NARESH CHANDRA MALLICK Vs. STATE

JUDGEMENT

(1.) These two appeals have been directed against the order of conviction and sentence passed by the learned Additional Sessions Judge, Nadia, in Sessions Trial No. VI of June 1969. Naresh, the Appellant in Cr. App. No. 618/69, has been convicted and sentenced to rigorous imprisonment for five years under Sec. 467, Indian Penal Code and to rigorous imprisonment for two years under Sec. 82(c) of the Indian Registration Act, 1908. The sentences are to run concurrently. Benialal, the Appellant in Cr. App. No. 621/69, has been sentenced to rigorous imprisonment for a term of five years under Ss. 467/109, Indian Penal Code.

(2.) The Appellant Benialal Baidya is the husband of Ram Durga who is the mother's sister of P.W. 1 Dwijendra. Dwijendra and Benialal migrated with the members of their family from Barisal now in Bangladesh. After migration Dwijendra lived at Sahishpur for sometime and then shifted to Jumdani in the district of Nadia. Benialal was living at Sahishpur in the same district. Dwijendra and Sabitri Rani, another wife of Benialal, were the owners in equal share of plot Nos. 832/918 appertaining to khatian No. 547 in mourn Sahishpur by purchase on the basis of a single deed. After purchase this land was let out in bhag to P.W. 2 Chittaranjan Karmakar. It is in evidence that Benialal was entrusted by Dwijendra to look after the land being situated in the village where Benialal was residing. It has transpired in evidence that Dwijendra Lal occasionally used to visit his native place in Barisal and he was there during March 1955 till January 1967. On his return in February 1967, Dwijendra (P.W. 1) came to Sahishpur and demanded bhag produce of that year from the bhagidar Chittaranjan. The evidence of P.W. 1 Dwijendra and P.W. 2 Chittaranjan reveal that Chittaranjan disclosed that the entire bhag produce was being realised by Benialal. The realisation of bhag produce was evidently on the basis of a sale deed purported to have been executed and registered by P.W. 1 Dwijendra in favour of Ram Durga Baidya, the first wife of Benialal. Not only that as we know from P.W. 9 Phani Bhusan Sardar, Manager, Nadia Co -operative Land Mortgage Bank, Krishnagar that both Durga Rani and Sabitri, two wives of Benialal, applied on September 12, 1966, for long term loan and the sale deed in favour of Durga Rani alleged to have been executed by Dwijendra was filed in support of her title. Not only that as the evidence of P.W. 9 Phani Bhusan Sarkar goes, Benialal identified both the ladies Ram Durga and Sabitri before him. There is no reason to disbelieve the evidence of P.W. 9. After a petition of complaint was filed in Court by P.W. 1, it was ordered to be treated as F.I.R. and on it Police investigation commenced. On April 24, 1968, P.W. 20 Bholanath Mandal, S.I. of Police who was attached to Chakdah P.S., seized the sale deed Ex. 3 dated June 9, 1965, purported to have been executed by P.W. 1 and deposited with the Land Mortgage Bank by the Appellant Benialal as per seizure list Ex. 5/1. P.W. 1 Dwijendra has said that this document was not executed by him nor was it presented for registration. He has sworn that the document does not bear his signature. This document was signed as Dwijendra Nath Ojha though P.W. 1 always writes his name as Dwijendra Lal Ojha. It was never suggested that P.W. 1 was not the owner of half share of he plot 831/918 or that the document was intended to be created by anybody else other than the real owner Dwijendra. It was suggested in cross -examination of P.W. 1 Dwijendra that his aunt Ram Durga had reconveyed the pro -party to which the instant case, related 'only yesterday'. P.W. 1 deposed before the learned Judge on September 30, 1969. It was also suggested to him that the deed in question was not a forged one and that he usually wrote his name as Dwijendra Nath Ojha and for the purpose of this case he has changed his name from Dwijendra Nath to Dwijendra Lal.

(3.) Police obtained specimen signature and thumb impressions of P.W. 1 Dwijendra and also the Appellant Naresh Chandra Mullick. The specimen signatures and thumb impressions of P.W. 1 and Naresh along with the impugned sale deed Ex. 3 were sent to the handwriting and fingure -print expert for examination. P.W. 14 Anukul Pattanayak, an examiner of questioned documents attached to C.I.D., West Bengal on comparison with the specimen signatures and thumb impressions sent to him with those appearing in the registered sale deed opined that the signatures appearing in the disputed document were not of the writer of the specimen signatures marked I, that is, of Dwijendra Lal Ojha. He has said that the divergences in writing characteristics are significant. Some of the divergences are proportion of the hands of 'da', pen movement in executing the head stroke of 'dirgha ekar', modification of 'bargia ja', manner of linking 'dantya na' with 'da', position of the start and design of 'askar' in the word 'Ojha'. He has, further, said that it is not possible to give definite opinion regarding common authorship W signatures X/1 to X/5 appearing in the impugned document and the specimen writings, marked 2, of the accused Appellant Naresh. P.W. 14 has not been cross -examined by the defence. Though the evidence of P.W. 14 does not disclose that the signatures X/1 to X/5 in the document Ex. 3 are in the hand of Naresh, there cannot be any manner of doubt that the document does not bear the signature of P.W. 1 Dwijendra and this lends assurance to the testimony of P.W. 1 that he did not execute and register the document. Apart from the comparison of signatures, the finger -print appearing in the document was compared with the specimen marks of Dwijendra and Naresh by P.W. 13 Sunil Bhattacharya, Finger Print Expert attached to C.I.D., West Bengal. From his evidence we know mat the specimen thumb impressions of the Appellant Naresh taken in the Court tallied with the thumb impression appearing in the document Ex. 3. The expert has pointed out several similarities in the two sets of thumb impressions. It appears that an attempt was made on behalf of Naresh to dislodge the findings of P.W. 13 with reference to the existence and absence of crease marks in the thumb impression in Ex. 3 and the specimen impressions of the Appellant Naresh. The learned Judge in repelling the contention has observed: