Patna High Court
Abhayanand Mishra vs The State Of Bihar on 23 September, 1958
Equivalent citations: AIR1959PAT328, 1959CRILJ893, AIR 1959 PATNA 328
JUDGMENT H.K. Choudhuri, J.
1. The appellant has been convicted by the learned Additional Sessions Judge of Patna under Section 420/511 of the Indian Penal Code and sentenced to undergo two years' rigorous imprisonment besides a fine of Rs. 500/-, in default to 6 months further rigorous imprisonment. The charge against the appellant was that he attempted to cheat the University of Bihar by submitting two applications one in the preliminary form (marked X) and the other in the final form (marked Y) seeking permission to sit for the M. A. Examination of 1954 although he had not passed the B. A. examination.
2. The appellant was a B.A. Student of Tejnarain Jubilee College at Bhagalpur. He appeared at the supplementary B. A. examination of 1951 from Bhagalpur centre. He was however, found adopting unfair means at the examination hall whereupon he was debarred by the University from appearing at any University examination prior to the supplementary examination of 1953. On 4-9-53 a preliminary application in the prescribed form for permission to sit tor the M.A. examination of 1954 as a private candidate was received in the University office.
The application purported to bear the signature of appellant Abhayanand Mishra and certificates from the local authorities, viz., (1) the Head Master of Jaglal Vidyalaya, Bhagalpore, where the applicant claimed to be occupied as a teacher since leaving College, (2) the District Inspector of Schools, Bhagalpur, and (3) the Divisional Inspector of Schools, Bhagalpur Division. The forwarding note purporting to bear the signatures of the Headmaster and the District Inspector of Schools and the one purporting to bear the signature of the Inspector of Schools stated that the statements made in the application had been varified and found to be correct.
All these signatures of the local authorities and the seals of their respective offices were all bogus and fabricated. The Registrar of the University however, without suspecting any foul play granted the application. A letter dated 22-12-53 was accordingly sent to appellant Abhayanand Mishra (Exhibit 1) informing him that he had been permitted to appear at the M.A. English examination to be held in 1954 as a private student with Group A as his special paper.
He was also asked to send the examination tee and the final application form through the Divisional Inspector of Schools or the principal of a Degree College affiliated with the University. A copy of the application form was also enclosed with the letter. The applicant was further asked to send two copies of his attested photographs along with his application. In due course, the final application (marked Y) was received in the University office along with an examination fee of Rs. 85/- and two photographs of the applicant.
It is no longer disputed that the signature of the Inspector of Schools below the forwarding note on this application was also forged. So far as the two photographs are concerned, it is admitted that they are the photographs of the appellant. In due course, admit cards were forwarded to the. Principal, T.N.J. College, Bhagalpore, who was the Superintendent of Examinations. It may be mentioned that the original date of commencement of the M. A. examination was on 12-4-1954, but it was later on extended to 5-7-1954.
The fraud came to light in May 1954. Mr. B. B. Mazumdar, an Inspector of Colleges, Bihar University, had gone to Monghyr in the first week of May on a tour of inspection. While he was inspecting the local college a young man of 28 or 30-years, who looked like a student, came to him and told him that a student named Abhayanand Mishra, who had not passed his B.A. examination, had been permitted by the University to appear at the M.A. examination. Mr. Mazumdar noted the name & on return to Patna spoke about it to the Registrar and the Controller of Examinations of Bihar University.
The University authorities immediately started an investigation and it was discovered that the appellant had not passed his B.A. examination and that a circular had also been issued debarring him from taking any University examination prior to the supplementary examination of 1953 On 22-5-54 the Registrar requested the Principal of T.N. Jubilee College, Bhagalpore, to return all the admit cards of candidates for the M.A. examination which was to be held in July 1954.
The Principal returned 17 admit cards including the one standing in the name of Abhayanand Mishra. The remaining 18, out of the total 35 admit cards had already been distributed among the students. On the same day, that is, on 22-5-54 the Controller also wrote a letter to Abhyanand Mishra at his village address asking him to submit his original B.A. diploma. A third letter written by the Controller to the Inspector of Schools, Bahgalpure Division, on 22-5-54 elicited the reply that Abhyanand Mishra had served as a teacher in Jag-lal Vidyalaya, Bhagalpore, in a leave vacancy for a short period from the 14th February to 22-3-1949 and that thereafter he never served in that school.
So far as the letter issued by the Controller to Abhyanand Mishra at his village address was concerned, no reply was received. A telegram was thereupon sent to him at the same address asking him to comply with the direction about submission of his B, A. diploma. No reply was received by the University to this telegram either. Thereafter, on 29-6-54 the applicant's name was removed from the roll of examinees. On 27-9-54 the Registrar of the University sent a written report about the case to the officer-in-charge, Pirbahore police station, Patna, and it was on the basis of this report that the first information report was drawn up.
The police after investigation submitted charge-sheet against the appellant. He was charged in the court below under Section 465 and Section 420/511 of the Indian Penal Code. The learned Judge held that there were no materials in support of the charge under Section 465 of the Indian Penal Code but that the charge under Section 420/511 of the Indian-Penal Code had been brought home to the appellant. He accordingly acquitted the appellant of the former charge and convicted him under Section 420/511.
3. The defence was a plea of innocence. The appellant denied that he had sent the applications X and Y, to the University or the photographs or any money whatsoever. He suggested that one Naresh Mohan Mishra, who was his enemy, had somehow obtained copies of his photographs and forged his signatures on the two application forms, X and Y, and sent them to the University. The same man was alleged to have informed Mr. B. B. Mazumdar about it with a view to put the appellant in trouble.
4. The findings of the learned Judge that the appellant had not passed his B.A. examination and that the signatures and seals of the forwarding officers on the two applications were not genuine have not been disputed on behalf of the appellant. The only point argued in appeal was that there was no evidence to connect the appellant with the two applications. It was submitted that the only evidence to connect the appellant with these two applications consisted of the opinion of the Government Handwriting expert examined on behalf of the prosecution, which by itself was not sufficient to establish the guilt of the appellant. It was also pointed out that a different opinion had been expressed by Mr. Bennet (D.W. 2) another expert examined on behalf of the appellant.
5. Shri Shamshul Haque, the Government Handwriting expert (P. W. 18), has deposed that he compared the disputed signatures of the appellant on applications X and Y with his specimen signatures marked by him as A series. He was of the opinion that having regard to the slant of the two sets of hand writings, which in each case ranged between 70 to 80 degrees, the forearm movement used in both, the alignment of the writings, their pen presentation the characteristic similarity of certain letters and other peculiar features the two signatures on X and Y tallied with the specimen signatures of the appellant.
He further stated that he did not find in the two signatures on X and Y any trace of tremor, hesitation, careful retouching, careful penlifting or any other characteristic which are usually present when a forger attempts to copy the writing of another person, Mr. Henry Bennet (D.W. 2), on the other hand, was of the view that the disputed signatures on X and Y do not tally with the admitted signatures of the appellant, He also gave a number of reasons in support of his opinion. The learned Judge considered the opinions of both the experts and compared the two sets of writings himself.
He has pointed out that some of the dissimilarities referred to by Mr. Bennet were really not of much significance because he found that there were variations, deliberate or natural, even in the admitted writings. On the contrary, he noticed some outstanding similarities in the two sets of writings. He has particularly referred to the word "Mishra" which has been written in both the sets of writings in the same characteristic way. On close examination of the features in the two sets of writings he observed as follows:
"I am not prepared on a close scrutiny of these handwritings to accept that the signatures X and XI are forged ones in the sense that they have not been written by this accused".
I have also examined the two sets of writings and it seems to me that the general characteristics of the two sets of writings, the formation of letters, and the mannerism invariably used in writing the surname "Mishra" cannot be the result of accidental coincidence.
6. Learned Counsel for the appellant has urged that the Court itself has assumed the role of an expert in this case. I do not, however, think that the Court's competence to use its own eyes for the purpose of deciding whether the two handwritings placed before it were similar Or not can be questioned.
It has been held in Parsad Mahto v. Mt. Jasoda Koer, AIR 1937 Patna, 328 that where a case against a person depends upon a comparison of the handwriting the Court is competent to use its own eyes for the purpose of deciding whether certain handwritings placed before it are similar or not. In a matter of this kind, the Court cannot certainly act like an automaton accepting without scrutiny an expert's opinion as infallible.
7. The opinion of Mr. Bennet suffers from the defect that it was given by a remunerated witness. He knew beforehand why he had been called and what the party calling him wished to be proved. The witness stated that 10 days before he came to court he was approached by the appellant about this case. The appellant told him that he repudiated the two signatures on X and Y. The witness was also given a copy of the evidence of the Government Handwriting expert before he was examined in court. He further admitted that he had been paid his fees in two instalments before he came to depose. It is not improbable that he had an unconscious bias in favour of the appellant. These circumstances to a great extent detract from the weight to be attached to the witness's opinion.
8. As to the value of expert evidence on disputed handwriting their Lordships of the Supreme Court have in Ramchandra v. State of Uttar Pradesh, (S) AIR 1957 S. C. 381 observed that it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction. Their Lordships, however, have added that such evidence may be relied upon along with other various items of external and internal evidence relating to the disputed documents.
9. There are several circumstances which indicate that it was the appellant who had signed the two applications, X and Y. If really the appellant was the victim of a conspiracy the letter and the telegram sent by the Controller of examinations to him at his village address should at once have put him on guard and he should have started an enquiry as to why the University was suddenly asking him to produce a document which he never possessed. He, however, took no such steps.
He gave no answers to those urgent communications. What he actually did was very significant. He submitted an application in the prescribed form for permission to sit for the B.A. examination on 26-7-55. Clearly, his attempt to cheat the University having failed he had no other option but to make an application for permission to sit for B. A. examination in the normal course.
10. The second circumstance which is of importance is the submission of two photographs of the appellant along with the final application form Y. Ordinarily an outsider is not expected to be in possession of the applicant's photographs. It was vaguely stated by the appellant that since he is an athlete people used to take Ms photographs. There is no material in support of this allegation. The fact that not only two photographs but also a sum of Rs. 85/- was deposited along with the application is also of considerable significance. The suggestion that the alleged enemy of the appellant had deposited the money is too far fetched.
The so-called enemy could easily have put him into trouble without going to the extent of depositing the examination fee. The application X was alone sufficient to condemn the appellant as a person who had made an attempt to cheat the University. Further, a man inimically disposed towards the appellant would not have perhaps thought of adopting such a long and tortuous method, such as, forging the signature of so many persons at two stages and manufacturing different kinds of office seals with a view to wreak his vengeance. The appellant's suggestion appears to me to be entirely fantastic.
11. There is also another circumstance which throws considerable light on the point at issue. The appellant's registered number is 3495 of 1947 (Patna University). Normally, an outsider is not likely to know the registered number of the appellant unless perhaps he took the trouble of coming to Patna with a view to elicit this particular information from the University office. Further, in the application the appellant mentioned also his exact age. This, again, Was a matter which was within the particular knowledge of the appellant himself. It was submitted by learned counsel that the correct date of birth of the appellant was the 13th August 1929.
But this date was mentioned in the application as 13th August 1930. It was argued that this difference in the year indicates that the application had been forged by an outsider in the name of the appellant. I am not impressed with this contention. It is possible that the year "30" was a clerical mistake for "29". As the Court below has suggested, it may also have been due to the fact that the Matriculation certificate which contained the exact date was not ready at hand when the application form was filled up. The fact that the date and the month were correct carries great weight. An outsider is not likely to know these particulars.
12. The prosecution relied also upon the evidence of Raja Ramchandra Prasad, Accountant of the University office (P.W. 21), who stated that it was the appellant who had once come to him to enquire as to what became of his admit card. He suggested that this enquiry was made in respect of application Y. I do not, however, attach much importance to the evidence of this witness. It is little difficult to believe that the witness should have remembered the face of the appellant, who is alleged to have made the aforesaid enquiry. The incident, if at all must have taken place in 1954 while the witness deposed in Court in 1957. No test identification parade was also held in this case. It is, therefore, unsafe to rely upon this evidence as proving that it was the appellant who had made the enquiry in question.
13. Learned counsel laid great stress on the fact that the appellant had not taken out the admit card from the office of the Principal, T.N. Jubilee College, Bhagalpore, although several examinees had already taken delivery of their respective cards. The submission was that if the appellant had committed a fraud he would have seized the earliest opportunity of taking delivery of the card from the college office. I am unable to hold that there is any substance in this contention. There is nothing to indicate that the appellant actually knew that the admit cards had already arrived in the office and were being distributed.
Further, as the learned Standing Counsel has pointed out, the appellant perhaps did not expect that the card would be sent to the Principal of Bhagalpore College since he had specifically stated in his application that he wished to be examined at Muzaffarpur. It is highly probable that the appellant had expected that the University would send his card to the Superintendent of Examinations at Muzaffarpur.
14. In this application the applicant had given his present address as "c/o Professor Kedar Nath Mishra, R.D. and D.J. College, Monghyr." Learned counsel argued that it was necessary for the prosecution to examine Mr. Mishra in this case in order to establish that the appellant had arranged to get his letters at that address. There is, however, nothing to show that Mr. Mishra knew anything about the arrangement. It is not all difficult for a scheming person to arrange to get his letters at faked address.
15. It was finally submitted by learned counsel that the evidence of Mr. Muzamdar clearly shows that the appellant had an enemy who was working against him. The appellant led no evidence to show who Naresh Mohan Mishra was or what kind of enmity he had with him. A vague allegation that Naresh Mohan Mishra was his enemy cannot take the appellant very far. A young man had undoubtedly brought the case of the appellant to the notice of Mr. Mazumdar. But that by itself is no ground to hold that there was enmity between him and the appellant.
As a conscientious and right-thinking man the informant brought the serious irregularity to the notice of Mr. Mazumdar which, if successful, would have brought disrepute to the University. It is quite possible that he had done so without even knowing the appellant personally. I am not satisfied from the materials on record that this young man had an animus against the appellant. The suggestion that he had forged all these documents and then carried the information to Mr. Mazumdar does not deserve serious consideration.
16. On a review of all these circumstances and the overall features of this case I am of the view that the evidence of the Government Handwriting expert I has been sufficiently corroborated. I am satisfied that it was the appellant who had signed the applications X and Y. The learned Additional Sessions Judge was quite right in convicting the appellant under Section 420/511 of the Indian Penal Code.
17. In the result, the appeal fails and is dismissed. The conviction of the appellant and the sentence imposed upon him are affirmed.