1. The two appellants, Sheo Nandan and Babu Nandan, were committed for trial on charges alleging against both of them, the commission of offences punishable under Sections 380 and 201, Indian Penal Code. The charges were amended by the Sessions Judge, although under the circumstances, it does not seem to me that there is any clear reason why he should not have been content to proceed with the charges as originally framed, unless indeed, as I shall have occasion to remark presently, he was prepared to add a further charge against Sheo Nandan alone. However, in the result both the accused were convicted on the charge under Section 380, Indian Penal Code and sentenced to rigorous imprisonment for three years each. Babu Nandan alone was convicted on the charge under Section 201, Indian Penal Code, and sentenced to a further period of rigorous imprisonment for three years. The essential facts put forward by the prosecution in this case, may be stated thus. There was in the Court of the Subordinate Judge of Monghyr the record of a certain suit filed on the basis of a promissory note. That promissory note was forged and the accused Sheo Nandan, who instituted the said suit, had been guilty in so doing of an offence punishable under Section 471, Indian Penal Code, namely, using as genuine a document which he knew to be a forged document, and possibly also of the substantive offence of forging the said document, punishable under Section 467, Indian Penal Code, inasmuch as the promissory note in question purported to be a valuable security. Under circumstances which need not be set forth in detail, the record in question was sent from the Court of the Subordinate Judge of Monghyr to Jaunpur, where it was eventually placed in the custody of the Additional Munsif of Jaunpur being required as an Exhibit in connection with a suit pending in that Court. On the 3rd of May 1915 the "Tile received from Monghyr Court, some how found its way to a certain house in the city of Jaunpur which was jointly inhabited by two officials belonging to the Court of the Additional Munsif, namely, Babu Lal, suits clerk, and Sheo Dyal, decree-writer. The accused Sheo Nandan and Babu Nandan are alleged to have gone to the said house, to have obtained access to the Monghyr file and to have removed from it two papers, namely, the forged promissory note and the list of documents along with which the pro-note had been filed in the Monghyr Court. They ran away from the house with these two papers in their possession. Being pursued, they endeavoured to destroy the same by tearing them. They were, however, captured, and the two papers were recovered. In the Sessions Court, the case was tried at length on the facts, the accused persons denying practically all the allegations against them and producing evidence in support of an alibi. The only admission of any consequence made by either or the accused, was that Sheo Nandan did finally admit the promissory note before the Court to be the one which he had produced in the Court of the Subordinate Judge at Monghyr in support of the claim made by him in that Court. On the evidence before him, the Sessions Judge came to the conclusion that both the accused had been guilty of theft of these two papers and had committed this offence in a building used as a human dwelling, namely, the house occupied by the witnesses Babu Lal and Sheo Dyal. He held on the strength of various reported decisions of this Court that Sheo Nandan, being proved by the evidence to have committed the offence of forgery or of using as genuine a forged document in connection with which the charge under Section 201, Indian Penal Code, was framed, could not himself be tried or convicted of causing evidence to disappear under the provisions of the latter section. He held this offence to be proved against Babu Nandan, convicted him on the charge under Section 201, Indian Penal Code, and sentenced him to a further period of rigorous imprisonment for 3 years. In support of the appeal filed in this Court, I have not been asked to examine in full detail the evidence with regard to most of the questions of fact which were contested in the Court below. I accept the finding of the learned Sessions Judge that the alibi evidence produced by the accused in his Court is unworthy of credit. I hold it to be proved by overwhelming evidence that, on the date set forth in the charge, the accused Sheo Nandan and Babu Nandan were seen running away from the house already referred to with the witnesses Babu Lal and Sheo Dyal in pursuit of them. They were captured and the two papers set forth in the charge, namely, the forged promissory note and the list of documents were recovered from the possession of one or other of them. With reference to the charge under Section 201, Indian Penal Code, I have further examined the evidence on the strength of which the learned Sessions Judge has come to the conclusion that the offence of forgery, and, therefore, also the offence of using as genuine a forged document, had been committed in respect of the promissory note in question, and I concur in the finding arrived at by the Court below on this point. It remains for me, however, to consider a number of arguments which have been addressed to me with regard to the propriety of the convictions affirmed by the Court below, and with a view mainly to obtaining a substantial reduction of sentence by reducing the offence of which the appellants have been convicted either to one of simple theft under Section 379, Indian Penal Code, or possibly to one of simple mischief under Section 426, Indian Penal Code. In this connection it has been necessary to examine with care the evidence given by the witnesses Babu Lal and Sheo Dyal. These men were in a difficult position, undoubtedly the record in question, namely, the file of the suit received from the Monghyr Court ought not to have been in the place where it was at the time referred to in the charge. Neither Babu Lal nor Sheo Dyal had any business to remove that record from the safe custody of the Court of the Additional Munsif, and one or the other of them was guilty of misconduct and liable to departmental punishment for having so removed it. It is not to be wondered at under the circumstances that each of these men endeavoured in his evidence to throw the blame upon the other, and that the statements of neither of them as to the precise circumstances under which that record came to be at their house, or I may add, to the precise circumstances under which the accused Sheo Nandan and Babu Nandan put in their appearance, can be accepted as reliable. After allowing all due weight to these considerations, I am nevertheless fully satisfied that the offence of theft in respect of the3e two papers was committed by the appellants Sheo Nandan and Babu Nandan acting in concert, and was so committed that it is not material for the Court, in view of the provisions of Section 34, Indian Penal Code, to determine with certainty which of the accused actually removed either or both of the documents. There is clear and satisfactory evidence, apart from the statements of Babu Lal and Sheo Dyal, that the two accused ran out of the house with the aforesaid witnesses in pursuit, that they were captured at no great distance of the said house and that the two papers which formed the subject-matter of the theft, were recovered from the possession of one or either of them in a damaged condition. I, therefore, regard the evidence as proving that the papers in question had been taken from the possession of Babu Lal, or of Sheo Dyal, or of both of them, without the consent of either of them; and taking the circumstances of the case as a whole, I have no doubt that they had been taken dishonestly. With regard to the applicability of Section 380, Indian Penal Code, rather than Section 379, Indian Penal Code, it does not appear to me that the cross-examination of the prosecution witnesses in the Court below was very specifically directed to the point which has been made before me in argument. So far as the evidence goes, it seems to me to show that the theft took place in a verandah of the house situated on the inner side of the main door, and obviously forming part of a building used as a human dwelling within the meaning of Section 380, Indian Penal Code. A further question has been raised as to whether theft of property from the person of the complainant would be liable to enhanced punishment provided by Section 380, Indian Penal Code, merely because the complainant in question happened at the time to be in some building. As a matter of fact, in the great majority of cases, such a question would be otiose, because if a Court felt any doubt about applying Section 380, Indian Penal Code, it could feel no hesitation in convicting under Section 451, Indian Penal Code. In the particular case now before me, I am content to say that, although the evidence of Babu Lal and Sheo Dyal as to the precise circumstances under which the accused succeeded in effecting the removal of these papers, is conflicting and unreliable, it is certain on the evidence as a whole that the papers were removed from the file while the file was in the verandah of the house, and cannot reasonably be said to have been removed from the person of Babu Lal or of Sheo Dyal. I am satisfied, therefore, that the conviction under Section 380, Indian Penal Code, was right and proper. With regard to the conviction of Babu Nandan under Section 201, Indian Penal Code, a number of questions have been raised. I think the Court below in trying this charge was bound to come to a finding as to whether an offence under Section 467 or Section 471, Indian Penal Code, had or had not been committed. As already stated, I concur in the finding which the learned Sessions Judge has arrived at on this point. It is, however, clear to me that no offence punishable under Section 201, Indian Penal Code, was actually completed. The evidence, the disappearance of which it was desired to cause, consisted of the two papers in respect of which the accused have been convicted of theft, and then the papers cannot be said to have disappeared within the meaning of Section 201, Indian Penal Code. They were recovered in a damaged condition, but for evidential purposes, so far as concerns the alleged offences under Sections 467 and 471, Indian Penal Code, they are complete and fully available for the purposes of justice.
2. I should not be prepared to say that in this case, there had been even a temporary disappearance, setting aside the further question of law whether a temporary disappearance would be sufficient to fulfil the requirements of the section. Babu Nandan, therefore, can only be convicted on this part of the case of having attempted to cause the disappearance of these papers, that is to say, of an offence punishable under Sections 201/511, Indian Penal Code, and I am satisfied that the maximum punishment which could be inflicted upon him under these sections, would be one of rigorous imprisonment for a period of one and a half years. The question whether Sheo Nandan could or should at this trial have been further charged with offences under Sections 471 or 467, Indian Penal Code, and of the legal effect of his not having been so charged or convicted, does not now arise; but I am satisfied that there had been misjoinder of persons or charges in the Court below so far as the trial actually went. The position is perhaps a little awkward, in view of the fact that Sheo Nandan could not be convicted of any offence under Section 201, Indian Penal Code, while he was undoubtedly guilty of the offence under Section 380, Indian Penal Code, jointly committed by himself and Babu Nandan in the course of the same transaction. At any rate there was nothing illegal about the joint trial as held. I shall have to interfere with the conviction and sentence in the case of Babu Nandan for the reasons already stated; and taking all the circumstances of the case into consideration, I am not prepared to say that a severer punishment than rigorous imprisonment for a total period of three years seems to be required against this man in the interests of justice. The result is that I dismiss the appeal of Sheo Nandan. In the case of Babu Nandan, I affirm the conviction and sentence under Section 380, Indian Penal Code. On the other charge I direct that the conviction be altered to one under Sections 201/511, Indian Penal Code, and the sentence reduced to one of rigorous imprisonment for one year, and I further direct that this latter sentence shall run concurrently with the sentence of three years' rigorous imprisonment passed on the conviction under Section 380, Indian Penal Code.