to the other circumstance, it may well be considered.
19. We dismiss the appeals of all the accused.