CHUNKU Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision on behalf of 13 persons, who have been convicted under Secs.465 and 471, I. P.C., and sentenced by a Magistrate to one year's rigorous imprisonment. The facts of the case as set forth in the judgment of the learned Sessions Judge are as follows. There was a partition case of the village of Kairi in Banda District begun in the year 1909. These proceedings went on until 1918 when the Board of Revenue rejected the application for partition on the ground that the village was "khetwat." Some years later in 1923 some of the cosharers applied to the Collector and suggested that the partition proposed in 1909, which had apparently proceeded as far as the preparation of khurras, should be recorded as it stood in the papers by treating it as an application for partition made on agreement. On 17 March 1924 the cosharers of the village were summoned to Court and asked to file an agreement to the effect that they had made a partition of this village into the khurras prepared by the revenue Court and that they had agreed to this partition.

(2.) Various delays occurred and in 1925 the papers were filed Some years later on 19 April 1926 an application Exs. 10 and 10-A, was made to the revenue Court purporting to be under Section 107, Land Revenue Act and purporting to be by 24 cosharers. In this application there are no cosharers named as opposite parties. The application was accompanied by an agreement Exs. 11 and 11-A. The application states that the cosharers had agreed to the khurras among themselves dividing the village into 18 mahals and asking that mutation should be made according to this partition in the revenue papers. The agreement set forth that the parties to that agreement had agreed to the partition into the 18 mahals already effected. Then there was an application made on 29 July 1926 by Jagannath and Sheo Pershan and two others, Ex. 40, to the effect that they do not want the partition of 1909 to be carried into effect. An enquiry was started by the order of the District Magistrate of 7 August 1926, and it was ascertained that the signatures of Sheo Pershan and Jagannath appeared on the application Exs. 11 and 11-A and on the agreement Exs. 10 and 10-A. These persons denied that these signatures were genuine, and the 13 accused were prosecuted under Secs.465 and 471 in regard to these two documents. The evidence for the prosecution consisted of the statements of Sheo Pershan and Jagannath that they did not make these signatures, and their evidence was confirmed by the fact that they had all along been objecting to this partition into these khurras. There was also the evidence of the Government Examiner of Questioned Documents, and he stated that the signatures on the application and agreement were not by the same persons as the signatures of Sheo Pershan and Jagannath submitted to him. The defence on the other hand, called a witness D. W. 2 Raggu, who stated that all the accused were present when the documents in question were executed by Sheo Pershan and Jagannath, in their written statement the accused also pleaded that the signatures of Sheo Pershan and Jagannath were made in their presence. On the evidence before them the two lower Courts have come to the conclusion that it is proved that the signatures are not made by Sheo Pershan and Jagannath. The Courts have also held that as the accused pleaded that those signatures were made in their presence therefore the accused must have had knowledge of the fact; that the signatures were not genuine. The 13 accused are persons who admit that they signed the agreement and the application, Exs. 10 and 11, and they also made an appeal No. 89 of 1929 on the strength of that application and that agreement having been jointly executed by Sheo Pershan and Jagannath.

(3.) Some point was taken for the defence that the Government Examiner of Questioned Documents was first questioned about the signatures of Sheo Parshan and Jagannath on the verification on the back of the agreement. Subsequently he was recalled as a witness of the Court under Section 540, Criminal P.C., and also asked in regard to the signatures on the front of the agreement and on the application which purported to be. those of Sheo Parshan and Jagannath. It was argued that the accused should have had a further opportunity to adduce additional evidence in regard to those signatures on the front of the agreement and on the application. But it appears to me that the defence evidence would be the same for the signatures on different portions of each document and that the defence could not have been in any way prejudiced by the procedure. It was also not shown to me that the Court was acting in any way outside its powers in recalling the Government Examiner of Questioned Documents as a witness under Section 540, Criminal P. C, in order to rectify an obvious omission in his evidence recorded as a prosecution witness. Section 540 provides that the Court may recall a person under that section who has been already examined as a witness and the section provides that the Court shall recall such person if his evidence appears to it essential to the just decision of the case. In the present case it is clear that the evidence of the Examiner of Questioned Documents was essential to the just decision of the case in regard to all the signatures and not merely in regard to the two signatures about which he was asked in his examination as a prosecution witness. The procedure of the Court therefore was perfectly correct. No application was made after the examination of this witness to the effect that the defence desired to call additional evidence on the point.