EMPEROR Vs. NABAB ALI SARKAR

JUDGEMENT

(1.) This is a reference under Section 307 of the Criminal Procedure Code by the Assistant Sessions Judge of Mymensingh, because ha found himself in disagreement with the unanimous verdict of acquittal returned by the Jury in this case in which the accused Nabab Ali Sarkar was prosecuted and tried under Section 466 of the Indian Penal Code. The facts on which the pro- Hocution is based are these. In a rent suit, No. 663 of 1922, of the third Munsif's Court at Tangail, in which the plaintiffs, who were the Nawab of Dacca and others, sued the defendant Yarat Sheikh, for arrears of rent, the defendant, Yarat Sheikh, filed some dakhilas along with his written statement pleading payment. That was on the 27 January 1923. After some adjournments, at the instance of the plaintiffs, the suit was specially fixed for hearing on the 6 March, 1923. On that date the defendants pleader represented to the Munsif that his client was being unnecessarily harassed by the plaintiffs. On that the Munsif took up the case for hearing, went through the written statement, looked into the rent receipts, roughly calculated the amounts which they represented in the aggregate, and found that the total amounted nearly to that mentioned in the written statement. Ha, however, had to adjourn the case on the plaintiff's prayer to 13 March, 1923. On that date the accused, who was the plaintiff's tehsildar, and was conducting the rent suit on behalf of the plaintiffs filed his hajira in Court for the first time, and the case was taken up. On looking into the record, the Munsiff discovered that the dakhilas examined by him just a weak before and the firisth or the list of documents, with which they had been filed, were not on the record. He then called for an explanation from his officers, and ordered them to make a thorough search, and the case was adjourned till the next day. On the next day the documents were not recovered and the case was again adjourned till the 19 March, and the search continued. On the morning of the 19 March a clerk, Osman Ali, who had been in charge of the records of rent suits, came to office before the Court hours, and found the missing papers below the table of the sheristadar. He reported the matter to the Munsif when ho came, and made over the entire record to him. The suit was then taken up for hearing. The Munsif found that the dakhila, dated the 11th Agrahyan 1327 B.S., Exhibit 1 in the present case had been altered in material parts, namely, the amount entered in the column of hal (current year) was erased, and a cross mark put therein : in the column of bakeya (arrears) the amount of money was changed both in figures and in letters, and there were similar alterations in the column of total both in figures and in letters. These alterations were also noticed by the defendant's pleader Babu Lalib Chandra Dhar, P.W. 2. At the hearing of that suit, the accused Nabab Ali examined himself as a witness on behalf of the plaintiffs, and said in his examination in chief that nothing was paid by the defendant on account of rent and cesses for the period in suit, and in his cross-examination, he said that the dakhila was in his handwriting, and that the corrections made therein were also in his handwriting. He also admitted that he had erased some figures that were entered in the hal column through mistake, and that he also put a cross mark on the erased portion. He further deposed that he did all this before he granted the dakhila to the tenant. Thereupon, the Mnnsif drew up proceedings against the accused under Section 476 of the Criminal Procedure Code, and ordered his prosecution under Section 466 of the Indian Penal Code.

(2.) At the trial in the Sessions Court, the evidence adduced by the prosecution consisted of that of the Munsif who spoke to all the circumstances I have mentioned above. The pleader for the defendant in the rent suit, Babu Lalit Chunder Dhar, was also examined, and he supported the Munsif in all the particulars given by him. The Bench clerk of the Third Munsif's Court at Taugail and the clerk, Osman Ali, who was in charge of the records of rent suits, were also examined. The accused in his statement in the Sessions Court said, defendant's pleader asked me whether the dakhila was in my handwriting. The defendant's pleader put to me this question keeping the dakhila in his hand. I then said, it looks like my handwriting. The said pleader showing me a scored through place in the dakhila, asked me who has done it I in reply to this said, as the dahhila is in my handwriting, it is not unlikely that the scoring may be of mine. In fact, the dakhila was not scored through by me.

(3.) On this evidence it is argued by the learned vakil, who appears for the Grown, that the accused ought to have been held guilty. I am not sure what would have been the result if the prosecution had succeeded in proving all the facts alleged by it. But an objection is taken by the learned vakil for the accused that the deposition of the accused in the rent suit, in which he admitted having made the alterations, is not admissible in evidence. Clearly, the case rests upon the question of the admissibility of this piece of evidence. I have no reason to disbelieve that when the dakhila was filed there were no : alterations in it, but subsequently, when it was recovered, it was found that it had been materially altered so as to make it speak differently to what it originally signified, namely, whereas, when the Munsif and the defendant's pleader examined it, it showed that the rent claimed had been paid, when it was next examined at the hearing it was found that it supported the plaintiff's case entirely. Now, to connect the accused with the alterations that appear on the document, it is incumbent on the prosecution to prove that the alterations were made by him. Of course, the prosecution has not been able to prove that fact directly, but it relies on the admission made by the accused in his deposition before the Munsif that he had made the alterations, though at the same time he said that the alterations were made before the dakhila was issued. That being so, it is necessary to examine the question whether the deposition of the accused in the rent suit can be used as evidence in the present case.