RARICHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners 1 and 3 are direct brothers. Second petitioner is the wife of the first petitioner. 4th accused is the wife of the third petitioner. 6th petitioner is a witness who attested Ext. P7 will dated 11.04.85. Along with the petitioners the document writer was the 5th accused. All of them were tried for the offences under S.465, 468, 471, 419 and 420 read with S.34 IPC. The Judicial First Class Magistrate acquitted 5th accused of all the charges. Petitioners were convicted for all the offences. Petitioners challenged the conviction and sentence before Sessions Court, Kozhikode. After analyzing and reappreciation of evidence, learned Sessions Judge set aside the conviction for the offences under S.420 and 471 IPC. Conviction of the petitioner for the offence under S.465, 468 and 419 were confirmed. The learned Sessions Judge confirmed the sentence of rigorous imprisonment for six months and a fine of Rs. 500/- for the offence under S.465, rigorous imprisonment for one year and a fine of Rs. 1000/- for the offence under S.468 and rigorous imprisonment for two years and a fine of Rs. 1000/- for the offence under S.419 IPC. The sentences were directed to run concurrently. Petitioners are challenging the conviction and sentence in this revision.

(2.) Second petitioner and deceased Narayani are the daughters of PW 1, Chirutha. The factual findings of the learned Magistrate as confirmed by the learned Sessions Judge on material aspects is not challenged by the learned counsel appearing for revision petitioner. The husband of PW 1 had gifted a property jointly in favour of his daughters second petitioner and Narayani. Narayani died issueless on 6.4.1985. Being the legal heir, PW 1 inherited the property of Narayani. The prosecution case is that to deprive PW 1 of her right and share in the property and in furtherance of their common intention, petitioners committed forgery and got executed Ext. P7 will and 4th petitioner impersonating herself as Narayani got the sale deed registered at Sub Registrar Office, Balussery with the intention of using it as a genuine will executed by deceased Narayani and 6th petitioner with the knowledge that it was a forged will signed it as an attesting witness to the execution of the will and all the petitioners thereby committed the offences. Though petitioners had disputed the facts before the learned Magistrate and the learned Sessions Judge, in the light of the conclusive evidence the fact that Narayani was no more on 11.4.85 when Ext. P7 will was seen executed or on 16.4.85 when it was registered at the Sub Registrar's Office is not disputed. The learned Magistrate and the learned Additional Sessions Judge on the evidence of PW 9, 20, 17 and 24 corroborated by Ext. P28 conclusively found that Narayani died on 6.4.85 and first petitioner wrongly furnished the date of death as 23.4.85. Evidently petitioners wanted to make it appear that Narayani died only later to execution and registration of the will. Evidence of PW 6, 16, 19, 26, 28 and 30 conclusively prove that it was 4th petitioner who impersonated as Narayani before the Sub Registrar for the purpose of registering Ext. P7 will. 4th petitioner is none other than the wife of the third petitioner and third petitioner is none other than the direct brother of the first petitioner. Second petitioner who has to derive right by virtue of the forged document is none other than the second petitioner who is the wife of the first petitioner. The learned Magistrate and the learned Sessions Judge on the evidence rightly found that Ext. P7 is a forged document and forgery was committed by the 4th petitioner and third petitioner and the 6th petitioner were the attesting witnesses and it was them who identified 4th petitioner as deceased Narayani to the Sub Registrar. Therefore it was rightly found that the forgery was committed by all the accused in furtherance of their common intention.

(3.) The argument of the learned counsel appearing for the revision petitioner is that even on these proved facts, none of the offences are attracted. The argument was that to attract an offence under S.419 of IPC prosecution has to establish that the person deceived was intentionally induced to do or omitted to do anything which he would not do or omit to do if he was not so deceived and the act or omission should be one which causes or is likely to cause damage or harm to body, mind or reputation of property to the person so induced. The argument is that evidence of PW 1 would establish that she did not sustain any harm and PW 1 was not induced to do anything and the finding of the courts below that by committing forgery Sub Registrar was induced to register the document and the Sub Registrar also did not sustain any damage or harm either to his body, mind, reputation or property and therefore conviction for the offence under S.419 IPC is not sustainable. The learned counsel further argued that in order to attract an offence under S.465 or 468 of IPC there should be evidence to prove that forgery was committed for the purpose of cheating and as the evidence of PW 1 establish that there was no cheating, the conviction is unsustainable. The learned Public Prosecutor submitted that both the courts below rightly appreciated the evidence and there is no reason to interfere with the conviction and sentence.