Lancelot Sanderson, C.J.
1. In this case the appellant was convicted by a Jury of an offence under Section 467 of the Indian Penal Code, and the appeal is based upon the allegation that the learned Additional Sessions Judge's charge was defective. The respective cases were as follows--I take them from the learned Judge's charge.
2. The case for the prosecution was that after the death of a man called Sedu, who was uncle of one Arsad Ali, Arsad Ali gave a blank stamped paper to the appellant and one Amjad Munshi and that on this paper the appellant forged a deed of gift purporting to have been executed by Sadu and conveying his property to Arsad Ali and his brothers. The case for the defence was that the deed was written by the accused before the death of Sedu but that the date was not written by him, and that, as far as the appellant was concerned, the whole of the deed was genuine, except the date which must have been inserted afterwards.
3. The learned Judge in his summing up to the Jury deals with certain matters which, I assume, he regarded as being material for the purpose of showing that the defence should not be accepted and that the prosecution case was proved. The first point to which I wish to refer is that the learned Judge refers to the evidence of the three men whose names were attached to the document as witnesses, Rajoni Kanta Sil (Prosecution Witness No. 4), Samiruddin (Prosecution Witness No. 6), and Arman Sheikh (Prosecution Witness No. 7). The way he deals with that evidence is as follows: Prosecution Witnesses Nos. 4, 6 and 7 'say that they signed a document at the request of the accused, Amjad and Arsad, being told that it was a mortgage-deed and they signed on trust without the deed being read to them.' To my mind that conveys an implication that the evidence of these three men was to the effect that all the three signed the document at the request of the accused, Amjad and Arsad: and, the Jury may well have come to the conclusion from that direction that that was their evidence. But when we look at the evidence, we find that that is not a correct representation of facts. It is true that the first witness referred to (Prosecution Witness NO.4) said in his evidence that it was at the request of the accused that he signed the document, but the second witness referred to (Prosecution Witness No. 6) did not say anything about the accused; on the contrary, he said: 'In Magh last Arsad Ali and Amjad Munshi brought a document and asked me to be a witness. They said it was a mortgage to Arsad by Amjad. I signed. The document was not read to me. I cannot read. I signed on trust.' Not a word in this man's evidence implicating the appellant. As regards the third witness referred to (Prosecution Witness No. 7) that witness said: 'in Aghrayan or Pous Kala Mia (i.e., the appellant) and Amjad Munshi came to me and asked me to witness a mortgage-deed by Amjad in favour of Arsad. I signed on trust. Exhibit 2 bears my signature.' But when this Exhibit 2 was put to him in cross-examination and his attention was drawn again to his alleged signature on the document, he denied that it was his signature. When the learned Judge was dealing with that witness's evidence, not a word was said about that all important fact that this witness at first said that his alleged signature to the document was his signature, and in cross-examination he denied that it was his signature. To my mind that was an important fact to which the attention of the Jury ought to have been drawn by the learned Judge. In my judgment, this matter alone is sufficient to render the learned Additional Sessions Judge's summing up to the Jury defective, and defective in such a manner as would justify us in setting aside the conviction.
4. But the matter does not rest there: The learned Judge goes on to refer to the fact that two other Prosecution Witnesses Nos. 10 and 11, whose names appear on the deed as signed for them, had said in their evidence that they were not witnesses to the deed and they did not authorise any one to sign their names. The learned Judge does not draw attention to the point that although they must take that into consideration, it does not necessarily follow that the appellant had anything to do with the attaching of the signatures of these two witnesses to the document. Further than that, the learned Judge referred to the fact that at the arbitration the deed which is alleged to have been made in favoar of Arsad Ali was not produced. But he did not draw attention to the point that it does not necessarily implicate the accused. In my judgment, he ought to have drawn the attention of the Jury to the fact that Arsad Ali may have had his own reasons for not producing that document. There is not a word, as far as I can see, drawing the attention of the Jury or warning the Jury as to that feature of the case.
5. There are other matters to which I need not refer. It is sufficient for me to say that for the reasons that I have mentioned I do not regard this charge to the Jury as a satisfactory charge. Consequently, this verdict and sentence must be set aside.
6. As regards the course which we should adopt, it may be observed that Arsad Ali has been convicted of an offense in connection with this document and he has received the sentence of one month's imprisonment. The case for the prosecution at this trial was that the alleged forgery by the appellant was done at the instance of Arsad Ali. Arsad Ali has been sentenced to one month's imprisonment: the present appellant has been sentenced to four years' imprisonment. This is a position which I do not understand. Having regard to all the circumstances of the case, especially having regard to the fact that the appellant has already served three months' imprisonment, my learned brother and I do not think it necessary to direct that the appellant should be re tried. The result is that the conviction and sentence must be set aside and the appellant must be released from prison.
7. I agree.