GUNAMUDAYAN PACKIANATHAN CHRISTIAN VELLAM ODI Vs. SIRKAR PROSECUTOR

JUDGEMENT

(1.) THE first accused in Sessions Case No. 14 of 1123 on the file of the Nagercoil Sessions Court has been convicted for the offences falling Under Sections 469 and 473, Travancore Penal Code, and he has been sentenced to undergo rigorous imprisonment for three years. This appeal is directed against the said convic tion and sentence. One Boothathan Padmana-bhan was the complainant in this case. He did not live to give evidence at the trial. His evidence before the Committing Magistrate'9 Court as P. W. 3 has been proved as Ex. 9. His son was examined as P. W. 9. Kali Booths-than waa the father of the complainant and to him belonged a sixth share in survey no, 5475 of Nattalam Pakuthy and it stood included in Ex. J, a joint patta, issued to him and Subra-manian Narayanan who owned a third of the property between them. Kali Soothathan left six sons and eaoh of them had an equal share in the one-sixth of the property owned by him. The complainant bad therefore l/36th share in the property in question. Another sharer had filed a suit, c. s. no. lm of 1120, on the file of the Kuzbithura Munsiff's Court for a partition of his share in the property and the complainant Boothathan Padmanabhan was defendant 1 in the case and accused 1 and 2 were respeoti-vely defendants is and 19, Exhibit M is the copy of the plaint. It was alleged by the prosecution that accused l and 2 with the help of accused 3 and i forged a document a copy of which is ex. a forging the signature of Bootha. than Padmanabhan and got it registered on 22-7-1122. It purported to be a release of all the rights under Ex. J patta in respect of a sixth share in the property comprised in the aforesaid survey number 6475 in Nattalam Pakuthy. Accused 3 and 4 were. the attestors to the document. The document was so forged for the purpose of using it as genuine in a judicial pro-seeding namely in Ex. M suit which was pending. The complainant obtained a copy of the dooument on 36. 1122 and he filed the complaint Ex. N. on 5-6-1121.

(2.) THE learned Judge found that aocused 8 and 4. who were attestors to the document did not know either the complainant or accused 1 and 2 and that they merely identified the man who produced the document for registration before the Sub-Eegistrer on the representation by p, w. 3 that he was the executant mentioned aa Boothathan Padmanabhan in the document. Accused 3 and 4 have therefore been acquitted. The evidence regarding the making of the document consists of the oral testimony of P. W. 3 and P. W. 5. P. W. 3 stated that it was accused 1 who forged the signature of the executant in the document and did not swear to the presence of accused 2. P. W. s stated that aocused 2 was also present. The learned Judge, however, disbelieved the evidence of P. W. 6 and acquitted acoused 2. P. W. 1 the Sub. Registrar proved Ex. B. book kept in the Sub-Registry Office in which the thumb impression of the person who presented the document for registration as the executant was taken by him. The thumb impression of accused 1 was taken by the Committing Magistrate in Court with the help of P. W. 2 who was the Finger Print Expert employed under the Government of Travancore. Exhibit 0 is the impression so taken and Exs. C-l and C-2 are the photographic enlargements of Ex. C. The thumb impression contained in Ex. B book has also been photographed and enlarged and the enlargements are B-l and B-2. P. W. 2 gave evidence that the thumb impression in the book marked as B and the thumb impression a are of the same person. The learned Judge convicted accused l relying on the evidence of P. W. 3 and that afforded by a comparison of the thumb impression of the accused taken in Court and that taken of the person who figured as the exeoutant of the document and presented it for registration.

(3.) THE learned advocate for the appellant contended that the evidence of P. W. 3 should not have been believed by the lower Court as he was in no better position than an accomplice. It was also argued that the Committing Magistrate was wrong in having aaked P. W. 2 to take the thumb print of accused 1 in Court and that the evidence of P. W. 2 declaring that the thumb impression in Ex. B register and that of the accused taken in Court are of the same person should not have been relied on for the purpose of finding aocused 1 guilty. Two witnesses P. W. 3 and P. W. 6 were put forward by the prosecution to prove the act of forging the original of Ex. A, [their Lordships then discussed the evidence of of P. W. 3 and P. W. 5 and came to the conclusion that the evidence of P. W. 3 was totally untrustworthy. The judgment then proceeds as follows: