1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, against the acquittal of the respondent, Kiranbala Dassi, by the learned Sessions Judge of Bankura by his judgment dated the 6th February 1925.
2. The short facts are as follows: The respondent, Kiranbala Dassi, along with three other persons, Upendra Nath Ghoshal, Kishori Mohan Misra and Panchu Gopal Chakravarti, was put upon trial for offences under Section 82 of the Indian Registration Act. The case for the prosecution was that a deed of release, dated the 29th March 1923, purporting to have been executed by one Sindhubala Dassi in favour of Upendra Ghoshal was a forged document made at the instance of Upendra Ghoshal, that Panchu Gopal was the scribe and that he had signed the name of the executant, and that Upendra Ghoshal procured the registration of the document by causing Kiranbala, the respondent before us, to personate Sindhubala Dassi before the Sub-Registrar of Assurances, and that Kishori Mohan falsely identified Kiranbala Dassi as Sindhubala Dassi at the time of the registration of the document. During the course of the trial in the Court of first instance the learned Deputy Magistrate, Mr. Ahmed, directed that the respondent Kiranbala Dassi should give her thumb-impression. Accordingly her thumb-impression was taken and it was compared by an expert witness being P.W. 17, Jnanada Chandra Bose, with the thumb-impression purporting to be that of Sindhubala Dassi which was on the bond and which had been taken at the time of the registration of the deed and in the Sub-Registrar's book. The evidence of the expert was to the effect that the three thumb-impressions, namely, that of Kiranbala taken in the Court before the learned Magistrate, that which appeared on the deed and purported to be the thumb-impression of Sindhubala, and that which appeared in the Sub-Registrar's thumb-impression book, and which also purported to be the thumb-impression of Sindhubala, were in fact and in truth the thumb-impression of one and the same person, and that the thumb-impression of Sindhubala, who had been examined as a witness for the prosecution and whose thumb-impression had been taken in Court, did not tally with the thumb-impressions hereinbefore referred to. The learned Magistrate who tried the case acquitted Panchu Gopal, but he found that the three other accused persons, Upendra, Kishori and the present respondent, Kiranbala Dassi, were guilty and sentenced them to various terms of imprisonment. So far as Kiranbala was concerned the sentence on her was that she should undergo rigorous imprisonment for a period of six months. The accused persons thereupon preferred an appeal before the learned Sessions Judge of Bankura. But it having appeared that there had been no compliance with the provisions of Section 342, Criminal P.C., a retrial was ordered. On re-trial by the learned-Magistrate the accused were again convicted and sentenced to the same terms of imprisonment as in the previous trial. There was then an appeal to the Sessions Judge, and by his judgment, dated the 6th February 1925, the accused persons were acquitted. As regards the two accused, Upendra Ghoshal and Kishori Misra, the learned Sessions Judge held that there was not sufficient legal evidence against them to warrant a conviction. But as regards Kiranbala Dasi the learned Sessions Judge was of opinion that her thumb-impression taken at the time of the trial was inadmissible in evidence, as such thumb-impression had been taken illegally. Thereupon the present appeal has been preferred as stated by the Superintendent and Remembrancer of Legal Affairs.
3. It is contended on behalf of the Government by the learned Deputy Legal Remembrancer that the Sessions Judge was clearly in error in holding that the thumb impression in question, namely, one that had been taken in Court of the respondent Kiranbala Dassi had been taken illegally, and in support thereof he has drawn our attention to the provisions of Section 5 of Act 33 of 1920, being an Act which authorizes the taking of measurements and photographs of convicts and others. Section 5 of Act 33 of 1920 runs as follows: 'If a Magistrate is satisfied that for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements (measurements as defined in the Act include finger-impression and footprints impressions) or photograph to be taken, he may make an order to that effect; and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order, and shall allow his measurements or photograph to be taken, as the case may be, by a police officer.' We think this is sufficient authority for the course that was adopted by the learned Deputy Magistrate. As is well known, before the passing of the Act, there was considerable controversy as to whether thumb-impressions could be taken of a person by order of a Magistrate, and to settle all such doubts this Act was passed.
4. Then the question arises whether the evidence of the expert who had an opportunity of comparing the thumb-impression of Kiranbala which had been taken in Court with the thumb-impressions on the deed and in the Sub-Registrar's thumb-impression book is admissible under the provisions of the Evidence Act. Section 45 of the Indian Evidence Act makes the opinion of an expert on a matter like this admissible in evidence. Illustration (c) to Section 45 makes it abundantly clear that in a case like the present the opinion of the expert formed by comparison of the various thumb impressions hereinbefore referred to is admissible in evidence. It would, therefore, follow that the procedure which was adopted by the Magistrate was one in strict accordance with the provisions of the law and that the learned Sessions Judge was not correct in saying that the thumb impression of Kiranbala Dassi, which had been taken in Court, was one which had been taken illegally and against a fundamental principle of law. That being so, it is impossible to resist the conviction that the thumb-impression which had been put on the deed at the time of the registration of the document was one which had been put not by Sindhubala Dassi but by Kiranbala Dassi; in other words we are satisfied on the evidence on the record that it was Kiranbala Dassi who had personated Sindhubala Dassi at the time of the registration of the document.
5. We must, therefore, allow the appeal, and the only question now before us is what the sentence should be on Kiranbala. She is stated to be a widow of over 45, and although there can be no doubt whatsoever that she did personate Sindhubala Dassi at the time of the registration of the document before the Sub-Registrar it is abundantly clear from the evidence on the record that she was a puppet in the hands of other accused. Under these circumstances we have anxiously considered whether we should pass a sentence of imprisonment on her, and we have come to the conclusion that having regard to the amended provisions of Section 562 of the Criminal P.C. this is a case in which we can take action thereunder, and instead of sentencing Kiranbala Dassi at once to any punishment we direct that she should be released on her entering into a bond with one surety of one hundred rupees to appear and receive sentenced when called upon during the period of one year.