PADAM PROSAD UPADHAYAYA Vs. EMPEROR

JUDGEMENT

(1.) In this case Padam Prosad was tried at the High Court Sessions by my learned brother, Mr. Justice Jack, and a common Jury on charges laid under Secs.193 and 471 of the Indian Indian Penal Code together with Sujauddin Ahmad and Kanhya Lal He was convicted on the unanimous verdict of the Jury of abetment of the offence of fabricating false evidence and also on the substantive charge of dishonestly using as genuine a forged document knowing the same to be forged. Kanhya Lal was acquitted of both charges and Sujauddin Ahmad was convicted of abetment of the offence of fabricating false evidence and also of abetment of the offence of dishonestly using as genuine a forged document knowing the same to be forged. On the 19 March, 1927, a Nepali girl called Rajkumari presented a petition of complaint to the Additional Chief Presidency Magistrate charging Padam Prosad with diverse offences and in particular with the offence of having sold her to one Hiralal Agarwala for immoral purposes. She alleged that she was of the age of about 14 years and asked that process issue against the accused under Section 372 of the Indian Penal Code, that is for the offence of selling a minor girl for immoral purposes. The Magistrate commenced the trial of the accused on the 14 of April, 1927. On the 17 May, 1927, he framed charges against the accused including a charge under Section 372. On the 6 of August, 1927, he gave judgment acquitting the accused. The case for the prosecution at the High Court Sessions was that Padam Prosad in the course of the trial before the Magistrate had filed and made use of a document purporting to be a certified copy of an extract from the daily register of births of the year 1808 kept in thana Dasaswamedh, Benares, with a view to show that the girl Rajkumari was over the age of 18 years at the time at which it was alleged that she had been sold; and that at the time when the document was filed and used as aforesaid it had been altered in four places--in two places 1909 had been altered to 1908 and in two places the name "Baber" had been inserted in front of the name "Jung Bahadur", the effect of the forgery being that whereas the genuine entry recorded the birth as on the 19 June, 1909 and the father as being Jung Bahadur, the document as forged showed the date of birth as the 19 June, 1918, and the father as Baber Jung Bahadur. It was proved at the trial that application had been made for the certificate on the 26 of April, 1927, by Sujauddin who was acting as Padam Prosad's tadbirkar in the case before the Magistrate. The certificate is in Urdu script and the alterations made in it have been made so as not to be noticeable though a careful examination discloses that the document has been tampered with. It is proved, however, that Padam Prosad does not know Urdu script. Upon the evidence, there can be no doubt that Sujauddin obtained the certificate in order that it might be altered and used as part of the defence of Padam Prosad. The sole question, so far as Padam Prosad is concerned, was the question whether or not Padam Prosad had been proved to have known that the document had been altered at the time when he used it for the purpose of his defence before the Magistrate. Upon that question the evidence before the Jury was almost entirely circumstantial. The sole purpose of the forgery was to defeat the charge under Section 372 and the Jury had to consider whether in all the circumstances of the case, it was a safe and reasonable inference to hold that the document had not been forged in the interests of Padam Prosad without Padam Prosad being well aware of what was being done in his interest. The prosecution was able to reinforce this consideration by the evidence of Mr. Pashupati Bhattacharjee, the Advocate who had conducted his defence before the Magistrate. Mr. Bhattacharjee's evidence makes it clear that Padam Prosad was well aware of the importance to him of showing, if he could, that the girl was above 18 years of age at the time of the offence charged, that Padam Prosad came from Benares and attended the conferences held on behalf of the defence that Sujauddin also attended at these conferences when the question of the proof of the girl's age was discussed; that Sujauddin was the person who read the Urdu documents and that the certificate afterwards filed before the Magistrate was produced at these conferences and was discussed. The defence, on the other hand, contended that there was no direct evidence to show that Padam Prosad knew what Sujauddin had been doing on his behalf, that he was wholly unable to read a word of the document in question, that he was relying upon Sujauddin for the preparation of the defence and for obtaining all documents which might assist the defence. They relied upon a statement of Mr. Bhattacharjee that Padam Prosad's instructions to him were that he was quite ready to cite witnesses from Benares Collectorate to prove the certificate which they were putting in. They relied also on the fact that at the close of the trial in the Magistrate's Court no attempt had been made by Padam Prosad to get the document back though it would have been quite easy to do this before any question of forgery had been, raised by Rajkumari. They relied further upon a statement made by Padam Prosad on the 24 September, 1927, when the investigating officer first questioned him about this document--the statement being that Sujauddin had told him that Rajkumari's birth certificate would be available at Benares Collectorate and that he had asked Sujauddin to take a copy of the extract and to make it over to Mr. Bhattacharjee.

(2.) Broadly speaking these were the considerations upon either side. It seems clear to me that the question was entirely for the Jury who had to make up their minds whether it was proved that Padam Prosad when he used the document was aware that it had been altered. There was evidence up a which the Jury were entitled to find him guilty but it cannot be said in this case that a verdict of acquittal would be unreasonable. The accused had a serious case to meet but he had at the worst a good fighting chance.

(3.) It may here be emphasized that at no time did the prosecution as part of their case allege or undertake to prove what the age of the girl was. No evidence was called upon that point. Rajkumari herself could not very well prove the date of her birth, but in any case no question was asked of her in examination in chief bearing upon the question of her age. Some questions were asked of her in cross examination for the purpose of showing that she had given different dates at different times. It is true that each of these different statements, if true, made her out to be a minor at the material time.