1. This is a Rule directed against the convictions of the two petitioners under Section 465 of the Indian Penal Code. The convictions in question were in respect of a kabin nama purporting to have been executed by one of the petitioner, namely, Gunjar Mohammed and to have been witnessed by the other petitioner, Sunjar Mohammed.
2. The learned Sessions Judge, to whom the case went on appeal, expressed the opinion, I have no doubt that the story of marriage is a, fiction and that Gunjar intended to make a claim to Aimona's property alleging mar riage and supporting his claim by means of the kabin'. Further on, the learned Judge in his judgment says: 'There can be no doubt that the kabin is a false document and admittedly Gunjar executed it.'
3. For the petitioners, however, it is pointed out that although Gunjar may have had no business to execute this kabin-nama in favour of Aimona Bibi, who was not in fact his wife yet the document in question is not a fake document within the meaning of Section 464 of the Indian Penal Code. That contention is, in my opinion, well-founded. It clear that the facts found by the learned Judge do not bring the document within the definition contained in Section 4.64s,
4. The learned vakil who appears for the opposite party has suggested to us that although that may be se, yet an offence under Section 193 of the Indian Penal Gode was committed, and be further suggests that the conviction should be altered to one under that section : or that, in the alternative, the case should be remanded for a fresh trial. It is clear, however, that the facts found are not sufficient to justify a conviction under Section 193, inas much as there is no finding that the purpose of making this document was that it should be used at any stage of a judicial proceeding. In my opinion, this trial having failed; it is not proper that the two petitioners should again be placed on their trial under Section 193, particularly, since the result of the present trial has been to establish the invalidity of the kabin nama in question,
5. For these reasons, in my opinion, the convictions of and sentences passed on the two petitioners must be set aside and this Rule made absolute. The bail bonds of the petitioners should be discharged.
Lancelot Sanderson, C.J.
6. I agree.