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In Re: the Matter of Dhunum Kazee and anr., Vs. Dhunum Kazee and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal53
AppellantIn Re: the Matter of Dhunum Kazee and anr., ;The Empress
RespondentDhunum Kazee and anr.
Cases Referred and Reg. v. Cooke
Excerpt:
criminal procedure code (act x of 1872), section 263 - discretion of court--verdict of jury--forgery and abetment--acquittal by jury--disagreement by judge--principles guiding the court's discretion under section 263 of the criminal procedure code (act x of 1872)--'fraudulently and dishonestly uttering'--intention--inference of fraud. - .....document, dated the 12th falgoon 1260, knowing or having reason to believe the same to be a forged document; and the accused khorshed kazee was charged under sections 471/109 of the penal code with abetting the fraudulent and dishonest use of the forged document knowing or having reason to believe that the same was forged. the jury unanimously acquitted the accused. the officiating sessions judge of burdwan, before whom the accused were tried, disagreeing with the verdict of acquittal, has submitted' the case to the high court under the provisions of section 263 of the criminal procedure code.2. in arriving at a conclusion as to what principles should guide me in the exercise of the discretion given me by section 263 of the criminal procedure code, i am not left without authority......
Judgment:

Norris, J.

1. In this case the accused Dhunum Kazee was charged under Section 471 of the Penal Code with having, on or about the 1st of February 1879, at the Jehanabad Munsif's Court, fraudulently and dishonestly used as genuine a certain document, dated the 12th Falgoon 1260, knowing or having reason to believe the same to be a forged document; and the accused Khorshed Kazee was charged under Sections 471/109 of the Penal Code with abetting the fraudulent and dishonest use of the forged document knowing or having reason to believe that the same was forged. The jury unanimously acquitted the accused. The Officiating Sessions Judge of Burdwan, before whom the accused were tried, disagreeing with the verdict of acquittal, has submitted' the case to the High Court under the provisions of Section 263 of the Criminal Procedure Code.

2. In arriving at a conclusion as to what principles should guide me in the exercise of the discretion given me by Section 263 of the Criminal Procedure Code, I am not left without authority. In The Empress v. Mukhun Kumar I.C.L.R. 275; at p. 281 Garth, C.J. says: 'With regard to the first of these questions' (i.e., how far the High Court is justified in a case referred under Section 263 of the Criminal Procedure Code in convicting the accused contrary to the express and unexplained finding of a jury) 'it appears to me that, by that section, the Legislature intended to vest in the High Court a very large discretion, and that it would be improper for us, if not impossible, to lay down any fixed rule by which that discretion should be controlled; the verdict of a jury, who are the legally constituted judges of facts, and have the advantage of seeing the case tried and of hearing the witnesses examined,' (and, what is more important, cross-examined) 'ought always in my opinion to command its proper weight; and the more unanimous their verdict may be, and the less likely to have been influenced by prejudice or error, the more entitled it should be to our respect and consideration; but there may be many occasions where, as it seems to me, little or no weight [56] should be attached to their verdict; as for instance where, out of a jury of five, three are of one way of thinking and two of another, and the presiding Judge agrees with the minority, or where it is manifest from the conduct of the jury or otherwise that their minds have been influenced by a prejudice which had prevented them from forming a correct judgment. In the exercise, therefore, of my own discretion in cases coming before us under this section, I should not go so far as to hold with Macpherson and Morris, JJ.; Queen v. Wuzir Mundul 25 W.E. Cr. Rul. 25 ' that the verdict of a jury should not be interfered with except where there is a gross and unmistakable miscarriage of justice; 'nor on the other hand, should I consider myself justified in deciding any case according to my own views of the evidence without giving the verdict of the jury its proper weight. Each case, in my view of the section, should depend upon its own circumstances.'

3. In Reg. v. Khanderav Bajirav I.L.R. 1 Bom. 10 West, J. says: 'The section we have quoted (i.e., Section 263, Criminal Procedure Code) lays down that the Court may acquit or convict without reference to the charges made against the accused; in other words, the functions both of the Judge and jury are cast upon the Court, and this differentiates our position very widely from that of the Courts in England. Notwithstanding this difference, however, and the more onerous duties devolving in consequence on the High Courts in India, we still desire to be guided as far as may be by the analogies of the English law. It is a well recognized principle that the Courts in England will not set aside the verdict of a jury unless it be perverse and potently wrong, or may have been induced by an error of the Judge. We adhere generally to this principle notwithstanding our large discretionary powers; first, on the constitutional ground of taking as little as possible out of the hands to which it has been primarily assigned by the Legislature; and secondly, because any undue interference may tend to diminish the sense of responsibility which it is desirable that a jury should cherish. We think, however, that, by our rectifying a jury's verdict in [57] a proper case, we shall increase not diminish, that sense of responsibility.'

4. The principles which guide the English Courts in deciding whether a new trial should be granted upon the ground that the verdict was against the weight of evidence were discussed in the recent case of Solomon v. Bitton L.R. 8 Q.B.D. 176; where the Court of Appeal said: 'The rule on which a new trial should be granted on the ground that the verdict was unsatisfactory as being against the weight of evidence ought not to depend on the question whether the learned Judge who tried the action was or was not dissatisfied with the verdict, or whether ho would have come to the same conclusion as the jury, but whether the verdict was such as reasonable men ought to have come to.'

5. The Judge, in his report referring the case to us, makes no complaint of the conduct of the jury on the ground of prejudice; he complains only that the verdict was against the weight of evidence, and he seeks to substantiate that complaint by calling attention to the answers given by the jury to certain questions put to them by him after they had returned their verdict. I shall presently refer to these answers.

6. Endeavouring to guide myself by the light of the principles laid down in the decision I have quoted, I have to ask myself,-Is this verdict, which is sought to be set aside, such as reasonable men ought to have come to? In order to answer this question it is necessary to consider what the prosecution were bound to prove against the accused in order to justify a conviction. It was incumbent upon the prosecution to prove (i) that the document alleged to have been used by the accused was in fact a forged document; (ii) that it was used by the accused; (iii) that, at the time it was used by the accused, they knew or had reason to believe that it was a forgery; (iv) that, at the time they used it, knowing or having reason to believe that it was a forgery, they did so fraudulently or dishonestly. If any one of these points was left in doubt, the jury were bound to acquit. A verdict of acquittal would be such as reasonable men ought to have come to.

7. The document, which was alleged to have been a forgery, was a hibabil-ewaz, or one of gift, purporting to have been executed in favour of the accused by their father Sadderuddin Kazee, and to have been registered by one Golam Eussool, Kazee of Jehanahad, on the 14th April 1854. Saddruddin Kazee died some ten or twelve years since, leaving the two accused, a daughter and a widow, the mother of his three children, him surviving. If the hiba was genuine, the widow and daughter were disinherited: if it was a forgery, the daughter became entitled to one-fifth of seven eighths of her father's property upon his death. The daughter, after her father's death, married one Aminuddin Kazee. The prosecution alleged that both the father's execution of, and the Kazee's certificate of registration endorsed on, the hiba-bil-ewaz were forgeries; but they did not charge either of the prisoners with the actual forgery. Nothing worthy of the name of evidence was forthcoming at the trial to prove that the father's signature was a forgery, and practically that point was abandoned by the prosecution. On the other hand there was an overwhelming body of evidence, proving beyond all doubt that Golam Eussool's certificate of registration was a forgery, and I am abundantly satisfied that it was a forgery. Thus the first point necessary for the prosecution to establish was established. The use of the hiba by the accused was also proved by their own admissions. Point the second has thus been established.

8. In order to establish the third point, which for brevity I will call a guilty knowledge on the part of the prisoners, the prosecution sought to prove that, after Sadderuddin's death, his widow lived in commensality with the accused; that the daughter enjoyed the property equally with them; that Aminuddin had tried to sell his wife's share to the accused; that not only did they not mention the hiba, but carried on negotiations for the purchase, which only fell through by reason of the accused not offering a sufficient sum; that the accused, after the negotiation's with Aminuddin had fallen through, knowing that he was treating for a sale to one Sheikh Budruddin, allowed the treaty to continue and said nothing about the hiba; that, after the sale to Budruddin had taken place, when he went to take possession, Dhunum Kazee told him that his (Dhunum's) brother was in Calcutta and would not return for fifteen days, when possession should be given; that, alter the expiration of fifteen days, Dhunum told him that lie would not give up possession; that when Budruddin sued the accused and their sister in the Munsif's Court, the accused, instead of producing the hiba, at once asked for fifteen days' time to put in their written statement, and, at the expiration of that period, asked for another adjournment, and subsequently for a third, and that it was not until after the third adjournment that the hiba was filed in the Munsif's Court. If these facts, or the more important of them, had been proved, I should have been of opinion that the jury, as reasonable men, ought to have come to the conclusion that a guilty knowledge on the part of the accused was established. But I am by no means satisfied that these facts, or the more important of them, were proved. They rested upon the testimony of Budruddin and Aminuddin. The former admitted that he had been imprisoned for three months for being in possession of stolen property: that he was on bad terms with the accused before his purchase from Aminuddin; that he had charged Khorshed with stealing a goat, which charge was dismissed; that since then he had had twenty or twenty-five civil suits with them; he also stated that Aminuddin was on bad terms with the accused. It is true that he says he still eats at the houses of the accused, but as I understand it is only in cases of the most bitter hatred that one Mahomedan will refuse to eat salt with another. Upon these admissions I am not satisfied with the truth of this witness's evidence. Aminuddin admits that he has had a suit with the accused, and that he is on bad terms with them, and that Budruddin used to assist him in his litigation with the accused; and though he says that three or four persons were present when he tried to sell the property to the accused, he cannot remember their names. I am not satisfied as to the truth of this witness's evidence. I am of opinion that the prosecution failed to prove a guilty knowledge on the part of the accused; and if I can see my way to this conclusion, how much more probable is it that the jury who had a full opportunity of judging of the credibility of the witnesses by observing their demeanour in the witness box, and how they went through their cross-examination, may have come to the same conclusion. It may, no doubt, be said, that the jury have not expressed any opinion upon the evidence of Budruddin and Aminuddin. It is sufficient to say in reply that their opinion was not asked, and as they found a general verdict of not guilty, I have a right to assume that this estimate of the evidence corresponded with the one I have formed.

9. This finding disposes of the case. I think it right, however, to deal with an argument that was advanced on behalf of the accused at the hearing before us. It was urged thus: 'The accused had a good defence to Budruddin's action without having recourse to the hiba. That being so, even assuming that the hiba was forged and used by the accused with a guilty knowledge, yet, as there was no legal necessity for their using it, they cannot be said to have used it fraudulently or dishonestly.' I am clearly of opinion that the use of the hiba under such circumstances was fraudulent.' The word 'fraudulently' is defined by Section 25 of the Penal Code thus: 'A person is said to do a thing fraudulently if Re does that thing with intent to defraud, but not otherwise.' It is to be observed that this definition of fraudulently 'differs entirely from that of' dishonestly as given in Section 24-'to do a thing dishonestly there must be the intention of causing wrongful gain to one person or wrongful loss to another'; and 'wrongful' gain is defined to be 'gain by unlawful means of property to which the person gaining is not legally entitled'; and 'wrongful loss,' as 'the loss by unlawful means of property to which the person losing it is legally entitled.' A general intention to defraud without the intention of causing wrongful gain to one person or wrongful loss to another, would, if proved, be sufficient to support a conviction. Maule, J. says in Reg. v. Nash 2 Dearsly's C.C.R. at p. 500. 'There may be an intent to defraud without the power or the opportunity to defraud,' and at p. 503: 'It is not necessary that any person should be in a situation to be defrauded.' I am further of opinion that, in such a case as was put in argument before us, the intent to defraud the party to whom the document was uttered (in this case Budruddin) was a necessary inference which the jury ought to have been directed to draw: Reg. v. Hill 8 C. and P. 274 and Reg. v. Cooke 8 C. and P. 582. Let a person's title to property be ever so good, yet if, in the course of an action brought against him to gain possession of the property, he uses by way of supporting his title, though there may be no necessity for the use of it, a forged document, such as this hiba, I am clearly of opinion that he uses it fraudulently.

10. It now only remains for me to notice the answers of the jury to certain questions put to them by the Judge after they had delivered their verdict. In reply to questions from the Court the jury stated as the reasons for their verdict: 'There is no proof to show when the registration certificate was forged,-i.e., whether before or after the document A (the hiba) was filed in the Munsif's Court. There is also no proof as to who forged the registration certificate,-i.e., whether forged by the father of the accused or by the accused themselves; and in the former case that the accused knew they were forged. They find that the registration certificate is a forgery, but not the executant's signature on the document.'

11. It was urged by the learned pleader who appeared for the Crown that these answers showed that the jury had come to very foolish conclusions upon the evidence, and that, in receiving their verdict, he ought to proceed upon the assumption that these foolish conclusions and these alone had induced them to return a verdict of acquittal. It may be that the conclusions are foolish, but I refuse to consider these answers at all, because I am of opinion that the Judge had no right to put the questions which called forth the answers. The Court is authorized by Section 263 to ask the jury such questions as are necessary to ascertain what their verdict is. In this case the jury had returned a plain, simple verdict of 'not guilty '; it may have been erroneous, but it certainly was not ambiguous, and the duty of the Judge was to receive it and record it without asking any questions about it.

12. For the reasons given above I am of opinion that the verdict of acquittal should stand.


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