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Ambar Ali and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal;Property
CourtKolkata
Decided On
Reported inAIR1929Cal539
AppellantAmbar Ali and ors.
RespondentEmperor
Cases ReferredBarindra Kumar Ghosh v. Emperor
Excerpt:
- .....engaged with one or more persons in a conspiracy for doing an illegal thing. so far as those three accused -- accused 2, 3 and 4 are concerned i cannot see that there is any objection to the direction which the learned judge gave to the jury. the only difficulty is as regards accused 1. he may say:i was charged under section 467. i know that the other accused werecharged with having conspired with ma because they were charged under section 109, but i did not know that i was charged with having conspired with them.17. that is not a very sensible objection, but, in point of fact, in this case one finds, when one looks at the evidence before the munsif, that the main story is told by ambar ali accused1 himself, and that even if it be supposed that it was a wrong direction to tell the jury.....
Judgment:

Rankin, C.J.

1. In this case the four accused were put upon their trial in connexion with a charge of forgery. The instrument charged as forged is a kabuliat (Ex. 1) dated 21st September 1921, which purports to have been executed by Md. Sabdar the complainant and his brother Md. Malik recently deceased and to be a conveyance of one Malaem of five annas share of land near Malaem's house.

2. The first accused Ambar Ali was charged with forgery of the document, he being the scribe of the document. The other three accused Bidyananda Das, Har Mohan Das and Abdul Hakim were committed by the Magistrate on a charge of forgery but were charged before the Sessions Court with abetment of forgery under Section 467/109, I.P.C. These three accused purport to have been witnesses to the document.

3. The signature of Sabdar on the document purports to have been put by accused I as scribe. The signature 'Md. Malik' in the document purports to have been written by Md. Malik himself.

4. The complainant's case as to the land in question would appear to have been fully proved by the documents and it is as follows: that the five annas share which as the kobala the subject of this charge purports to transfer was the share which Sabdar and Malik had inherited from their father, that there was another five annas share which had belonged to one Noaz whose representatives, that is to say, son and grandson are Md. Fakir and Abdul Hashim, that this five annas share had been transferred in the lifetime of Noaz to the complainants' father so that the complainant Sabdar and his brother Malik owned at the time in question not five annas share, that as regards the remaining six annas that had belonged at one time to a man called Abbas who appears to be a brother in-law of accused 1 but Abbas had sold it to Niamatulla and this man Niamatulla appears to have taken a lease of the share of Sabdar and Malik and in addition to his own charge possessed the land as a whole.

5. The complainant denies that he ever executed the document, that he can sign his own name and he does sign his own name. He says that his brother Malik is illiterate and cannot sign his name. He gives evidence that he has plenty of land and was in no need to sell this land and it is quite clear that from the moment this kobala came to his notice he objected at once and registration was never made. These facts sufficiently explain the circumstances that against all the four appellants the jury brought in a unanimous verdict of guilty; and we have to consider whether the learned Judge's charge is one which enables this Court to uphold that verdict.

6. As part of the history of the case I will mention this point, that when the complainant discovered that this kobala had been brought into existence, he at the same time discovered that another kobala had been brought into existence purporting to be dated on the previous day. This second kobala is Ex. 11 and that kobala purports to have been made by accused 1 as the scribe and to be witnessed by the other accused with the exception of accused 3. That Kobala is one by which Fakir and Abdul Hashim the representatives of Noaz purport to have transferred to Molaem the five annas of this land, which is already explained, Noaz had in 1910 parted with in favour of the complainant's father.

7. These two documents being discovered registration was opposed. The registration appeal resulted in two suits before the Munsif. These two suits were tried together, one set of evidence being given with reference to both, and all the accused gave evidence for the plaintiff in those suits. They describe (how at Fakir's house the first document, (Ex. 11 was executed), how the complainant Sabdar had come along and said 'what about selling my land' and how, in consequence, on the next day Sabdar and Malik entered this kobala transferring their share to Molaem.

8. In this appeal Mr. Chatterjee for the accused persons says that the course taken is open to objection. The course taken was first of all that the deposition of each of those persons was put in evidence for the prosecution. Not only so but Abdul Hashim was called to deny that Ex. 11 was a genuine document or had been executed by the alleged executants.

9. The story as regards the forgery of Ex. 11 was put before the Jury and the learned Judge told the Jury that if they had reason to believe that there was a conspiracy on the part of all these accused to forge the kobala Ex, 1 then they could use the evidence given in the Munsiff's Court by one of the accused against the other. The defence of the accused in the case was that this kobala was genuine and under Section 342 of the Code one and all of them said that the evidence which they had given before the Munsiff was true.

10. The first point that is taken for the accused in this appeal is that the depositions before the Munsiff were not admissible evidence for the prosecution in this case. The question is why are they not admissible evidence for the prosecution in this criminal case? The argument as I understand it is that these depositions are really confessions and it is said that as they were given before a Court of law they were not really voluntary and for those reasons the depositions are not evidence. The Evidence Act proceeds to my mind upon a principle which has often been referred to before now that the term 'admission' is usually applied to a civil transaction and to those matters in criminal cases which do not involve a criminal intent, while the term 'confession' is usually used in a criminal Court as denoting an acknowledgment of guilt. From time to time it has been contended -- and I understood Mr. Chattarjee to contend that for the purposes of criminal law 'admission' and 'confession' are much the same thing, and there are no doubt, as the cases show, circumstances in which it is difficult to say whether or, not a statement is to be regarded as admissible as being a confession or not. That question usually arises in the case of a statement made to a police officer or in the case of a statement made by a man while in custody of the police.

11. Then it becomes important to see whether the statement is to be regarded as a confession or may be proved in evidence on the footing that it is not a confession but is an admission. In my judgment, there can be no doubt at all that the idea that the criminal law as regards evidence makes no difference between a 'confession' and 'admission' is erroneous. Any such doctrine is much too broad and I will refer in this connexion to the judgment of Carnduff, J., in the well-known case of Barindra Kumar Ghosh v. Emperor [1910] 37 Cal. 467. In the present case it would to my mind be almost extravagant to say that these statements are confessions, if only for the reason that every one of these accused as his defence has said that these statements are true, they constitute his defence. I have no doubt further that, as the story told by these people is a story which means that they are honest and the document is genuine, it cannot in a forgery case be said to be a confession at all. I need not therefore enquire into the question whether evidence given before a Court of law is evidence of such a character that it is not voluntary so as to make a document which is a confession, inadmissible under Section 24 That question does not arise.

12. Again, these depositions may be considered from the point of view of admission. It may he said that these depositions are put in to show that these people did make these documents between them. That is an important fact for the prosecution to prove, and these documents are therefore admissible. On that view, it appears to me that these documents are admissible as admission, but in point of fact these documents are really admissible or inadmissible in this case from another point of view altogether.

13. There is ample evidence that these people made the documents, took part in the making of the documents, and that was not contested before the Sessions Judge. But the real use of these documents to show conduct on the part of the the accused persons from which conduct, as matter of fact, the jury are enlightened as to what happened at the time these documents were brought about. Here you have four people purporting to take part in the making of the documents. You find them afterwards insisting before a Munsif that the documents are genuine telling the same story and doing their best to act as if the documents are genuine. That in some respect tells in their favour. Jn other respects, if the jury are independently satisfied that the documents are not genuine, this conduct on their part has a high evidentiary value upon the question of intention, upon the question whether or not they are in conspiracy. I have no doubt, therefore, that these documents were rightly exhibited by the prosecution as evidence in the case.

14. The next objection taken is that no complaint by the Munsif has been made in respect of any of these four accused who gave evidence before him. As to that I cannot find that there is any necessity in this case, on a charge of forgery or abetment of forgery, to get a complaint from the Munsif. As a matter of fact, the Munsif has taken the view that Section 195(1)(c), Criminal P.C. applies only to forgery when committed or alleged to have been committed by a party to the proceedings before him. That view is in my opinion, correct and it is nothing to the point to say that these people might have been accused of something else, namely, under Section 193 of the Code, and that then it would have been necessary toget a complaint from the Munsif. For the purpose of this charge, no complained from the Munsif is necessary.

15. The third point is that it is said that it was not admissible for the prosecution to give evidence with reference to the-kobala Ex. 11 of the previous day, that is to say, the kobala which purports to be a conveyance by Md. Fakir and Abdul Hashim of the other five-annas in the land. If that were a just criticizm it would indeed be one which would have rendered it almost impossible to set before the jury the facts with reference to the kobala Ex. 1 at all. I find, for example, that in the evidence of the main accused Ambar Ali, accused 1, the two things are throughout treated together 'I wrote these two documents executed by the defendants in this suit,' and the whole story given before the Munsif is a story which affects both and cannot be cut into branches. In the present case it makes all the difference whether or not Moslem who is said to be taking 5-annas. from the complainant and his brother was a person who already had 5-annas share or was a person who had not 5-annas share. The execution of these two kobalas, if it was done as alleged and as the jury have believed, points to two steps towards the same end, and the one is closely connected with the other. Nobody supposes that the law would permit a jury to infer that Ambar forged Ex. 1 merely because there is reason to suppose that on the previous day he had forged something else. But that is not the case with reference to this matter. These two documents are so connected that it. was necessary and right, in my judgment that the whole story should be put before the jury.

16. It is said, however, that there is in the charge of the learned Judge a direction to the effect that if they had reason to believe that the accused were conspiring together, the evidence of one before the Munsif would be evidence against the other;and on that it is pointed out that there was no charge of conspiracy it all. I certainly think, though it may be not without some room for argument, that if person falsely puts his name down as an attesting witness to the signature of somebody who he knows has never signed at all he is guilty of forgery just is well as the scribe. There may be room for argument, but I should have thought that these persons ought to have been put on their trial on a charge under Section 467 and also on charges under Section 467 read with Section 120-B. However they were not. Three of the accused, however, were put upon their trial under Section 467 read with Section 109 and that certainly includes, as Section 107, I.P.C. plainly says, a charge that they were engaged with one or more persons in a conspiracy for doing an illegal thing. So far as those three accused -- accused 2, 3 and 4 are concerned I cannot see that there is any objection to the direction which the learned Judge gave to the jury. The only difficulty is as regards accused 1. He may say:

I was charged under Section 467. I know that the other accused werecharged with having conspired with ma because they were charged under Section 109, but I did not know that I was charged with having conspired with them.

17. That is not a very sensible objection, but, in point of fact, in this case one finds, when one looks at the evidence before the Munsif, that the main story is told by Ambar Ali accused1 himself, and that even if it be supposed that it was a wrong direction to tell the jury that what the other three people had said was evidence against Ambar Ali it is quite clear that so long as his own evidence given before the Munsif was evidence against him in the Sessions trial there is no reasonable possibility that that can have resulted in any prejudice at all.

18. For these reasons it appears to me that the conviction can be sustained and, in my opinion, this appeal must be dismissed.

Buckland, J.

19. I agree.


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