Criminal Appeal No. 85 of 1995 · Bombay High Court

By the aforesaid appeal the original-complainant in criminal case no. 147 of 1979 has assailed the Judgment and Order dated 5th January, 1993 passed by Second Additional Judge, Satara in Criminal Appeal no. 74 of 1988 setting aside the order of conviction recorded by Judicial Magistrate First Class, Vaduj. By the said Judgment and Order the respondent nos. 1 to 4 were convicted for commission of offences under Section 465, 467 and 471 r/w Section 34 of Indian Penal Code and on the first count each of them was sentenced to suffer SI for 2 years and to pay a fine of Rs. 1,000/- and on second count to suffer SI for 3 years and to pay fine of Rs. 1000/- and on the 3rd count to suffer SI for 2 years and to pay fine of Rs. 1,000/-. On each count each of the respondent in default of payment of fine ordered was ordered to suffer SI for one month and a amount of Rs. 1000/- was ordered to be paid to the complainant towards the compensation.

The aforesaid application is preferred by the appellant- original complainant for continuing the appeal against the respondent nos. 3,4 and 5 on the count that original accused no.2 had died during the pendancy of the appeal before the Appellate Court and his son Suresh had continued the appeal with the permission of the court and that respondent no.1 having died during the pendancy of this appeal.

The prayer made in the application being not objected by the learned counsel for the original respondent nos.1 to 4 there is no hindrance to allow the same.

Now reverting to the appeal, the facts in brief relating to the said case are as under :-

4.1 The complainant is the grandson of one Maruti Godse. The said Maruti Godse has executed the first Will on 30 th November, 1970. The said Maruti Godse passed away on 20 th January, 1976. After his demise respondent no.1, son of another daughter of the said deceased claimed that the deceased has executed 2nd Will on 18th December, 1975. The complainant claimed that the same was forged Will allegedly prepared by respondent no. 1 and 2 in furtherance of their common intention and respondent nos. 3 and 4 had helped in execution of the said will. It will not be out of place to state that in the original complaint such a role was not ascribed to respondent nos. 3 and 4 and the same was later on added by amending the complaint by making an application before the trial court. Thus in short all the four respondents were facing a charge for commission of offences punishable under Section 465, 467, 471, 420 r/w Section 34 of Indian Penal Code. At the trial the complainant had examined three more witnesses viz. PW.2 Uttam Tukaram Nikam, PW.3 Tukaram Maruti Godse and PW.4 Shrirang Shankar More and himself in support of his case. The trial court after appreciating the evidence surfaced at the trial in light of the submissions canvassed has though acquitted all the respondents from the charge of commission of offence under Section 420, convicted and sentenced them for commission of remaining offences for which they were charged with. However, the said order of the conviction and sentence was set aside by the Appellate court as narrated earlier the complainant has approached this court and after obtaining the necessary leave his appeal assailing the said order of acquittal passed by the trial court was admitted.

Ms. Pooja Patil, learned counsel for the appellant urged that the prosecution being germen from the act of an forgery and direct evidence of forgery being seldomly available as such the commission of an forgery will be required to be inferred from the circumstances established by the complainant. She urged that the Appellate court failed to appreciate the evidence of the witnesses and the evidence of the complainant in proper perspective, inspite of the same leading to the inference of the guilt of the respondents in commission of offences for which they were convicted by the trial court. She urged that reference to the 2nd Will in question of year 1975 reveals that the testator Maruti had bequeathed all his property in favour of respondent no.1 on the ground that the appellant had left the house and respondent no.1 and his wife were looking after him. She urged that it was the case of the complainant that he was brought up by his grand father in his house at Vaduj and had also supported and incurred expenditure on his education. The appellant had passed in the SSC examination in the year 1974 from Vaduj. Thereafter for two years he was not only residing at Vaduj but was also pursuing pre-degree level education at Yashwantrao Chavan College which was about 5 miles away from Vaduj. It was urged that merely because he has taken admission in the college at such a place away from Vaduj the same is not suggestive of himself not residing with the testator. It was urged that it was not uncommon for young men and women from village to daily travel to Taluka or District or any other place for the purposes of higher education. She further urged that hence it will be fallacious to accept that he has left the house as stated in the will in 1975. It was urged that respondent no.1 being elder to the appellant even at the time of Will executed in the year 1970 he was looking after family properties as the appellant was studying. It was urged that the same situation prevailed in the year 1975 i.e. the appellant pursuing his studies, it is difficult to accept the recital that in the year 1975 the appellant had left the house of the testator, he was excluded him from the benefits of the estate.

Learned Counsel further urged that at the time of Will executed in the year 1970, Sub Registrar was required to be called home and the same fully supports the case of the appellant that he was old and was unable to move. It was urged that hence it will be difficult to accept that in the year 1975 testator was not in a position to move. It is further contended that the death of testator having occurred one month later after the execution of purported 2nd will by him itself speaks in volume of testator in December, 1975 counting his last days.

Learned Counsel during the submissions made an attempt to make the submissions regarding conclusions drawn by the finger print expert. However, the same was rightly objected by the learned counsel for the respondent nos. 1 to 4 by pointing out that the said evidence cannot be taken into consideration in view of handwriting expert being not examined at the trial nor his report being taken on record. Learned Counsel further contended that from the evidence of an prosecution witnesses nos. 1, 2, 3 and 4, the following propositions are proved :- (i) (ii) Appellant had not left Vaduj during 1974-76 period. There was no reasonable circumstance to exclude the Appellant from inheritance. (iii) Maruti Baba Godse was old and counting his last day in

1975. He was in poor health and unfit to revoke the earlier Will or to prepare a new Will (He was aged 102 years at the time of his death as seen in the death extract)

Learned Counsel for the appellant thereafter took through the Judgment given by the Appellate court criticizing the same as being against the weight of evidence on the record and being based upon unwarranted inference or upon the surmises. It was urged that since the same fails to give cogent reasons for setting aside finding of fact arrived by the trial court, the same is not legally sustainable. It was urged that considering the evidence adduced at the trial since the same leads to the conclusion of an guilt of respondent no.1 to 4, the appeal be allowed and respondent nos. 3 and 4 be convicted and sentenced in accordance with law for the offences committed by them.

The aforesaid submissions were countered by the learned counsel for the respondent nos. 1 to 4. Learned Counsel urged that in order to establish the 2nd will being forged document it was absolutely necessary for the appellant to establish that thumb impression appearing upon the same was not of the testator. It was urged that evidence to such a effect could have been easily adduced by obtaining the opinion of a finger print expert. Learned Counsel further rightly contended that in the instant case it is not the case of non-adducing of such an evidence but on the contrary inspite of the evidence of an handwriting expert being collected in an enquiry made under the provisions of Section 202 of Cr.P.C neither the report of handwriting is tendered on record nor opinion of finger print expert has been taken and his evidence is adduced. Learned Counsel thereafter by taking through the evidence of the complainant urged that his evidence is not at all useful to lead to the inference of commission of forgery or the preparation of an forged Will as it is not his case that in his presence such a forged will was prepared.