1. The present appellants have been convicted on the unanimous verdict of the Jury--the appellant No. 1 Ahmed Ali under Sections 193 and 467/109, Indian Penal Code--appellant No. 2 Sayadutulla Khan under Section 193 read with Section 109 and under Section 467. Indian Penal Code, and appellant No. 3 Yusuf under Section 193 read with Section 109 and Section 467 read with Section 109. They have been sentenced under the earlier of these sections to rigorous imprisonment for three years and under the latter section to rigorous imprisonment for five years, the sentences running concurrently. I may observe that the Jury returned also an alternative verdict of guilty under Section 465/109, 465, 465/109 respectively against these appellants. The case against them was that they were concerned in the preparation of a certain borga kabuliyat which recites that the appellant Ahmed took a sub-lease from the appellant Yusuf of certain land which Yusuf, according to the recital, held under the landlord Joy Gobind Chowdhury. This document was presented for registration with the signature as an attesting witness of one Chittaranjan Chowdhury. The case for the prosecution was that none of the appellants had any title to the land and that the signature of Chittaranjan Chowdhury was a forgery.
2. Three main points have been urged against the charge delivered by the learned Judge to the Jury. The first is that he has wrongly explained to the Jury the law in respect to all the offences charged. In the second place, it is said that he has not sufficiently directed them as to the defence set up by the appellants; and in the third place it is said that he has adopted a wrong method in placing long extracts from the depositions of the witnesses before the Jury.
3. Now as regards the second of these points, we do not consider that it is of very great importance having regard to the view which we take as to the convictions under Ch. XVIII of the Indian Penal Code. As regards the third point, I may say that the learned Judge might have adopted a better method of putting new evidence before the Jury, and he might have arranged the matter with greater skill; but at the same time it is impossible to say that because he adopted the method which he did adopt, the Jury was in any manner misled in consequence.
4. The real objection to the learned Judge's charge is the first to which I have referred, namely, the mis direction which is said to have been given to the Jury on the subject of the law applicable to the particular charges.
5. As regards the charge under Section 193, Indian, Penal Code, it is urged that the material is insufficient to justify a finding that this document was prepared for the purpose of being used in any stage of a judicial proceeding. The purpose with which the document might have been prepared is a matter of inference and in dealing with this part of the case the learned Judge told the Jury that they would have to consider Ahmed Ali's intention in making in the kabuliyat this false statement viz., 'that you are the owner in possession,' and he went on to say 'you will ask yourself what is the natural intention of the offender who manufactures a false document with regard to land'; and he finally leaves it to the Jury to decide what that intention was. It seems to us that the inference that the intention was that the document in question should be used in a judicial proceeding even though such a proceeding had not in fact been instituted is a reasonable one; and that the verdict arrived at by the Jury in this respect is justifiable.
6. It is in respect to the direction given by the learned Judge as to the offences under Ch. XVIII, Indian Penal Code, that, in our opinion, the learned Judge has fallen into error. But it is not necessary in view of our opinion as to the conviction under Section 193 and our view as to the punishment inflicted, that I should do more than very shortly advert to the learned Judge's charge in this respect. It seems to us that on the two subjects the learned Judge has gravely mis-directed the Jury. In explaining Section 467, Indian Penal Code he said: 'Here the injury would be the deprivation of Chittaranjan of the right in land to which prosecution asserts he is entitled.' Then again when he was discussing the meaning of the expression valuable security he says in respect to the signature of Chittaranjun that it 'purports to be an acknowledgment that he accepts the kabuliyat and the proposals made therein. His signature when joined to the forged kubuliyat purports to be an acknowledgment that he has no certain legal rights.' That is distinctly wrong because the signature of an attesting witness does not fix that witness with knowledge of the contents of the document or with any liability under its terms. The learned Judge has fallen into a second error in discussing Section 463 Indian Penal Code. He says 'But the forging of the signature may be regarded as fraudulent, i.e., with intent to deceive since if the forged signature ever appeared before a Court it would deceive the Court and lead it to believe that the title of Ahmed or Yusuf was acknowledged by the over-landlord Chittaranjan which was not the case'. That is not a correct explanation of the words as they occur in Section 463 In this respect it is only necessary to refer to the observation of Mr. Justice Mookerjee in the case of Emperor v. Surendra Nath Ghosh 7 Ind. CAs. 629 : 14 C.W.N. 1076 at p. 1085 : 12 C.L.J. 277 : 11 Cr. L.J. 505 : 38 C. 75 which occurs at page 1085 Page of 14 C.W.N. The learned Judge there says 'The expression 'intent to defraud' (as it occurs in Section 463, Indian Penal Code), implies conduct coupled with intention to deceive and thereby to in jure; in other words' defraud' involves two conceptions, namely, deceit and injury to the person deceived, that is, infringement of some legal right possessed by him but not necessarily deprivation of property.' Having regard to this observation it is clear that the learned Sessions Judge did not properly explain to the Jury the bearing of the word 'defraud' upon the point at issue. For this reason we think that the conviction of offences under Ch. XVIII of the Indian Penal Code cannot be supported.
7. It has been argued, however, that the evidence does establish facts which in other respects would justify the conviction under this Chapter of the Indian Penal Code. We do not, however, think it necessary to go into this matter or to express any opinion upon it, because, as I have just now said, the conviction under Section 193, Indian Penal Code, is a good conviction and the punishment inflicted under it is in our judgment adequate. We, therefore, set aside the conviction, under Section 467/109 and confirm those under Section 193 and Section 193 read with 109.
8. The punishment that has been inflicted under these latter sections is three years' rigorous imprisonment. We have taken into consideration, however, the nature of the document in question. We think that it was not a very dangerous document and that we can safely reduce to two years' rigorous imprisonment which we accordingly do.