HAIDAR ALI PRADHANIA Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from the judgment and sentence of the learned Sessions Judge of Tipperah, who, in agreement with both the assessors, has found the appellant, Hyder Ali, guilty of forgery under Section 467, Indian Penal Code, and sentenced him to seven years rigorous imprisonment, and has found the second appellant, Affsaruddin, guilty under Section 467 read with Section 114, Indian Penal Code, and sentenced him to five years rigorous imprisonment.

(2.) The document which is said to be forged is a kabuliyat executed by Hyder Ali himself in favour of his landlord, Chand Buksh Sarkar. The original document is not forthcoming but in the copy which has been produced from the Registration Office, the name of Chand Buksh Sarkar of Pachania appears as a witness. The defence is that this Chand Buksh Sarkar is not the landlord of the appellant, but a travelling munshi or tutor who for some time resided with the family of one Mansur Ali in north Pachania. It is necessary to understand the case to state that the village of Pachania consists of 4 chaks or hamlets, North and South Pachania, Bahar Chak Pachania and another which is immaterial. The landlord Chand Buksh Sarkar is a resident of Bahar Chak Pachania.

(3.) The learned Judge seems to us to have erred on many points of law which arise in the case, He begins by saying that the loss of the original document might have been a very serious difficulty to this case going on were it not for the fact that the defence case is that it was not the complainant, Chand Buksh Sarkar who signed the name as witness but another Chand Buksh who was a munshi living in the bari of Mansur Ali. He then proceeds to throw the onus on the defence of showing that this Chand Buksh was a real person. The further allegation of the defence was that the nazar was fixed at Rs. 100 and that half of it was received by the landlord in the shape of a cow, two goats and a plough. The Judge finds that there is no doubt on the admission made by the complainant that he did get the plough and cow and the Sub-Registrar, who inquired into the matter and gave evidence on the point, clearly finds that these were handed over to the zemindar Chand Buksh. Now the witnesses say he bought these things on account of a marriage. The contention that a plough or more than one plough is necessary for the purpose of marriage seems to us absurd, and we decline to believe it. The Sub-Registrar also finds that Haidar was in possession when he went to the village. The learned Judge was in error in saying that this is not evidence. He does not say how it is not evidence. The Sub-Registrar saw with his own eyes apparently that Haidar was in possession. There can be no reason why he should not give evidence of that fact. The principal error he has Committed is as we have noted where he says: "In all these circumstances, the burden lies on the accused to prove that Chand Buksh signed the deed and this burden they have failed to discharge."