Udayanath Sahu vs State of Orissa

P.K. Mohanti, J.—This criminal revision is directed against an order of conviction u/s 467 read with Section 109, Indian Penal Code and a sentence of R.I. for two years and also a fine of Rs. 300/ - with a default sentence of R.I. for a further period of four months.

On a complaint petition filed by P.W. 5, Nalu Sahu, the Petitioner and two others were jointly charged u/s 467 read with Section 109, Indian Penal Code. The allegations were that the complainant had a brother named Kanduri Sahu who died issueless leaving behind him his widow Bengamani Bewa. Both the brothers were recorded as joint owners in respect of 1.16 acres of land appertaining to khata No. 65 in village Berhampore under Basta P.S. in the district of Balasore. Bengamani Bewa, the widow of Kanduri, died on 21.6-1908. On 27-3-1970 the Petitioner obtained a sale-deed (vide Ext. 3) purported to have been executed by the said Bengamani Bewa in respect of 0.58 acre appertaining to the said khata No. 65 and got his name mutated in the office of the Tahasildar. Basta in Mutation Case No. 1865 of 1970 (vide Exts 4). On 24-5-1971 the Petitioner obstructed the complainant from ploughing the land claiming to have purchased the same from Bengamani Bewa. On enquiry, the complainant case to know that a sale-deed had been created on 27-3-1970 which purported to have been executed by Bengamani Bewa, the widow of Bhikari Sahu, in respect of 0.58 acre of land in his possession. He filed the complaint petition after obtaining a certified copy of the sale-deed. His contention was that the Petitioner with the help of the two other accused persons (since acquitted) created the sale-deed with a view to grab the properties.

The Petitioner admitted before the trial Court that Bengamani Bewa, the widow of late Kanduri Sahu, died on 21-6-1965. He, however, contended that Bhikari Sahu had two wives, viz. Benga and Bengamani. After his death Benga, the first wife lived with the complainant and Bengamani, the second wife went to her father''s house and that the latter executed the sale-deed in his favour on receipt of consideration.

At the trial, the learned Asst. Sessions Judge came to the finding that Kanduri Sahu had only one wife and she was Bengamani who died on 21-6-1968. He further found that the Petitioner had taken active part in the preparation of the forged sale-deed. On these findings he held the Petitioner guilty but acquitted the other two accused persons who were alleged to be attesting witnesses to the sale-deed.

On appeal, the conviction and sentence were maintained by the learned Addl. Sessions Judge. It is urged in this criminal revision that in the absence of any evidence to show that the Petitioner took any part in the transaction of sale, the order of conviction is not sustainable.

It is not disputed that the sale-deed, the certified copy of which has been marked as Ext. 3, was a false document. Admittedly, Bengamani, the widow of late Kanduri Sahu, died on 21-6-1968 and the sale-deed is purported to have been executed in her name (10 27-3-1970. There is no direct evidence to show that the Petitioner was present at the time of execution and was responsible for the false document. But the circumstantial evidence is such that the only conclusion possible IS that the Petitioner took active part in creation the document. Upon the evidence, the following circumstances appear to have been well established against the Petitioner. First, the Petitioner made statements before the committal Court and the Sessions Court that he had paid consideration for the sale-deed, but contended that the sale-deed was executed by Bengamani, the second wife of Kanduri Sahu, and that it was genuine. This plea has been found to be false. Secondly, he got his name mutated (vide Ext. 4) on the -strength of the sale-deed. If the Petitioner''s conduct was bona fide, be would not have used the forged document as genuine in the Mutation case. Thirdly, he asserted a false claim to the land mentioned in the sale-deed and obstructed P.W. 5. Nalu Sahu, from ploughing the same. This shows his guilty conduct. Inference is irresistible that he caused the sale-dead to be made in his favour with intent to deprive P.W. 5 of his lawful title to the land. Fourthly, he was the only person to be benefited by the sale-deed. Once it is established that the sale-deed is a forgery and it is further established that the only person to be benefited from the forgery is the Petitioner himself, it is impossible to hold that the forgery was committed without his instigation. It is not his defence that somebody else got the document executed without his knowledge. Fifthly, the Petitioner is a resident of the village to which Bengamani, the widow of Kanduri Sahu, belonged and as such he must have known that she was dead long before the date of execution of the sale-deed. One would naturally expect that he would revolt against execution of such a false document when it came to his notice. On the contrary, he used it as genuine in the mutation case. The sale-deed appears to have been created with a view to make it appear that It was executed by Bengamani whom, the Petitioner knew, did not execute it.

The circumstances proved in the case serve as an unerring pointer at the guilt of the Petitioner. It is difficult to hold that the Petitioner who was the only person to be benefited by the sale-deed and who, in fact, used it as genuine in the Mutation proceeding and asserted a false claim by obstructing P.W. 5 from enjoyment of the properties had no part to play in the commission of the forgery. It is difficult to believe that somebody else committed the forgery without his knowledge and instigation. The conviction u/s 467/102, Indian Penal Code is, therefore, unassailable. The substantive sentence of imprisonment for two years does not appear to be severe, bur the additional sentence of fine appears to be unnecessary and I set aside the same.

Subject to the above modification in the sentence, the criminal revision stands dismissed.