DAMODAR SAHU Vs. STATE

JUDGEMENT

(1.) There are two appellants before us. Appellant I Damodar Sahu has been convicted under Section 471/ 467, I. P. C., and sentenced to undergo R. I. for four and half years. He has further been convicted under Section 467/109, I. P. C., but no separate sentence has been passed under this section. He has also been convicted under Section 209, I. P. C., and sentenced to undergo R. I. for one year. He has further been convicted under Section 198, I. P. C., and sentenced to undergo R. I. for two years. Appellant 2 Dasarathi Sahu has been convicted under Section 467/109, I. P. C., and sentenced to R, I. for four find half years. He has also been convicted under Section 193, I. P. C. and sentenced to undergo R. I. for two years. In the case of both the appellants, the sentences of imprisonment are to run concurrently;

(2.) The prosecution case is that the appellant Damodar Sahu filed a suit in the Additional Munsif's Court, Puri, praying for specific performance of a contract entered, into by one Aparti Sahu for the sale of a piece of homestead land measuring 0.48 acres along with some other lands to him for a consideration of Rs. 250/- and who received Rs. 200/-towards the consideration and executed an agreement to sell on 6-9-1946. Aparti, however, did not execute the kabala and sold the land to one Lokanath Sahu (P. W. 5) by Ext. 11 dated 27-10-1946. Lokanath in his turn sold it to one Krishna Sahu. Damodar made Aparti, Lokanath and Krishna defendants to the civil suit O S. No. 101/47. Aparti filed a written statement denying the alleged contract and he specifically denied the execution of the agreement dated 6-9-1946, and stated that the thumb impression appearing on the said document purporting to be his, was not actually his thumb impression. The two appellants examined! themselves as witnesses in support of the case of appellant 1, The appellant 2 proved his signature on the agreement as he was an attesting witness. Both of them categorically stated in their evidence that Aparti had put his thumb marks on the agreement in their presence. The defendant Aparti denied his thumb impression and prayed to the Court for sending the thumb marks with his specimen thumb marks for comparison by the Government Finger-print Expert. This was done and the Finger-print Expert gave his opinion to the effect that the disputed thumb marks did not tally with the specimen thumb marks of Aparti. The Court came to the conclusion that Aparti did not put his thumb marks on the agreement which had been marked as Ext. 1 in the civil suit. Accordingly the suit was dismissed. The court thereupon held an enquiry under Section 476, Criminal P. C., at the instance of Aparti, and after holding a preliminary enquiry lodged a complaint for the prosecution of the appellants on charges under Sections 467, 467/109, 471, .193 and 209, I.P.C. The appellants were committed to the Court of Sessions for trial for those offences in due course.

(3.) At the trial, the appellants did not challenge the fact that the agreement which was actually filed in the civil suit was forged, but their case was that when Aparti failed to execute the sale-deed, the grand-father of Damodar, appellant 1, came to Puri and handed over the agreement to Padmanav Das, a Mohurir of Rai Bahadur Lokanath Misra, an advocate of Puri, for the purpose of filing a suit against Aparti. Aparti aporoached appellant 1 for a settlement, but appellant 1 declined to enter into a compromise as the agreement had already been made over to Padmanav Das for the purpose of filing a suit. Some time later, appellant 1 came to Puri and wanted Pudmanav to file a suit, but as Padmanav declined to file it, he took back the agreement (which has been marked Ext. 14 in the present case) from Padmanav and approached another Mohurir Sushil Chandra Ghosal, and he filed the civil suit through the help of this Mohurir. The appellant 1 suggests that Aparti somehow got hold of Padmanav and took back the original agreement which he had executed in favour of appellant 1 and replaced it by a forged agreement which had been scribed by one Hadibandhu Das who was the scribe of the original agreement also. The appellants genuinely believed that this was the original agreement which Aparti had executed in favour of appellant 1, and in that belief they prosecuted the civil suit. They had no knowledge that Aparti had got the original agreement substituted by the forged agreement. The appellant 2 took the defence that he had undoubtedly attested the original agreement, and when he proved his signature on the disputed agreement in the civil suit, ho did not very much scrutinise his signature as there was no occasion for suspicion that any foul play had been committed by Aparti. Therefore, his case was that he did not intentionally depose falsely in the case. He was labouring under the impression that this was the original agreement which Aparti had executed in favour of Damodar.