1. The accused Susen Behari Boy, together with his mother Swarna Sundari Dassi was tried at the High Court Sessions in May last by . my brother Mallik, with the aid of a special jury, upon three charges of criminal breach of trust laid, under Section 406, I. P.C., and a charge under Section 477, I. P. C, of secreting a document which was, or purported to be a will executed in 1915 by his father Gosto Behari Roy. Certain charges against the accused Susen, had been framed under Section 404, I. P. C, but these charges were withdrawn and need not be further referred to. The two accused were also charged with the offence of criminal conspiracy.
2. The jury, by their verdict negatived the charge of conspiracy and acquitted Swarna Sundari Dassi of all charges. They convicted the accused Susen upon all the three counts 'laid under Section 406, I.P. C, and also of the charges under Section 477. I. P.C. He was sentenced by the learned Judge to two years' rigorous imprisonment for criminal breach of trust and to four years' rigorous imprisonment for secreting his father's will. He has obtained a certificate from the Advocate-General to the effect that certain grounds of objection to his conviction should be further considered by the High Court.
3. It appears that the accused Susen has a sister whose name is Sarojbala who is a widow with one son called Basanta. His father Gosto made a will in 1914 but on 13th July 1915, executed another will revoking the former. This is the document with which the case is mainly concerned. By it, after providing for certain legacies, he left two-thirds of his estate to the accused Susen and one-third to his daughter Sarojbala. Gosto died on 6th January 1922, and on 13th February 1922 the accused Susen applied to the Subordinate Judge, 21 Perganas, for a succession certificate to enable him to collect moneys due from certain Life Insurance Companies in respect of policies which his father had taken out. On 8th March 1922 he gave evidence before the Subordinate Judge that his father had left no will and that he himself was his father's only heir. On 27th March 1922, a succession certificate was issued to him by virtue of which he collected the assets belonging to his father's estate mentioned in counts laid under Section 406, I. P.C.
4. The case for the prosecution was that from the time of the father's death until the year 1929 the will of 1915 was being kept by Susen in an iron safe belonging to his mother, that he knew of the existence of the will all the time, that he obtained the succession certificate by fraud and perjury and that he has converted the sums of money which he collected thereunder dishonestly to his own use. The prosecution case further is that in April 1929, Swarna Sundari had opened her own iron safe and taken out a bundle of papers; that she allowed Basanta to see them; that Basanta discovered the will of 1915 and abstracted it; that he. then showed it to his mother and to a pleader with the result that the dishonest conduct of the accused Susen came to light.
5. The case for the defence was supported by three witnesses and was as follows: That Gosto having made a will in 1914 and again in 1915 was taken ill in May 1921; that in August 1921 he went to the same solicitor who had drawn his previous wills and gave him instructions to draw another; that on 18th August 1921 a new will was drafted leaving everything to the accused Susen, save that his sister was to have maintenance or a certain allowance in lieu thereof; that in November 1921 Gosto left for Simultala for a change; arid that before he left he asked for his two former wills. That two documents were brought to him by Sarojbala as being his two former wills and he tore them up by way of cancellation; that he returned to Calcutta in the following month and died on 6th January 1922, without having executed the new will which he had intended to execute and that accordingly he died intestate. The defence case further is that so far from the accused Susen having any knowledge of the existence of the will of 1915 from the time of his father's death onwards he believed that this document had been destroyed and that his father had died intestate, that if the document now produced (Ex. 6) is really the document which his father executed in 1915 it is in existence solely by the fraud of Sarojbala who pretended to hand it up to her father for destruction in 1921 but secretly substituted something else.
6. It is evidence on the part of the prosecution that in February 1922 a Mr. Chatterji, Solicitor, at the instance of Susen submitted a case for the opinion of the then Advocate-General stating that the will of 1915 had been torn up by Gosto and obtained an opinion from the Advocate-General that on the facts stated in the case the father had died intestate. Accordingly it is denied that the application for a succession certificate was fraudulent and it is denied that there is any ground for the charge, that he had secreted the will of 1915. Two of the witnesses called for the defence, namely Nikunja Behari Roy and Nagendra Mohan Poddar, the former a younger brother of Gosto and the latter a servant of the family, speak to the incident in November 1921 when Gosto is alleged to have called for his two wills and tore them up.
7. The case presents all the usual features of a bitter family quarrel. The complainant in the case is Sarojbala whose moral character and credibility is elaborately attacked by the defence. The actions and conduct of the parties were canvassed at considerable length in cross-examination and upon many minor points of fact there was a complete conflict between the prosecution and the defence. The learned Judge in his summing up appears to me to have laid the main features of the evidence before the jury with complete lucidity and to have given the jury much assistance in making up their minds upon the main points in controversy. He told them in general terms the nature of the charges and laid bare the elements of the offence in each case. He summeried up the main facts and dates in such a way that the jury, were put in a position to consider whether the story of the tearing up of the will by Gosto in 1921 was to be believed or not, and whether or not the will of 1915 was all along in the iron safe to the knowledge of Susen. It is contended however for the accused that the learned Judge misdirected the jury in connexion with the charge of criminal breach of trust, and that his charge is insufficient on the question of secreting the will. Other points are covered by the Advocate-General's certificate, but I will deal with these two questions.
8. Upon the question of entrustment, the learned Judge directed the jury as follows:
If a person intermeddles with the estate of a deceased person he thereby makes himself an executor of his own wrong and by making himself an executor of his own wrong he imposes on himself the duty of a trustee. So if a person intermeddles with the estate of a deceased person ho constitutes himself an executor and in a way a trustee and there is on him a sort of self-imposed entrustment. But you must remember that this intermeddling or dealing with the estate of a deceased person if he is in the bona-fide belief that the estate is his, it will not constitute him an executor of his own wrong and therefore there will be no entrustment; so the whole thing will turn on the fact whether Susen bona fide believed himself to be the owner of his father Gosto's estate. If he bona fide believed himself to be the owner of that property his action in dealing or intermeddling with the estate of Gosto's would not constitute him an executor of his own wrong and there would be no entrustment. If on the other hand you hold that he did not bona fide believe that he was the real owner of the property after the death of Gosto there would be that intermeddling or dealing with the property that would constitute him. an executor of his own wrong. The question is a question of law. but its decision will turn on the question of fact whether Susen bona fide believed himself to be the owner of property or in other words whether he was under the impression that the will of 1915 had been torn. There is another aspect in connexion with the question of entrustment to which I will draw attention. If you believe what Saroju has told you, namely that she all along asked for her share in the property from the accused and the accused told her ' you will have your share, wait, don't get anxious' or words to that effect you may consider whether that was not in a way an entrustment. Did not Saroju thereby entrust the accused with dominion over property namely the one-third share which she-claims That is another aspect from which the question of entrustment may be, considered.
9. As regards the first part of this direction, I am unable, with the greatest respect to the learned Judge, to agree in this exposition of the law. Indeed I do-not think that the case made by the prosecution is in fact a case of criminal breach of trust. A person who intermeddles with the estate of a deceased or does any other act which belongs to the. office of executor where there is no rightful executor or administrator in existence is made accountable by the civil law to the extent of all assets which may have come to his hands. No doubt he may take credit for any assets which he hands over to the rightful executors and also for any payment which he may have made in due course of administration. The estate does not benefit from his wrongful act but is entitled to hold him liable to account for every penny which may have come to his hands. This however is not upon the basis of entrustment but upon the basis that not being entrusted, he had no business to intermeddle. The application of the doctrine in no way depends upon the absence of bad faith in the person intermeddling. The doctrine-has been put as follows:
The creditor is not obliged to seek for the root of any one's authority whom he finds in possession of the property which the deceased man left at his death. He may sue such a person upon the foundation of that possession only and in the event of bis doing so it will be on the 'defendant to show not guilty, that he did not in fact become possessed of the property in either one or more of the characters of heir, administrator or executor, but also to establish that he had a good title to hold it by some other right. If he is unable to do this the Court will hold him liable as of his own wrong to discharge the plaintiff's claim in the same way and to the same extent as if ho were actually clothed with one of the three characters which I have specified : Jegendra Narayan. Deb Roykut v. Emily Temple 2 Ind. Jur. (n.s.) 234.
10. The property which is the subject-matter of the counts under Section 406, I. P. C, was claimed and obtained by Susen as-property to which he was- himself entitled as being his father's heir. As the will of 1915 has not yet been admitted to probate there may be a difficulty in saying that Susen could have been convicted of criminal misappropriation in respect of these assets under Section 403. We have seen that charges under 'S. 404 of the Code were framed, but were withdrawn. It may or may not be upon the facts disclosed by the prosecution case that Susen was guilty of the offence of cheating and it would certainly seem that upon the prosecution case he was guilty of perjury in his evidence before the Subordinate Judge upon his application for a succession certificate. But in my opinion it is not sound to hold that he was guilty of the offence of criminal breach of trust upon the basis that he became an executor de son tort and this portion of the charge of the learned Judge to the jury amounted to a misdirection.
11. As regards the latter portion of the direction which I have cited, I am content to say that I see some difficulty in that portion also. I doubt whether it was open to the jury to hold that because the accused said to his sister:
you will have your share, wait, do not get anxious
or words to that effect, he became a person whom Sarojbala had entrusted within the meaning of Section 406. It is not necessary however to examine this matter further. We are unable to say whether the verdict under Section 406 was given upon the basis of the former or the latter portion of the direction to which I have referred and in my judgment the convictions and sentences in respect of the charges of criminal breach of trust must be set aside.
12. I come now to consider whether the learned Judge's charge was sufficient upon the question of secreting the will of 1915. The word 'secrete' occurs in the Penal Code not only in Section 477 but in this section we may observe that it is coupled together with such words as 'cancels' 'destroys,' 'defaces.' In Section 204 it is provided that
whoever secretes or destroys any document which he may be lawfully compelled to produce as evidence in a Court of justice, or in any proceeding lawfully held before a public servant, or obliterates or ronders illegible the whole or any pare of such document with the intention of preventing the same from being produced or used as evidence before such Court or public servant, etc.
commits an offence. In Subramania Ghanapati v. The Queen  3 Mad. 261 a suit had been referred for arbitration to ascertain the amount due to the plaintiff. One of the witnesses having stated that the payment of a certain sum was endorsed on the bond the bond ' was fetched and placed on the floor beside the arbitrator. The accused, who was the defendant; objected to the bond being shown to the witnesses-but the objection was overruled by the arbitrator. Upon this the accused suddenly took up the bond and rani out of the house with it. He was followed and requested to return but declined to return and went away. Turner, C.J. said:
The obvious inference from the circumstances is that, considering himself aggrieved by the decision of the point against him, he determined to prevent effect being given to it, and with that intention removed the document, and subsequently refused to produce it. He has-been guilty of secreting a document he may be lawfully compelled to produce in evidence before a public servant, an offence punishable under Section 204, I. P.C.
13. Again in Queen-Empress v. Muhammad Shah Khan  20 All. 307 a report of the commission of a dacoity was made at the thana. The police officer in charge of the thana took down the report but, subsequently destroyed 'that report and' framed another and a false report of the-commission of a totally different offence-to' which he obtained the signature of the-complainant and which he endeavoured to pass off as the original and correct report made to him. He was convicted' under Section 204, I. P. C, for having secreted or destroyed the first signed report. In my opinion, it is reasonably clear that a person may secrete a document not only when the existence of the document is unknown to other persons and for the purpose of preventing the existence of the document coming to the knowledge of anybody, but also when the existence of the document is known to others. In the latter case he may secrete it for the purpose, for example, of preventing it being produced in evidence or for the purpose of raising difficulties in the way of its being produced in evidence. But it is not necessarily enough to show that upon an occasion upon which it became his duty to produce the document, he failed to discharge that duty, though this may be a cogent piece of evidence in certain circumstances. The fact that a man perjures himself by denying the existence of a document which to his knowledge is in his custody would be a still more cogent piece of evidence. But whether the offence of secreting the document is committed or not must depend in each case upon the facts.
14. Now, the complaint made by the accused before us is that the learned Judge in his charge to the jury has not mentioned as a relevant and important circumstance to be considered by them under Section 477 of the Code, the evidence . given on the part of the prosecution to the effect that long before 1929 the existence of this will was well known to Sarojbala and well known to other persons. She was the person chiefly interested in setting up this will. According to her she and the whole family had known of its existence from the beginning. According to her Susen had never denied the existence of the will, had repeatedly promised her that she would have the share bequeathed to her thereby. After the father's death the will remained in the mother's iron safe, that is to say in the place where one would expect it to be, unless and until it was produced for probate. No evidence is given to the effect that the accused had removed it from one place and put it in another where it would not have been found. These circumstances, it is said, would not necessarily prevent the jury from finding the prisoner guilty, but they were circumstances which it was very necessary to lay before the jury if a correction under Section 477 was to be obtained. The learned Judge had so many matters of controversy to canvas in the course of his charge and he has laid so many of them before the jury in an unexceptionable way, that I am most loath to uphold any objection to this charge upon the ground of non-direction; but upon a careful perusal of the charge, it seems to me that, while it is full and clear upon the question whether the jury should believe or disbelieve the story that the will had been torn up, or that the father had thought he had torn it up, the considerations that would arise if this portion of the defence were rejected were not so fully dealt with. The jury were told that for the establishment of a charge under Section 477 there must be two ingredients secreting the will or a document purporting to be the will and dishonest or fraudulent intention.
15. But I cannot find that the circumstances bearing upon the question whether the accused should be held in this case to have secreted the document were marshalled for their assistance. Broadly speaking on the one hand the jury would have to consider in favour of the accused the fact that the existence of the will was well known to the family, that it was well known to the person chiefly interested, that she was constantly referring to it, that the accused never denied' its , existence to her, that he never removed it from one place to another and that he left it all the time in the place in which it would most naturally be sought for. On the other hand there were the circumstances that he did not produce it for probate, that he had obtained a succession certificate and that he had denied the existence of the document saying that it had been torn up by his father. To weigh these considerations one against the other was the function of the jury and the jury had to discharge this function in a case which was overladen with controversy and contradiction as regards the essential facts.
16. I think upon the whole that it was necessary that these circumstances should have been disentangled and that upon the hypothesis that the jury would discredit the defence story of the cancellation of the will, these considerations should have been laid bare to the jury with a certain amount of explanation or comment. The charge of the learned Judge, admirable though it is, does not in my opinion go quite far enough in the sense that it does not deal sufficiently with the considerations that arise after the positive case made by the defence has been put on one side. I therefore think that the conviction and sentence under Section 477, I. P. C, should be set aside.
17. In this view, the accused should be acquitted and discharged.
C.C. Ghose, J.
18. I agree.
19. So do I.
20. I agree that my exposition of the law on the question of entrustment in the present case was not quite correct. I do not however feel so sure on the question of secreting the will. Suppression of a document may amount to secretion in my opinion. Undeniably there was suppression of the will in the present case when Susen obtained the succession certificate on the allegation that his father had left no will. In view however of the fact that all the circumstances bearing on this part of the case were not presented before the jury with that amount of fulness which was perhaps necessary, I would not differ from the learned Chief Justice in the order which he proposes to make in this case.
20. I agree with the learned Chief Justice.