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Queen-empress Vs. Itwari Saho - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1888)ILR15Cal269
Respondentitwari Saho
Cases ReferredThe Queen v. Nobin Chunder Banerjee
verdict of jury - sessions judge, opinion of--criminal procedure code, section 307--high court, power of. - .....on the note the endorsement (exhibit w), which is written on it, and which is as follows : 'note sold by saniehar saho teli to lakha saho, note sold by lakha saho, to damri saho and sanichar saho.' this is all one entry (as the translator calls it), and there is no date to it. as to this endorsement, the jury, upon the evidence, have unanimously found that the note was never in lakha saho's possession, and that sanichar teli never sold it. there can be no doubt that w is a forgery.4. witnesses nos. 5 and 8 corroborate lalla as to w's having been already on the note when the sale took place, and also as to the fact of x having been written by prisoner, and, as to the latter, no. 7 does the same. but no. 5, tita ram, in his evidence mistook w for x, and identified w as the.....

1. This case comas before us under the provisions of Section 307, Criminal Procedure Code. The charge against the prisoner was that on April 1st, 1885, he, at Naga Serai, Behar, dishonestly sold as genuine a forged valuable security which purported to be a currency note for Rs. 50 issued on behalf of the Government of India, which he knew or had reason to believe to be a forged document, and thereby committed an offence against Sections 467-471, Indian Penal Code.

2. The prisoner was committed for trial on March 31st, 1887. He was tried at the Patna Sessions on the 16th, 17th and 18th June 1887. There was no question seriously raised as to the fact that the note, which the prisoner was charged with having dishonestly sold, was a forgery. The jury unanimously found that it was, and the appearance of the exhibit leaves no doubt of this. The questions raised in the case were : (1) whether the prisoner sold the note as alleged; and (2) whether he did so knowing, or having reason to believe, it to be forged. The findings of the jury, to which we shall presently refer in detail, amount, in effect, to an acquittal by a majority.

3. The prisoner has two brothers, Damri and Sanichar. By them, jointly with him, a business in the name of Damri Ram, Sanichar Ram was carried on in Behar in Bardari Bazaar where they had a place of business, and also in Luckhiserai. The prisonerwas the only one of the three who could write. It is in evidence that he habitually wrote for the firm in the business carried on by them. He frequented Behar, where he was well known. He was chiefly in Luckhiserai, where their principal place of business was, but be travelled about from place to place in the transaction of business. Lakhaprosad or Lallaprosad, the principal witness for the prosecution, is a cotton-seller in Behar. He deposes to having purchased the forged note from the prisoner. He says be has known the prisoner for 10 or 15 years. He had never before this occasion purchased notes from him, but had done so from his brother Damri Ram. He says prisoner came to his house, which is about a mile from his (Lakha's) shop and near to the prisoner's house, in Behar, and offered him the note for sale; that he agreed to buy it, and asked prisoner to endorse it, but as he had no ink in his house, he took him to the house of Bandu (witness No. 4); that Bandu had no pen and ink, whereupon they went to Tita Ram's (witness No. 5), and that the prisoner endorsed the note at that place in the presence of Tita Ram, Monohar Dass and Dipu Halwai (witnesses Nos. 6 and 7). He says he then paid prisoner the Rs. 50, took the note, and went to his shop, meeting on the way, while prisoner was still with him, Uzir Makouri (witness No. 8), who, he says, was told then of the purchase, and who in his evidence says that he then saw the note, and the endorsements on it, in the street. Lakhaprosad says he never saw prisoner after this. The endorsement (Exhibit X) said to have been made by prisoner on this occasion is as follows : 'They are 'note' sold by Damri, Ram, Sanichar Ram, Tari of Bardari, to Lall Ram.' There is no date to it. The witness says that at the time of the sale there was already on the note the endorsement (Exhibit W), which is written on it, and which is as follows : 'Note sold by Saniehar Saho Teli to Lakha Saho, note sold by Lakha Saho, to Damri Saho and Sanichar Saho.' This is all one entry (as the translator calls it), and there is no date to it. As to this endorsement, the jury, upon the evidence, have unanimously found that the note was never in Lakha Saho's possession, and that Sanichar Teli never sold it. There can be no doubt that W is a forgery.

4. Witnesses Nos. 5 and 8 corroborate Lalla as to W's having been already on the note when the sale took place, and also as to the fact of X having been written by prisoner, and, as to the latter, No. 7 does the same. But No. 5, Tita Ram, in his evidence mistook W for X, and identified W as the endorsement written by prisoner, and the evidence of all the witnesses, Nos. 4 to 7. who depose to having witnessed the sale, and of No. 8, who saw the note in the street, is open to damaging comment, as showing a recollection, strangely minute and precise, of circumstances which occurred long ago, and which there was no reason for their committing to memory.

5. The witness Lakhaprosad says that, on the purchase of the note, he at once despatched it in a registered cover to his servant, Tara Ram, to Rajapore in zilla Banda, with other notes of Rs. 10 each, amounting in all to Rs. 140. Tara Ram stays at Rajapore at the place of business of one Nowrattan with whom Lakha has dealings. Lakhaprosad says that at the time he despatched the notes he made an entry (Exhibit H in the case) in his book. It is as follows: On a page headed 'account with Nowrattan Das, Dwarikaprosad of Rajapore, Sambat 1941 Rs. 140, second day of the first part of Baisakh, Rs. 50 note purchased from Damri, Sanichar, Itwari Suris of Bardari, one note No. 26,150 small number 89, Rs. 90, nine notes. He says the object of that entry was to show what notes he despatched to that firm in payment of any purchases. The note bears an endorsement (Exihibit Y in the case) 'Lall Pershad by the pen of Tara Ram.' There is no date to it. The endorsement is in Tara Ram's handwriting. It is followed by an endorsement in these words : 'Signed by Nowrattan Ram, Dwarikaprosad by the pen of Ramnarain Gomastha,' no date. There is no proof as to the handwriting of this entry. With reference to the date of Exhibit H, second day of the first part of Baisakh, Lakhaprosad says this would be 1942. The entry comes after entries for Chait 1941. That would be on or about 1st April 1885. A number of entries of purchase of notes follow this entry. The firat is 11th Baisakh. All, save one, record the number of the notes purchased as H does.

6. The note was found to be forged, and in July 1885 the police visited Lakhaprosad's shop in Behar. He showed them Exhibit X in his book, went with them to the thannab, was there shown the note, and said he had sent it to Rajapore: that he had bought of Damri Sanicbar and Itwari (the prisoner), and that Itwari was the person who actually sold it. Search was then made for Itwari, but he was not found until March last, when he was arrested by the chowkidar of Luckhiserai, at Kugra, eight miles from that place.

7. The evidence as to the fact of the sale by the prisoner is that of the witnesses we have above referred to, Lakhaprosad, and witnesses Nos. 4, 5, 6, 7 and 8, who corroborate him; Nos. 5, 6 and 7 depose to having seen prisoner endorse the note No. 8, Uzir Saho, who met Lakha and prisoner in the street, says he then saw the endorsement. He says, too, that he knows prisoner's writing well, and that X is in his handwriting. There was contradictory evidence as to whether W was in prisoner's hand or not.

8. As to guilty knowledge, the fact, if proved, that W, the forged endorsement, to prisoner's firm, was on the note when he sold it, would be conclusive if unexplained. A part of the case for the prosecution was that prisoner had absconded when it became known in Behar that the note had been found to be forged. This was about three or four months after the sale by him is said to have taken place. His absconding under these circumstances, and keeping or being out of the way until arrested one and three-quarter year afterwards, would strengthen, if unexplained, the presumption of guilty knowledge. The prisoner was defended by two vakeels.

9. He called no witnesses. He simply denied the sale and said he had been separate from his brother for three years.

10. The case was, we think, explained to the jury in satisfactory manner by the Sessions Judge. The jury, after retiring for half an hour, returned, and in answer to questions put by the Court, the foreman stated: They were unanimous the note was forged. Three found it not proved that prisoner sold the note; not proved that X was written by him. Two found that he did sell the note and wrote X when he sold it. Three found it not proved that he absconded; two found it proved that he did. Four found that W was written by the same hand as X; one found the contrary. The two who found prisoner did sell the note had come to no finding whether he did so knowing it to be forged. They were then desired to retire; the two, who found prisoner had sold the note, to find whether he did so, knowing it to be forged; and as to all the jury, for a finding whether the sale to Damri Sanichar stated in W took place. In answer the foreman said : 'Only one, myself, finds it proved that accused when he sold the note knew it to be forged,' They all found that the sales stated in W never took place. These findings amount to an acquittal by a majority. With this the Judge wholly disagrees, and submits the case under Section 307.

11. It is argued for the accused that the verdict cannot be set aside unless it can he shown to be perverse and manifestly wrong, and that as there are certainly infirmities in the evidence for the prosecution in the present case, the jury cannot be said to have been perverse in rejecting the whole case made against the prisoner. The Empress v. Dhunum Kazee 9 C. 53, Queen-Empress v. Mania Dayal 10 B. 497, and Soloman v. Bitton L.R. 8 Q.B.D. 176, were cited by the pleader for the accused. The vaksel for the prosecution relied on Empress v. Mukhun Kumar 1 C.L.R. 275 amongst others. The Empress v. Dhunum Kazee 9 C. 53 and Queen-Empress v. Mania Dayal 10 B. 497 were cases in which the Court did not disagree with the verdict. In each case, the Court, on the whole, approved of the verdict. They are not authorities for the position that the Court, although disagreeing with the verdict, will not set it aside unless it appears to be perverse. In Beg v. Khanderav Bajirav 1 B. 13 West, J., says, referring to Section 263 of the former Code of Criminal Procedure : * * * 'The whole case is opened up, * * * the functions of both Judge and jury are cast upon the Court and this differentiates our position very widely from that of the Courts in England.' That very learned Judge adds : 'Notwithstanding this difference however * * * * * 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 or patently wrong, or may have been induced by the error of the Judge. We adhere generally to this principle, notwithstanding our large discretionary powers.' We think that the argument founded on these words may be pressed too far. No doubt, the manner in which English Courts deal with the verdict of a jury in civil cases, as for instance Belcher v. Prittie 10 Bing. 408 must always to some extent assist the Courts in this country in the exorcise of the duty imposed upon them by law of considering under Section 307, in criminal cases, the verdict of a jury here: a body similar in some respects to the jury in England and intended, so far as can be, to discharge similar functions. But we think the degree of influence to be given to this consideration must depend in some measure upon the closeness of the analogy which may exist between the nature and functions of the English and of the Indian tribunals. Apart from the circumstance that the English law on this subject relates to civil, and the Indian to criminal cases, exclusively, the analogy is not always a close analogy. The unanimous verdict of a jury of twelve is in respect of weight a different thing from the decision by a majority or even from the unanimous decision of a body of five or seven or nine. The Indian Courts are expressly made Courts of Appeal on facts; the functions of the English Court in this branch of the law go no higher, in cases where verdicts are set aside, than the ordering of a new trial. The present Lord Chancellor says in the last case decided in the House of Lords on this subject--Metropolitan Railway Co. v. Wright L.R. 11 App. Cas. 156 : 'If a Court not a Court of Appeal in which the facts are open for original judgment, but a Court which is not a Court to review facts at all, can grant a new trial whenever it thinks that reasonable men ought to have found another verdict, it seems to me that they must form and act upon their own view of what the evidence in their judgment proves.' We refer to the passage, because it marks in vigorous language, in the early portion of it, the distinction between the two classes of tribunals to which the English and the Indian Courts do, in this matter respectively, belong; and perhaps in the latter indicates that Courts which have to decide on facts can hardly abstain from examining all the evidence and forming their own view of it. The case in which these observations were made seems rather to modify the terms of the old English rule as stated in Reg v. Khanderav Tajirav 1 B. 13. The word 'perverse' is no longer approved. Lord Fitz Gerald in The Metropolitan Railway Co. v. Wright L.R. 11 App. Cass. 156 says: 'If my recollection does not mislead me, we have departed in this house in several instances from the old rule which introduced the element of 'perversity,' and have substituted for it that the verdict should not be disturbed unless it appeared to be not only unsatisfactory but unreasonable and unjust. The question, thus, for your Lordships' consideration is whether the evidence so preponderates against the verdict as to show that it was unreasonable and unjust.' Lord Herschell, L.C. says : 'The verdict ought not to be disturbed unless it was one which a jury viewing the whole of the evidence reasonably could not properly find.' A rule which should apply by analogy to the consideration of eases under Section 307, the principle laid down by the Lords, would seem somewhat less peremptory and confined than one framed upon the terms of the older cases. But we own that we should find it difficult, apart from any authority in this Court, to hold (at any rate as to Section 307) that any rule founded upon such an analogy should be adopted in restriction of the exercise of the discretion of the Courts. There is an essential difference between the functions of the Courts in the two cases. The English Court has no power of finding on facts in any case. That is a power expressly given to, or rather imposed upon, the Indian. A complete analogy between the two will arise, if the latter refuses to exercise that power. In Beg v. Khanderav Bajirav 1 B. 13 it is to be observed that the language of the Court is very carefully guarded, more so than that which has been (at least in the head-notes of cases) subsequently used,--'we desire to be guided, as far as may be, by the analogies of English law,' 'we adhere generally to this principle;' and later on 'it is our duty to satisfy ourselves that the verdict is proper or at least sustainable.'

12. In Mukhun Kumar 1 C.L.R. 275 four oases are referred to by Markby, J., in his judgment--The Queen v. Ram Churn Ghose 20 W.R.Cr. 33; The Queen v. Sham Baqdi 13 B.L.R. Ap. 19 : 20 W.R. Cr. 73; The Queen v. Haroo Manjhee 14 B.L.R. Ap. 2 : 21 W.R. Cr. 4; The Queen v. Wuzir Mundul 25 W.R. Cr. 25. There was one not referred to by him--The Queen v. Nobin Chunder Banerjee 13 B.L.R. 20 : 20 W.R. Cr. 70. In the first and fifth of these cases, the verdict of the jury was set aside. In the second and third, in which there does not appear from the short reports to have been argument in Court, the verdict was sustained, In the fourth, Wuzir Mundul's case the Court expressly agreed with the jury and sustained the verdict. In these cases the learned Judges expressed substantially the same view, which, to use the words of the last case, Wuzir Mundul's, is that 'the verdict of a jury should not be interfered with, except where there is a gross and unmistakeable miscarriage of justice.' Markby, J., while agreeing generally with the opinions expressed by the learned Judges in these cases, points out that 'we cannot lay down any fixed rules for the exercise of the discretion' of the Court. Chief Justice Garth in his judgment dissented from the view taken in Wuzir Mundul's case. He states his opinion as follows : 'in the consideration of this case two questions have suggested themselves to my learned brothers and myself, which appeared to be of very general importance, First, how far this Court is justified, in a case referred under Section 263 of the Criminal Procedure Code, in convicting a prisoner contrary to the express and unexplained finding of a jury; and, secondly, whether this Court has power under that section to order a new trial. With regard to the first of those questions, 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, ought always, in my opinion, to command its proper weight; and the more unanimous their verdict may he, and the less likely to have been induced or 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 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 has 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 Mr. Justice Macpherson and Mr. Justice Morris in Wuzir Mundul's case 25 W.R. Cr. 25 'that the verdict of a jury should not be interfered with, except whore 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 to the yerdict of the jury its proper weight. Bach case in my view of the section should depend on its own circumstances.' We agree in thinking that this passage states, as closely as it would be safe to do, the sort of weight which should be given to the verdict of a jury in a ease referred under Section 307; and would but add to what is said by the Chief Justice this further consideration that, having regard to the terms of the section, the opinion of the Judge, who has had as well as the jury, an opportunity of observing the witnesses, and has also had an opportunity of watching the whole course of the trial, must have due weight given to it.

13. In Mukhun Kumar's case the Court set aside an acquittal, convicted of murder, and sentenced the accused to be hanged. It was in every way a decision which must be supposed to have been present to the mind of the Legislature when the new Code of Criminal Procedure was passed. There is no indication, however, in that Code of any intention that the discretion of the Court should be limited in the manner approved of in some of the older oases, and disapproved of in Mukhun Kumar's case; and we think that the Legislature must have intended that the powers conferred by Section 307 should be fully--as they must, no doubt, be cautiously--exercised. We have referred to a large number of unreported cases under Section 263 of the Code of 1872, subsequent to 1878 and under Section 307 of the present Code of 1882, the latest being in February of this year before Pethoram, C.J., and Cunningham, J., with the result that the Judges have not expressed themselves so as to limit the exercise of the discretion of the Court in each case coming before it.

14. We have given in this case full weight to the verdict, and to the opinion of the Judge and the reasons given by him for it; and we now state our opinion. Upon the cardinal point in the case, namely, the sale by prisoner, the Judge and two jurors hold it proved. The three other jurors say it is not proved. We think the latter are wrong. We have considered the evidence with care, and we think their view can only be justified by attributing an excessive weight to those unfavourable comments to which, to a certain extent, the evidence for the prosecution is open. Tita Bain's evidence, no doubt, is discredited. The evidence of Monohur and of Wazir, as well as that of Tita Ram, is auspiciously minute. But in this country it is not always safe wholly to discard evidence, a part of which may be open to suspicion. It may be that the details given by the witnesses for the prosecution of the circumstances of the sale are suggested to them by one who remembers the transaction better than they can do. But it is not unlikely, if the sale did take place, that they should have some sort of recollection of it. The 'goolmal' about the note occurred not very long--about three or four months--after the alleged sale, and caused much stir in Behar. We cannot see any good reason for wholly rejecting these witnesses, though we should not rely on their evidence alone. But without it, we think, the case against the prisoner is supported by strong evidence. The names of Damri and Saniehar were certainly on the note when it was sent by Lalla to Rajapore, in the district of Banda. There can be only one conjecture, and it would be only a conjecture, suggested as a reason for doubting this part of the case, namely, that Lalla himself is guilty. But this, apart from anything else, is negatived by his acts at the time. He puts the note in circulation in his own name, through his servants in Rajapore. He records the number of the note in his book. We have examined the entry H closely; we have heard it criticised in argument. We see no reason to doubt its genuineness. When the note is found to be forged Lalla at once admits that he sold it. He says at once he got it from prisoner. Either Itwari's name is fraudulently inserted in H by dalla, to support this story, or H strongly corroborates him. Now if Itwari's name was so inserted, it can only have been by writing the whole page over again. An examination of the page, and of the position of Itwari's name in it, where it is partly in one line and partly in another, and where the entries all fit in exactly, shows this. What time was there for Lalla to do this? Supposing he had time and opportunity to do it, why should he do it? Why not name Damri and Sanichar

15. If Lalla's story is false, he must, unless he is in league with the police so as to have had an opportunity given him of concocting H, have heard of the notes being forged before the police went to his house, have prepared H for the purpose of charging Itwari, have had his story ready then, and have then, or since, secured the complicity of the other witnesses in a nefarious conspiracy. Why should he? There is no reason suggested for his naming Itwari untruly. Assuming it to be a matter of absolute indifference to him, whether or not he commits forgery, perjury and subornation of perjury, why should he take all this trouble? Again the note, after having passed through several hands, was stopped by the Bank at Luoknow. It is not suggested that Lalla had any dealings or communication with Lucknow, and therefore it is very unlikely that he heard more of this note after he despatched it until it was put into the hands of the police.

16. In expressing dissent from a conclusion upon facts come to by other minds, we are indisposed, when we can avoid it, to use epithets as a mode of signifying that dissent. We should not say that the three jurors are either perverse, or manifestly wrong, or unreasonable. But we do say, that we think the evidence so much preponderates against their opinion, that we disagree with their verdict. We think it proved that Itwari sold the notes. We also agree with the two jurors who found that he had absconded. The evidence, we think, proves this. We cannot account for the negative finding on this point of the other three save on the supposition that they supposed that to establish this it was necessary that proof should be given that he had been actually seen in the act of absconding, which is not the case. His absconding, under the circumstances, is itself strong evidence of guilty knowledge. But W. is conclusive. It is immaterial whether he wrote it or not. It seems probable that he did, though he should not find against the opinion of the jurors on this point. But he sells a note purporting by an endorsement on it to have been sold to his firm, and it is proved that it was not sold to his firm by the persons named in the endorsement. The conclusion is irresistible. Upon the evidence, we find that ha sold the note knowing or having reason to believe it to be forged. We convict him, therefore, under Sections 467 and 471, Indian Penal Code. As to the sentence, the offence is a very serious one, and is calculated to do almost incalculable injury to the public. For the protection of the mass of the trading community whose whole business would become disorganised by such a crime as this unless severely repressed, we think it necessary to impose a very severe sentence, and we sentence Itwari to rigorous imprisonment for seven years.

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