(1.)PANNALAL, the petitioner before me, was convicted by the Sub-divisional Magistrate, Bhim under sec. 193 Indian Penal Code and his. conviction was upheld by the learned Sessions Judge, Udaipur. The Sub-divisional Magistrate awarded a sentence of four months' rigorous imprisonment and a fine of Rs. 100/-; in default of payment of fine to further rigorous imprisonment for one month. The appellate court, however, reduced the period of imprisonment from four months to one month but enhanced the fine to Rs. 300/ -. The petitioner has filed this revision challenging his conviction, alternatively praying for the reduction in the sentence.
(2.)THE facts broadly stated are that one Chothmal and the petitioner filed a suit in the court of the Munsif, Bhim against one Jeta on the basis of a Khata, Ex. P. 5 alleging that it bore the thumb impression of Jeta. THE civil suit was dismissed by the Munsif on a finding that the Khata was a forged one. THE dismissal of the suit by the Munsif was upheld in appeal and in revision by the High Court. THE Munsif while dismissing the suit directed that the petitioner and two others, i. e. Chothmal and Ranglal should be prosecuted under secs. 467, 471 and 193 Indian Penal Code. THE complaint was accordingly filed by the Munsif, Bhim in the court of the Sub-divisional Magistrate, Bhim. THE Sub-divisional Magistrate, Bhim discharged Chothmal and subsequently acquitted Ranglal, but convicted Pannalal under sec. 193 I. P. C.
In this revision, Shrikrishanmal appearing for the defence advanced a number of arguments to show that the conviction of Pannalal is not justified.
It was contended in the first instance that the lower appellate court was in error in comparing the disputed and the admitted thumb impressions of Jeta and basing his conclusion upon that comparison. It was contended that under sec. 73 of the Indian Evidence Act, 1872, the Presiding Officers are competent to compare signatures, writings and seals only. The comparison of thumb impression is not contemplated by sec. 73. I am not prepared to accept this argument.
The word "sign" has been defined in sec. 3 (56) of the General Clauses Act, and it reads as follows: - "sign" with its grammatical variations and cognate expressions shall, with reference to a person who is unable to write his name, include "mark" with its grammatical variations and cognate) expressions. "
Obviously, it includes a thumb impression. Sec. 73 Evidence Act permitting comparison of signature, writing and seal also is intended to be quite comprehensive and on a liberal interpretation, I do not see any justification in holding that the Presiding Officer is unable to compare thumb impressions under sec. 73, Evidence Act for the purpose of determining the identity or otherwise of the thumb impressions, or at any rate, for appreciating the evidence of experts and basing their decisions. Under sec. 45, Evidence Act, opinions of the experts in connection with finger impressions is admissible and the Presiding Officers of Courts, while appreciating evidence of the experts must of necessity resort to comparison for a proper and correct appreciation of the evidence of the experts. For these reasons, I hold that the Sessions Judge was quite competent to compare the thumb impressions and this finding cannot be vitiated on this ground.
Next it was contended that at any rate, the Sessions Judge should not have based his conclusion upon his own comparison. He could have used it only for the purpose of appreciating and appraising the evidence on record. A perusal of the order of the learned Sessions Judge shows that he did refer to the evidence of the expert and recorded a conclusion that the evidence of the expert deserves to be accepted in the light of his own comparison. It cannot, in the circumstances, be said that the learned Sessions Judge has based his conclusion merely upon his own comparison. It will be hardly fair to emphasize particular remarks made in the judgment without co-relating it to the other portions of the judgment. The judgment, read as a whole, clearly shows that the ultimate conclusion reached by the learned Sessions Judge is based on a consideration of the evidence of the expert tested in the light of impressions formed by his own comparison. The contention of the learned counsel, Therefore, deserves to be rejected.
Further, it was urged that Shri Krishna Behari Lal is not at all an expert and, therefore, his evidence is wholly inadmissible. It may be mentioned here that when the witness was examined by the trial Magistrate, the petitioner or the other accused did not put any question to shake his claim to be an expert. When the witness was recalled and examined by the first appellate court, the petitioner brought out in cross-examination a statement from the expert that he passed the S. C. D. Examination from the Institute of Applied Science of Chicago only after a correspondence course and that he did not acquire any practical training in any institution or under an expert. In support of his argument, Mr. Shrikishanmal referred to United States Shipping Board vs. S. S. "st. Albans'' (1 ). In this case, all that their Lordships of the Privy Council said is, "that, the witness must have made a special study of the subject or acquired a special experience therein. That is, he must be skilled and have adequate knowledge of the subject. " It does not throw any light on the question as to what should be the mode of study and of acquiring special experience. The Privy Council authority, therefore, cannot lend any substantial assistance to the learned counsel for the petitioner.
Mr. Shrikishanmal further referred to an unreported judgment of this Court in S. B. Civil Second Appeal No. 330 of 1952, Ram Narain vs. Hari Narain and invited my attention to the following observations made by Sharma, J. : - "i also find from the evidence of Mr. Mehta himself that he did not receive any practical training in the art of finger print identification in any institution or under any expert. All that he did was to acquire some knowledge in finger print identification by means of correspondence course. . . . . . . . . . . . I do not think that looking to the qualifications of Mr. Mehta, it can be said that he is specially skilled in the art of identifying thumb impressions. "
(3.)I do not think that the learned Judge intended to lay down a rule of law that a person cannot claim to be an expert on the basis of a correspondence course and that he must necessarily receive practical training in the art of finger print identification in an institution or under an expert. I am not prepared to accept as an inflexible principle that a person can never acquire special experience and be an expert merely on the basis of a correspondence course even after passing an examination from a recognised institution. In my opinion, whether a particular person should be treated as an expert is in the ultimate analysis a question of fact to be determined on a consideration of all the circumstances relating to the acquisition of special experience by a person claiming to be an expert. In the present case, on the materials that have been brought on record, I am not prepared to hold that Shri Krishna Behari Lal's claim to be an expert is without justification. In this view of the matter, the argument advanced by Shri Shrikishanmal that the evidence of the expert should be treated as inadmissible is rejected.
Next, it \vas urged that the petitioner and others having been exonerated of charges under secs. 467 and 471 I. P. C. , his conviction under sec. 193 I. P. C. cannot be maintained. The argument is developed thus : To sustain the charge of fabricating false evidence, it will be necessary to record a finding that the thumb impression on Ex. P. 5 was a forged one and this funding according to the learned counsel for the petitioner cannot be arrived at or maintained in view of the discharge of the petitioner under secs. 466 and 471 I. P. C. In the first instance, I do not see any legal bar for arriving at such a finding in connection with the determination of the guilt of :he petitioner under sec. 193 I. P. C. on the basis of the exoneration with respect to other charges, especially when the question arises during the course of the one trial. Secondly, even without a definite finding regarding forgery, the petitioner can be treated as having fabricated false evidence if it is shown that he made a document purporting to be one on behalf of Jeta, when in fact there was no justification or authority for making of that kind of document.
After giving my careful consideration to the argument of the learned counsel for the petitioner and scrutinising the facts and the circumstances of the case, I do not find any adequate ground for differing from the findings of the courts below that the accused petitioner has fabricated false evidence and is consequently guilty under sec. 193 I. P. C.
I may also take note of one more argument that was advanced by Mr. Shri Kishanmal. It was pointed out to me that after the expert was re-called and re-examined by the Sessions Judge, the accused was not examined under sec. 342 Cr. P. C. This should have been done, because the accused was entitled to an opportunity to explain any fresh incriminating evidence brought against him. This by itself, however, is not sufficient for vitiating the decision of the learned Sessions Judge, irrespective of the consideration of the prejudice to the petitioner. The accused denied having taken any part in connection with the forging of the thumb impression, no serious prejudice can be deemed to have been caused to the petitioner.