Sekendar Sheikh And Another vs State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 110 of 1961

Decision Date: 8 February 1963

Coram: B.P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, J.C. Shah

In the matter titled Sekendar Sheikh and Another versus the State of West Bengal, a judgment was delivered on 8 February 1963 by the Supreme Court of India. The bench comprised Justice B.P. Sinha, Justice P.B. Gajendragadkar, Justice K.N. Wanchoo, Justice M. Hidayatullah and Justice J.C. Shah. The petitioners, Sekendar Sheikh and another individual, were opposed by the State of West Bengal. The case involved offences under the Criminal Law relating to forgery and the presenting of a document for registration under an assumed name. Specifically, the first appellant faced charges of forging a valuable security punishable under section 467 of the Indian Penal Code, 1860, and of falsely personating another person and presenting a document for registration punishable under section 82(c) of the Indian Registration Act, 1908. The second appellant was charged with abetment of these same offences. The offence under the Indian Penal Code was tried before a jury, whereas the offence under the Registration Act was tried without a jury. The jury returned a guilty verdict by a narrow majority of four to three. The presiding trial judge, however, set aside the jury’s verdict, holding that there was “absolutely no reliable evidence” to support it, and consequently referred the matter to the High Court under section 307 of the Code of Criminal Procedure, 1898. In addition, the trial judge acquitted the accused of the offence under the Registration Act, and no appeal was lodged against this acquittal.

The High Court examined the evidence and concluded that sufficient material existed to establish the commission of the offence under section 467 of the Penal Code. The appellants argued that, because the trial court had acquitted them of the Registration Act offence and because no appeal had been filed against that acquittal, the High Court was not empowered to consider the evidence originally offered for proving the Registration Act offence in order to convict them of the Penal Code offence. The Supreme Court held that a single piece of evidence may corroborate multiple charges, and that an acquittal for one charge does not render such evidence inadmissible when assessing liability for another charge that it also supports. Furthermore, the Court stated that when a jury reaches a conclusion based on the evidence, that conclusion must be respected unless the evidence is so lacking that no reasonable jury could have arrived at that decision. In circumstances where the jury’s view is reasonable, a reference to the High Court under section 307 of the Criminal Procedure Code is unwarranted.

In the present appeal, the Court refers to earlier authorities Ramanugrah Singh v. King Emperor (1946) L. R. 73 I. A. 174 and Malak Khan v. King Emperor (1945) L. R. 72 I. A. 305. The matter before the Criminal Appellate Jurisdiction is Criminal Appeal No. 110 of 1961, which challenges the judgment and order dated 25 January 1961 delivered by the Calcutta High Court in Reference No. 10 of 1960. Counsel for the appellants was D. N. Mukherjee, while counsel for the respondent, P. K. Bose, was K. B. Bagchi followed by S. N. Mukherjee. The judgment was pronounced on 8 February 1963 by Justice Shah.

The first appellant, Sekander Sheikh, faced trial before the Additional Sessions Judge at Murshidabad, West Bengal, on two charges: (a) forging a valuable security, an offence punishable under section 467 of the Indian Penal Code, and (b) falsely personating another person and presenting a document for registration, an offence punishable under section 82(c) of the Indian Registration Act. The second appellant, Hasibuddin Sheikh, was charged with abetment of both of those offences. The trial on the forging charge and the alleged abetment was conducted by a Sessions Judge sitting with a jury, whereas the trial on the registration‑act offence proceeded without a jury. The jury returned a verdict of guilty by a narrow majority of four to three against both appellants on the forging and abetment charges. However, the Sessions Judge did not accept that verdict; he dismissed it and, invoking section 307 of the Code of Criminal Procedure, referred the matter to the High Court of Calcutta because, in his opinion, there was absolutely no reliable evidence linking the appellants to the alleged forging of a valuable security and he believed that justice required referral.

The same Sessions Judge acquitted the appellants of the offences under the Indian Registration Act. The Calcutta High Court declined to entertain the reference and instead convicted the two appellants of the offence punishable under section 467, read with section 109 of the Indian Penal Code, imposing a sentence of two years’ rigorous imprisonment on each. The High Court also issued a certificate of fitness under article 134(1)(c), after which the appellants appealed to this Court.

The prosecution’s case against Sekander Sheikh consisted of two specific allegations. First, that on or about 15 January 1958, in the town of Berhampore, he forged a document known as a Heba‑nama concerning certain property in favour of Ali Hossain, doing so in the name of Kaimuddin of Debkundu, with the intention of inducing Kaimuddin to part with his property and thereby committing fraud. Second, that on the same day he falsely assumed the identity of Kaimuddin Sheikh, presented the forged Heba‑nama for registration at the Berhampore sub‑registry, and affixed his thumb impressions on the document while claiming to be Kaimuddin Sheikh. The second appellant, Hasibuddin Sheikh, was charged with abetting the first appellant in carrying out both of those acts.

The second appellant was charged with abetting the first appellant in the commission of the two offences by identifying the first appellant as Kaimuddin Sheikh. At trial the prosecution called a witness named Swarana Kumar Dey. He testified that he had engrossed the Heba‑nama in favour of Ali Hossain, which the first appellant executed while purporting to be Kaimuddin Sheikh. He further stated that the first appellant impressed his thumb mark on the document before him as a token of execution of the Heba‑nama. He also reported that the first appellant represented himself to be Kaimuddin Sheikh throughout the proceedings. Additionally, Swarana Kumar Dey said that the executant of the document was identified before him as Kaimuddin Sheikh by the second appellant, Hasibuddin Sheikh. Kaimuddin Sheikh then gave evidence in his own defence. He testified that he had never executed any Heba‑nama in favour of Ali Hossain. He also asserted that he had never impressed his thumb‑mark on any document in the presence of Swarana Kumar Dey. The court then produced a certified copy of the Heba‑nama to the witness, and he denied having executed the original document or presented it before the Sub‑Registrar. Further evidence was tendered that the investigating officer had taken thumb impressions of both appellants in the presence of a magistrate. Those specimen thumb impressions were compared with the thumb impressions recorded in the register at the Berhampore sub‑registry by a handwriting expert. The expert concluded that the thumb impressions of the first appellant matched those in the register and did not match the thumb impressions of Kaimuddin Sheikh. The High Court held that this evidence was sufficient to establish the two offences of forging a valuable security and abetment thereof. It is now well settled that, in a reference under section 307 of the Code of Criminal Procedure, if the evidence can properly support a verdict of guilty or not guilty according to the view taken by the trial court, the jury’s view must prevail because jurors are the judges of fact. In such circumstances a reference under section 307 is not justified. However, if the High Court determines that no reasonable body of men could have reached the jury’s conclusion based on the evidence, then a reference is justified and the jury’s verdict may be disregarded, as explained in Ramanugrah Singh v. King Emperor. It appears that the Court of Session was not impressed by Swarana Kumar Dey’s testimony, but the assessment of the evidence was the jury’s function. The jury apparently accepted the evidence of both Swarana Kumar Dey and Kaimuddin Sheikh, and it cannot be said that no reasonable body of men could have accepted that evidence. At trial, the prosecution relied upon the specimen thumb impressions of the appellants taken during the investigation to support its case. This court has held that there is no infringement of the constitutional provision concerned.

In interpreting Article 20(3) of the Constitution, the Court referred to the decision in The State of Bombay v. Kathi Kalu Oghad. That judgment articulated several propositions that were relevant to the present case. First, it held that the expression “to be a witness” in Article 20(3) did not cover the act of giving a thumb impression, a palm impression, footprints, finger impressions, a specimen writing, or exposing any part of the body for the purpose of identification. The citation for this proposition was (1946) L.R. 73 I.A. 174. Second, the Court explained that the concept of “self‑incrimination” meant the communication of information that was based on the personal knowledge of the person who gave it, and it excluded a purely mechanical act such as producing documents in court that contained no statement reflecting the accused’s personal knowledge. Third, the Court clarified that for a testimony to fall within the prohibition of Article 20(3), the testimony itself must have the tendency to incriminate the accused. Applying these principles, counsel for the appellants conceded that the thumb impressions taken from the first appellant could not be excluded on the ground that they violated Article 20(3). The appellant’s counsel therefore did not dispute the admissibility of those impressions, nor their use for comparison with the thumb impressions recorded in the sub‑registry at Berhampore at the time the document was presented for registration. The appellants, however, argued that the High Court should not have relied on that thumb‑impression evidence when it convicted them under sections 467 of the Indian Penal Code for forging a valuable security and for abetment of that offence. They contended that the trial judge had acquitted them of the offences under sections 82(c) and 82(d) of the Indian Registration Act, which concerned false personation and the presentation of a document in a false character, and that, because the acquittal had not been overturned by a proper appeal, the High Court was incompetent to revisit the matter under section 307 of the Code of Criminal Procedure. The appellants further submitted that the offences under section 467 of the Penal Code and section 82(c) of the Registration Act formed part of the same transaction, and that the prosecution’s case for forging a valuable security was largely based on the same evidence that the trial court had rejected in the Register Act case. The Court found that argument untenable. It observed that forging a valuable security and presenting that security for registration were two distinct offences. Accordingly, the material evidence supporting the charge of forging a valuable security consisted of the instructions given at the time of making the false document, its dishonest or fraudulent nature, and related circumstances.

The Court observed that the material evidence concerned the manner in which the document was written, the character of the document, the way it was executed, and the intention of the accused to fabricate it. It explained that the offence of false personation for presenting a document occurs when a person brings a document before the registering authority while claiming to be someone else. The Court noted that a single piece of evidence may support charges for more than one offence, and that the acquittal of the accused of one offence does not make that evidence inadmissible for assessing the accused’s criminality in another offence that the same evidence corroborates. Accordingly, the issue was not whether the evidence could be admitted, but what weight should be given to it. The Court referred to the decision of the Judicial Committee of the Privy Council in Malak Khan v. King Emperor, which rejected the appellants’ submission. In that case the accused had been charged before the Court of Session with murder and robbery; the trial judge acquitted him of robbery but convicted him of murder. On appeal, the High Court relied on evidence that was material to both the robbery and murder charges as corroborative of the guilt for murder. The Judicial Committee held that the High Court could properly admit such evidence as corroborative of murder, even though the trial court had not accepted it for the robbery charge, citing (1945) L.R. 72 I.A. 305. When the appellants argued that the evidence could not be used for the murder charge, the Committee observed that the Sessions judge’s acquittal of robbery did not amount to a finding that the allegation was baseless; it was merely a finding that the crime was not proven. Even if the judge had disbelieved the story of recovery of stolen property, that finding would not prevent the High Court from assessing the evidence’s value and, if accepted as substantially true, from considering it in determining whether another crime had been committed. Consequently, the High Court was not barred from affirming the conviction of the appellants under section 467 of the Indian Penal Code and for abetment, on the basis of evidence that supported the prosecution’s case, even though the Sessions Court had not accepted that evidence for the false‑personation charge relating to the registration of the Heba‑nama. The Court therefore dismissed the appeal as futile, and ordered that the appeal be dismissed.