Patna High Court
Upendra Nath Das And Ors. vs Emperor on 18 December, 1917
Equivalent citations: 46IND. CAS.842, AIR 1918 PATNA 279
JUDGMENT Ali Imam, J.
1. The three appellants, Upendra Nath Das, Bairagi Jina and Lakshmi Dhar Mahanti, have been convicted and sentenced by the Sessions Judge of Purulia under Sections 466 and 193 of the Indian Penal Code. The facts of this case are as follows: One Judhistir Padhan had borrowed some money from one Gangai Barik and had given him a blank stamp paper as security. When the loan was repaired Gangai returned to Judhistir a paper which was different from the one that had been given as security. On a complaint lodged by Judhistir against Gangai, a Police investigation of the complaint was held with the result that Gangai, Bairagi and Nandai were put upon their trial at Balasore. It appears that all stamp papers sold by vendors in Balasore are required to bear the thumb impressions of the vendor and the vendee. In the trial of that case one of the points under enquiry was whether the two impressions on the stamp given by Gangai to Judhistir bore the thumb impressions of Bairagi and Nandai.
2. Some experts were examined and at one stage of the trial the defence suggested that there were more than one impression at each of the two places on the stamp instead of a single impression. This happened on the 18th of August. On the 19th, when the charges were framed in that case, the Superintendent of Police was informed of a conspiracy to tamper with the impressions and that the accused in that case intended to call an expert to destroy the evidence offered by the prosecution. This apprehension was communicated to the trying Magistrate and the document (Exhibit I) was placed by him in a sealed cover. On the 14th of November the accused in that case called an expert, the document was taken out of the cover and shown to him and he with reference to one of the impressions gave his evidence in direct conflict with the expert evidence already produced by the prosecution. This thumb impression (Exhibit la ) was alleged to be of Bairagi's thumb. With reference to Exhibit. Ib alleged to be thumb impressions of Nandai, the defence expert deposed to its being too blurred to give any opinion without an enlargement. No enlargement was made and the Magistrate relying on the defence expert evidence acquitted Bairagi and Nandai and convicted Gangai. Matters seemed to have ended there, except in so far that an appeal preferred by Gangai was dismissed on the 21st of December and that the High Court was moved against the acquittal of Bairagi and Nandai with no success.
3. On the dismissal of his appeal Gangai did not surrender to his bail and was arrested sometime in January and was placed in jail. Not very long after on some information received a Deputy Magistrate visited Gangai in Jail who made a confession. Early in May the accused Lakshmi Dhar was arrested and placed before a Magistrate, before whom he made a confession implicating the accused Bairagi as the man who had taken him to one Lal Mohan Sahu, where Bairagi and the accused Upendra Nath Das had asked him to put his thumb impression on a paper This thumb impression, the document shows, was a super-imposition and has been identified as that of Lakshmi Dhar. The prosecution case is that this super-imposition (Exhibit la) and the other super-imposition (Exhibit I b) were the result of a conspiracy to tamper with the evidence in the case in which Gangai, Bairagi and Nandai were on their trial and that the conspirators among others were the appellants Upendra Nath Das, the Peshkar of Mr. Godfrey who tried the case, Bairagi Jina and Lakhshmi Dhar Mahanti. An examination of the documents leaves no doubt in our minds regarding the tampering. There is also little doubt that the document was tampered with to destroy the prosecution case before Mr. Godfrey and that it took place after the document was placed on the record of that case and was marked as an exhibit. The three appellants before us have been found guilty of having tampered with this document and the question before us for consideration is whether the evidence on the record is sufficient to sustain their conviction.
4. The evidence consists of the deposition of Gangai, the approver, and the retracted confession of Lakhshmi Dhar. We are in complete agreement with the Sessions Judge in that the approver's evidence is wholly unworthy of trust inasmuch as it is inconsistent and discrepant with the confession of Lakhshmi Dhar. The presence of Lakshmi Dhar at the tampering is conclusively proved by the fact that the super-imposing impression (Exhibit la ) is of his thumb. There can be no doubt, therefore, that he was not only present at the tampering but had taken a prominent part in the commission of this offence. The disagreement between his version of events and the version given by Gangai must necessarily result in discarding the evidence of the latter as absolutely valueless. The result is that there remains only the confession of the appellant Lakshmi Dhar to support the conviction of the appellants Upendra Nath Das and Bairagi Jina. This confession is a retracted one. It is also worthy of note that the confession is not self implicating in the same degree as it implicates the co prisoners. In his confession Lakshmi Dhar clearly wants to make out that he was almost an unconscious instrument in the hands of the other conspirators. His confession clearly does not make him out to be in pari delicto with the others. It is also a confession that has been retracted. In the circumstances it is unsafe to rely upon it without material corroboration. As to this, the Crown, represented by the learned Government Pleader, frankly admits there is no such corroboration affecting the appellant Upendra Nath Das. All that is urged against him is that the document under notice was in his custody and that he must have had access to it even when it was put in an envelope and sealed by Mr. Godfrey. We are not at all satisfied on the evidence that this contention is sound. The evidence is that the envelope was not properly gummed down nor was the seal put in the right place. There are also other circumstances in the case showing that the appellant Upendra Nath Das was not the only person who could have had access to it after it was brought on the record of the case tried by Mr. Godfrey. In the circumstances, the evidence against this accused is limited to the, retracted confession of Lakshmi Dhar who clearly implicates himself in a lesser degree than this appellant. We do not, therefore, consider this confession sufficient to sustain the conviction of Upendra Nath Das and we accordingly set aside the conviction and sentences passed upon him by the learned Judge. As regards Bairagi Jina it has been suggested that inasmuch as the original impression (Exhibit I a) on the document has been proved to be his, the super-imposition must have been done for his benefit, and, therefore, a legitimate inference may be drawn against him as having participated in the tampering and that thereby some corroboration is obtainable of Lakshmi Dhar's confession. We are not disposed to take this view of the case, as the thumb impression of Nandai also was on the document in question and it further appears that the tampering with this impression has been more successfully achieved, for it has been completely blurred by the super-imposition of somebody's thumb impression. It is evident that Bairagi Jina was not the only person interested in tampering with the document. Nandai's interest was no less than his and unless there is some independent and trust-worthy evidence of the exclusion of Nandai from the conspiracy, it is not open to us to hold that the interest of Bairagi is in itself sufficient to regard it as a material corroboration of the confession. The learned Vakil on behalf of the appellants rightly contends that it might have been Nandai or persons interested in him who brought about the tampering, as in the case of this man the tampering was so complete that the original thumb impression became unrecognizable. The result is that in the case of Bairagi Jina, as it is in the case of Upendra Nath Das, we have nothing to go upon but the retracted confession of Lakshmi Dhar which we have already found, to be insufficient. We accordingly set aside the conviction and sentences passed upon him.
5. The case of the appellant Lakshmi Dhar stands on a different footing. His confession, retracted as it is, is materially corroborated by the clear evidence furnished by the super-imposing impression on the document. It has been proved to be his and there can be no doubt that he is guilty of the tampering and that he has been rightly convicted and sentenced. We dismiss his appeal and confirm the sentences passed upon him.
Roe, J.
6. I concur. Seeing that Gangai's evidence was when examined found to be completely valueless, it is fair to surmise that under cross-examination Lakshmi Dhar might have proved equally untrustworthy. His first confession was made at a time when there was at least a probability that Gangai would be pardoned and called as an approver. It reads as if it was an attempt to obtain a pardon. Without this confession and the evidence of the approver there would be nothing but vague suspicion of the guilt of Upendra and Bairagi. I am not prepared to say that these lift that suspicion to the level of proof.
7. Mr. Godfrey seems to have been so inexplicably careless with regard to the custody of these documents that it was open not only to Upendra Nath Das but also to any Chaprasi or private servant of his to obtain possession of it. With regard to Bairagi I cannot see that the evidence against him is any more conclusive than against Nandai whom the learned Sessions Judge has found it impossible to convict.