EMPEROR Vs. KUTUBUDDINKHAN ASHRAFKHAN

JUDGEMENT

(1.) In this ease the learned Additional Sessions Judge of Poona, agreed with the unanimous verdict of the jury finding accused Nos. 1 and 3 guilty of forgery of a will of one Shahjadi Begum, who died on the evening of May 9, 1925. There were other charges of extortion practised on Syed Husein, her maid (Ex. 2), and of misappropriation of certain monies. But on those two latter charges, the accused were acquitted.

(2.) Now the verdict of the jury being unanimous it is conceded that on appeal that verdict must stand, subject to well recognised but limited principles on which such verdict can be upset.

(3.) It is conceded by counsel for the accused in his candid and telling speech that the summing up of the learned Judge was a facie one so far as it went. The only criticism passed upon it was one really of omission in some two or three points. Only one of these points appears to us to have any substance in it and it is more perhaps a point of mis-reception of evidence than any mere defect in the summing up. This point occurs in the evidence of the writer of the alleged document. He is Ex. 31. He was called by the defence, and in his cross-examination the pleader for the prosecution wrongly sought to contradict the witness by putting to him certain statements he had previously made to the Police. That may have been justifiable under the old law, but it is not justifiable under the present law. These statements will be found at page 63 of the appeal paper book. The first statement was with reference to the deed of gift, Ex. 16. Its purport was to contradict what the witness had just said in the Sessions Court, namely, that he could hear what the testatrix Shabjadi was saying whereas in his statement to the police he had said he was not able to hear properly all that she was saying. Some few sentences further on another statement that he had made to the police was put to him, namely that the contents of the will were dictated to him by the complainant, who was consulting Bai (the testatrix) about it. It does not appear from the Judge's notes that "any objection was taken to these police statements up to that point, but we have looked at the vernacular notes and those show that the pleader for the accused objected to the latter statement and that the learned Judge upheld the objection. Consequently no more questions appear to have been asked. Accordingly we are left with this rather curious situation, viz., the second statement made to the police about the dictation of the will, but we have no other answers to show whether at the trial the witness did or did not allege that the will was dictated to him by the complainant.