BHALUKA BEHERA Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal has been filed by the three appellants against the judgment dated 24-9-1955 of Shri B. K. Das, Assistant Sessions Judge of Mayurbhanj wherein appellant Bhaluka has been convicted under Section 467 of the I. P. C. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for three months more. He has also been convicted under Section 82 (c) of the Indian Registration Act and sentenced to undergo rigorous imprisonment for two years the sentences to run concurrently. Appellant Kalichasan stands convicted under Section 82 (d) of the Indian Registration Act and has been sentenced to undergo rigorous imprisonment for two years. Appellant Madhusudan has been convicted under Section 474 of the I. P. C. and sentenced" to undergo rigorous imprisonment for five years and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for three months more. The offences have been committed in respect of a sale deed (Ex. 14 (4) ) dated 11-12-53 which purports to have been executed by one Chandramohan Behera in favour of appellant Madhusudan. This Chandramohan was ailing for a long time and in fact he died on 15-12-53, four days after the execution and registration of the document. The property stands recorded in the name of Chandramohan. (see Ex. 26 ). The prosecution case is that appellant Bhaluka fasely personated himself as Chandramohan and put his thumb Impression in evidence of the execution of the document and also personated himself as Chandramohan before the Sub-Registrar at the time of registration of the document. He put his thumb Impression also at the time of admitting the execution before the Sub-Registrar. Kalicharan is the identifier of Bhaluka as Chandramohan at the time of registration of the document. The document is in favour of appellant Madhusudan as the vendee and the prosecution case is that in fact it is Madhusudan who is responsible for the entire machination for getting this forged document, evidently before the death of the real owner Chandramohan, with the dishonest intention of acquiring his properties. Madhusudan got possession of the Kabala after registration and started a case for mutation of his own name in place of Chandramohan on 5-1-54. Notice was taken out as against the widow of Chandramohan (P. W. 1) but Madhusudan fraudulently suppressed the due publication of the processes. In the meantime the Choukidar of the village (P. W. 2) could get information about the mutation case and on enquiry he ascertained from the widow of Madhusudan that her husband had never executed the sale deed (Ex 14 (4) ). The widow (P. W. 1) thus having been informed of the mutation case appeared through a lawyer and prayed for time to file objection. The case was thereafter adjourned to 10-2-54. Madhusudan immediately realising the complications persuaded the widow (P. W. 1 ). to settle the matter; but as the matter was not immediately settled the widow lodged the First information Report (Ex 1) on 8-2-54. But eventually the mutation case was compromised by P. W. 1 and appellant Madhusudan and it was dismissed for non-prosecution. Thereafter Madhusudan wanted to take back the document filed in the mutation case. The entire records were, however, seized by the investigating officer and the thumb-impressions of appellant Bhaluka. the signature and thumb impression of appellant Kalicharan and the signature of Madhusudan were taken before the Magistrate (P. W. 13) and were sent to two experts, P. W. 18 being the Hand Writing expert and P. W. ID being the Fingerprint expert. According to the experts, the specimen thumb impressions of Bhaluka and Kalicharan taken before the Magistrate (P. W. 13) are identical with the thumb impressions appearing on the document, Ex. 14 (4 ). It is to be noted that on 10-2-1954 appellants Kalicharan and Madhusudan. were produced for making confessional statements before the Magistrate (P. W. 13) who recorded the statements of these two appellants under Section 164 of the Cr. p. C. The accused persons, however, pleaded not guilty in the trial. The learned Assistant Sessions Judge has found that on 11-12-1953 Chandramohan was in a dying condition and was not capable of going to the registration office, that in fact, it was Bhaluka who falsely personated himself as Chandramohan and Kalicharan falsely identified Shaluka as Chandramohan before the Sub-Registrar, and that the vendee was responsible for tin's forgery and was in possession of the document with the intention of using the forged document as a genuine one. He. therefore, convicted the three appellants as stated above.

(2.) THE learned Advocate appearing on behalf of the appellants has taken up the first point regarding Madhusudan that the conviction under Section 474 of the Indian Penal Code is bound to fail, there being no direct and substantive evidence that he was in possession of the document. This argument he advanced on the assumption that even if the document be hold to be a forged one, appellant Madhusudan cannot be convicted under Section 474 I. P. C. on account of this lacuna in the prosecution. Indeed, the Advocate who had filed the mutation case on behalf of Madhusudan does not say that Madhusudan filed the document in court and further it does not appear from the records of the Sub-Registrar's office that Madhusudan took a return of the registered document.

(3.) THE circumstances transpiring in the present case appear to be conclusive regarding his possession. Appellant Madhusudan has been described as the vendee in the document Ex. 14 (4 ). The mutation case was filed in the name of Madhusudan in Place of the recorded tenant Chandramohan. There was an attempt for fraudulent suppression of the processes, which has been found by the learned Assistant Sessions Judge for the reasons that P. Ws. 8 and 12 who purported to be the witnesses to the service of the processes denied in Court the publication of the processes in their presence. It transpires from the positive evidence of the widow (P. W. 1) that Madhusudan and the widow compromised the mutation case. It also appears from the evidence of the two lawyers representing each of the parties that the compromise petition signed by both Madhusudan and the widow was filed on the basis of which the mutation case was dismissed for default. Madhusudan further made an attempt to take back the document; but, nevertheless, the entire records were seized by the investigating officer; These circumstances are weightv enough to load to the conclusion that it was Madhusudan who was in possession of the forged document. There is yet another item of evidence which is important, that is, the confessional statement made toy Madhusudan himself before the Magistrate (P. W. 13) who recorded it under Section 164 of the Cr. P. C. The Magistrate gave him sufficient time for reflection, gave him the caution that he was the magistrate and that the accused was not bound to make any statement before him and that if he made any incriminating statement it might be used against him. He had put several other questions to test that the statement was voluntary. The learned Assistant Sessions Judge has found that in fact the confessional statement recorded under Section 164 Cr. P. C. was voluntary and true. There Madhusudan confessed the fact that Bhaluka gave the thumb impression as that of Chandramohan and falsely personated himself as Chandramohan. Madhusudan paid the fee of Rs. 5. /10/ -. He was present all along during the execution and registration of the document. Kalicharan also falsely identified Bhaluka as Chandramohan. He further stated that after receiving the 'check' he returned home along with Kalicharan. After this evidence on record we may refer to the statements of Madhusudan both before the committing Magistrate's Court and before the Assistant Sessions Judge that in fact he had filed the document in Court in the mutation case. His statements before the committing Magistrate's Court and the Sessions Court are taken into consideration bv us to strengthen our view and to lend assurance to it which is based upon sufficient other evidence on record as narrated above. We, therefore, find that in fact Madhusudan was in possession of the document with the intention of using it as a genuine one.