Jwala Prasad, J.The petitioner Basgit Singh has been convicted u/s 82(c), Indian Registration Act, the charge being that on or about the 29th September 1902 at Koilwar Registration Office he falsely personated one Sidhu Mahto and in such assumed character presented a document, namely a mortgage deed, dated 20th September 1902, for Rs. 400, purporting to have been executed by Sidhu Mahto and others in favour of Chamru Singh, for registration.

2. Chamru Singh is father of the petitioner Basgit Singh. Sidhu is son of Tengar Mahto. He had two brothers Ramnandan and Subedar. Tengar Mahto had executed four documents in favour of Chamru Singh: (1) a usufructuary mortgage-deed for Rs. 500, dated the 27th May 1897, (2) a mortgage-deed for Rs. 95, (Ex. 13), dated 5th August 1899, (3) a mortgage bond for Rs. 141, (Ex. 14), dated the 3rd September 1899 and (5) a simple mortgage-deed for Rs. 197-13-6. All the aforesaid bonds are rehan deeds except the last one which is a simple mortgage. After the death of Tengar Mahto on 9th November 1901, his sons Sidhu Mahto, Ramnandan Mahto and Subedar Mahto executed another mortgage bond for Rs. 300 (Ex. 15) in favour of the petitioners father Chamru Singh, on 27th October 1903, Sidhu Mahto and Ramnandan Mahto executed a sale-deed (Ex. 17) for Rs. 1,000, in favour of Chamru Singh. The case of the prosecution is that the three mortgage bonds were satisfied; (1) of Rs. 500, (2) of Rs. 197-13-6 add (3) of Rs. 300. In 1921 Sidhu Mahto and Ramnandan Mahto executed another sale deed (Ex. 1) in favour of one Akbar Ali for Rs. 1,500.

3. By the consideration of the sale Akbar Ali was to pay off the two mortgage bonds of Rs. 95, and Rs. 141, respectively. Akbar Ali accordingly tendered to petitioner Basgit Singh and his brother Basawan Singh the said sum of Rs. 236, towards the satisfaction of the aforesaid bonds. They refused to accept the payment, contending that they had another mortgage bond of Rs. 300, dated the 9th November 1901 (Ex. 1.5), which remained unsatisfied. Akbar Ali instituted a civil suit for redemption and recovery of possession. In the civil suit the sale-deed (Ex. 17), dated the 29th October 1903, which was executed by Tengar Mahto in favour of Chamru Singh was produced, It showed that two bonds were mentioned therein to be satisfied out of the consideration money, namely, the rehan bond of Rs. 500, dated The 27th May 1897, and the bond, dated the 20th September 1902, for Rs. 400. There was no mention in the sale-deed of the mortgage-deeds of Rs. 197 odd and Rs. 300. The contention of Akbar Ali, the plaintiff in that case, and of Sidhu Mahto and Ramnandan Mahto the alleged executants of the bond of 20th September 1902 was that that bond was a forgery and that Sidhu and Ramnandan never executed it. The Munsif held that it was not a forgery and did not allow redemption to the plaintiff unless he had paid the bond of Rs. 300, which remained unsatisfied. On appeal the Subordinate Judge held that the bond set up was a forged one and that Sidha and Ramnandan never executed it. This view was taken upon a consideration of the evidence of an expert on fingerprints. The Subordinate Judge referred the matter to the Criminal Investigation Department for inquiry with the result that Ramlagan Chamar, a servant of the petitioner, was convicted for having given a thumb impression for Ramnandan Mahto. Upon further inquiry the present petitioner was put upon his trial along with one Daroga Singh who is supposed to have identified the executants Sidhu Mahto and Ramnandan Mahto before the Sub-Registrar of Koilwar. Daroga Singh has been acquitted, and petitioner Basgit Singh has been convicted as aforesaid.

4. The Courts below have hold that the petitioner put his thumb impression in a register of thumb impressions of executants kept under Rule 53 framed under the Registration Act. The form for this register is No. 8, and provides for the following columns:

(1) Impression of left thumb or other digit, (2) Name and signature of executant, (3) Date of impression, (4) book number and document under, and (5) serial number of impression.

5. In column (2) of this register it is stated: sabi Sidhu Mahto bakalam Daroga Singh as being the executant of document No. 924 copied in book No. 1. In column (1) of this register is the thumb impression supposed to be of the executant Sidhu Mahto mentioned in column (2) The clerk Deoki Lal, who has been examined in this case on behalf of the prosecution, has written the name of Sidhu Mahto in column (2) indicating that this was the name given to him by the person who is said to have executed the document in question and affixed his thumb-impression in column (1). The date of taking the thumb-impression as mentioned in column (3) is 29th September 1902. The entries in question in the register referred to above are, therefore, in respect of the document in question. The original document is not produced, and we do not know where it is. A copy of that document was made in the register of documents provided for by the Registration Act and that register has been produced before as. It shows that the document in question was presented before the Sub-Registrar on 29th September 1902, at the Koilwar Sub-Registry Office by Sidhu Mahto who is said to have signed the endorsement of presentation by the pen of Daroga Singh. The Courts below have found that the thumb impression in column (1) of the register of thumb-impressions referred to above is that of the petitioner before us. This finding is based upon the evidence of an expert on fingerprints who arrived at his conclusion by comparing the thumb-impression in question in the register with the thumb impressions Exs.2, 3, 4, 5, and 6. There is direct evidence given with respect to the thumb-impression (Ex. 3) as being that of the petitioner Basgit Singh. That was a thumb-impression given by him upon a registered bond of 1906. Witness Badruduza says that the thumb-impression was given by accused Basgit Singh in his presence upon that document. The thumb-impressions (Exs. 4, 5 and 6) also appear to be of Basgit Singh, though there is no direct evidence of his having given those thumb-impressions.

6. Sir Ali Imam, on behalf of the petitioner, contends that the evidence of the expert is insufficient to prove the identity of the petitioner with the man who gave the thumb-impression in column (1) of the register, and he has referred to the decision in the case of Bazari Hajam and Another Vs. Emperor, . It that case the accused was convicted u/s 82(c) and (d) of the Registration Act. The charge against him was that a document registered by the Sub-Registrar of Koilwar was not in fact executed by Ram Prasad but was executed by the accused Bazari Hajjam who represented the alleged executant Ram Prasad who placed his thumb-impression upon the document.

7. In that case the thumb-impression of the accused was taken in the Magistrates Court as well as in the Court of Sessions by a fingerprint expert who upon a comparison of those thumb-impressions with the one on the document in question found that the three thumb-impressions were identical. The conviction of the accused was based upon the evidence of the expert. Their Lordships (Das and Bucknill, JJ.) deprecated the practice of obtaining thumb-impression of an accused person in the manner set forth and held that it was improper to convict an accused person on the sole testimony of a fingerprint expert.

Recently in the case of the King-Emperor Vs. kiran Bala Dasi, (Ghose and Duval, JJ.) referred to Section 5, Act 33, 1920 and to Section 45, Evidence Act, and held that the taking of a thumb-impression of an accused person in the manner that was done in the present case was permitted by Section 5, Act 33, 1920 and that the opinion of the expert formed by a comparison of such thumb-impressions is admissible in evidence. Their Lordships observed;

It would, therefore, follow that the procedure which was adopted by the Magistrate was one in strict accordance with the provisions of the law and that the learned Sessions Judge was not correct in saying that the thumb-impression of Kiran Bala Dassi which had been taken in Court was one which had been taken illegally and against a fundamental principle of law. That being so, it is impossible to resist the conviction that the thumb-impression which had been put on the deed at the time of the registration of the document was one which had been put not by Sindhu Bala Dassi but by Kiran Bala Dassi; in other words, we are satisfied on the evidence that it was Kiran Bala Dassi who had personated Sindhu Bala Dasai at the time of the registration of the document.

8. With this observation their Lordships convicted the accused in that case.

Similar was the view taken in the case of Emperor v. Virammal AIR 1923 Mad. 178 . In that case the decision by this Court in the case of Bazari Hajam and Another Vs. Emperor, as well as of the Calcutta High Court in Emperor v. Abdul Hamid [1905] 32 Cal. 759 were considered. In that case reported in Emperor v. Virammal AIR 1923 Mad. 178 , their Lordships observed that a Court cannot refuse to convict a person on the evidence of a fingerprint expert, merely on the ground that it is unsafe to base a conviction upon such evidence. If the fingerprints are clear enough, the Court must verify the evidence of the expert by examining them with a magnifying glass if necessary, and applying its own mind to the similarities and dissimilarities afforded by the fingerprints, before coming to a conclusion one way or the other. In that case the fingerprints or the thumb-impressions were, in the light of the aforesaid remarks, examined by their Lordships and they differed from the opinion of the expert and did not consider it safe to convict the accused.

It seems to me that it is not now open to contend that it is wrong on the part of the Court to take fingerprints of the accused in its presence and to have them compared by an expert with the disputed fingerprints. The question has been solved by Legislation (Act 32 of 1920).

9. As to the probative value of the opinion of an expert on fingerprints, it must have the same value as the opinion of any other expert, such as a medical officer, etc. In each case the evidence is only a guide to the Court to direct its attention to judge of its value. The Court is ab liberty to use its own discretion and to come to a conclusion either in affirmance or differing from the view taken by the expert. In this view it may be said, as has been held repeatedly in a number of cases, that it is not safe to convict an accused upon the sole testimony of an expert. The danger of such a conviction has also been indicated in the decision of the Madras High Court referred to above. Each case, however, must depend on its own circumstances.

10. The question, therefore, at issue in the present case is whether there is sufficient evidence direct or circumstantial to enable us to say with reasonable certainty that Basgit Singh, accused, is The person who put his thumb-impression in Col. (1) of The register in question.

11. I have considered the case very carefully and in the circumstances of the present case I do not think that we can reject the evidence of the expert. The circumstances afford ample corroboration of the experts opinion. Sidhu and Ramnandan have not been shown to have borne any grudge or enmity against the petitioner before us. All that we know is that the family of the accused and of Sidhu Mahto were on amicable terms and they had monetary transactions between them, The accuseds father and after him he himself seemed to be always ready to help Sidhu and his family in times of pecuniary needs. No less than five mortgage bonds were executed by Tengar Mahto, father of Sidhu Mahto and Ramnandan Mahto, in favour of Chamru Singh. They executed sale-deeds: one in favour of Chamru in 1903 and another in favour of Akbar Ali in 1921 in order to pay off the debts covered by the mortgage bonds. There is nothing to indicate why having admitted five of the bonds they would refuse payment of the bond in question, dated 20th September 1902, and deny the execution thereof altogether. On the other hand, accused Basgit and, his brother Basawan might have apprehended that the land which was in their possession under a usufructuary mortgage from 1897 might slip out of their hands. There might thus be pecuniary object in their minds in forging the document in question in order to augment the liability of Sidhu and Ramnandan and thus to prevent redemption of the lands in their possession.

12. Thus, whereas on one side, that is, on the side of the accused, we find a motive for fabricating the bond in question; on the side of Sidhu and Ramnandan there is absence of any motive for denying the bond if it were genuine. It is but natural that the persons in whose favour the document in question was executed would be the persons in the Koilwar registry office, particularly when Sidhu and Ramnandan, the executants of the bond were not there, and that fraud and forgery in their names had to be committed in order to pass successfully through the registration of this document. Therefore, Basgit Singh and Basawan Singh who were the beneficiaries under the bond in question would naturally be the persons in the registry office and without their participation it was not possible to consummate the forgery of the document. One of them, therefore, either Basgit Singh or Basawan Singh, must have presented the document in question and also put the thumb-impression in Col. (1) of the register. The question is, which of them did so The thumb-impression has been proved to be not similar to the thumb-impression of Sidhu Mahto. The opinion of the expert is that it is similar to the thumb-impression of Basgit.

13. The case of the accused is that the bond in question was satisfied by means of the consideration of the kabala (Ex. 17), dated 27th October 1903. Along with it the bond of Rs. 500, dated 27th May 1897, must also have been satisfied and, in fact, it is the case of both sides that it was satisfied. That bond is not produced. The complainant would have produced it if he bad been in possession of it. As it was a usufructuary mortgage and as the consideration was paid out of it, it seems that this bond must be in the possession of the accused in order to keep his lien alive. It may have contained endorsement of payment or a mark of payment by tearing it off; but the document returned and paid off out of the consideration money remains in the hands of the creditor who pays the money as a proof of such payment. The document for Rs. 197-13-6 has also not been produced.

14. Therefore, the case of the prosecution that the document in question was with the accused and that he has withheld its production in order to prevent the detection of the forgery must be held to be true.

15. I, therefore, in concurrence with the view of the Courts below hold that the thumb-impression in Col. (1) of the register is that of the petitioner. This proves that he gave the thumb-impression in that register calling himself Sidhu Mahto as witness Deoki Lal says who wrote it in Col. (2). Whether he presented the document or not, I am not sure that the evidence necessarily connects him with it. It is highly probable that he did so, but the presentation of a document is an incident quite apart from putting a thumb-impression of the executant in Col. (1) of the register. The two take place at different places though in near proximity. A number of persons were present who were interested in the passing through of the document in question and Daroga Singh is said to have signed for Sidhu Mahto in Col. (2). There is, to my mind, a link missing which would necessarily connect the petitioner with the presenter of the document.

16. The charge in the present case is that the petitioner personated Sidhu Mahto and in that assumed character he presented the document in question for registration. That charge to my mind is not proved inasmuch as the evidence is not conclusive as to his having presented it.

17. This brings us to the consideration whether the petitioner committed any offence u/s 82, Clause (c), Registration Act, by having personated Sidhu Mahto before the clerk Daoki Lal and putting his own thumb-impression for Sidhu Mahto in Col. (1) of the register. The learned Assistant Government Advocate contends that this would bring him under the latter provision of the section which runs as follows:

falsely personates another, and in such assumed character presents any document, or makes any... statement... or does any other act in any proceeding or enquiry under this Act.

18. I have quoted only as many words of the section as are necessary for the purpose of this contention. Sir Ali Imam also agrees with this contention. It seems, therefore, that the registration of a document is a proceeding under the Act and the giving of a thumb-impression under Rule 53 in the case of illiterate person forms an act in a proceeding under the Act. Therefore, that fact alone, namely, the putting of the thumb-impression by the accused in Col. (1) in order to facilitate registration of the document will be an offence committed u/s 82, Clause (c) of the Act.

19. The question then is whether the accused will be prejudiced by his conviction for it instead of for presenting the document in an assumed character as is set forth in the charge. The whole case of the prosecution from the beginning is based upon the putting of the thumb-impression in Col. (1) of the register and the accused had, therefore, full notice of the charge against him and the evidence that was given in support of that charge. Therefore the accused will not in any way be prejudiced by his conviction under the latter portion of Clause (c), Section 82, Registration Act.

20. I would, therefore, uphold the conviction of the petitioner and reduce the sentence to six months rigorous imprisonment.

The Court would like to place on record its appreciation of the work done by the Criminal Investigation Department in detecting the offence.

Macpherson, J.

21. I agree to the order proposed. No point of law arises. It is also not shown that the findings, on the facts, of the appellate Court are wrong. Indeed the examination of the facts before us has served to show that the conclusions thereon of The learned Sessions Judge are entirely correct. I should myself have had no serious difficulty in holding that it is a legitimate inference from the facts proved in the case that the petitioner presented the mortgage-deed in question for registration. But in all the circumstances I am not prepared to say that the order proposed does not adequately meet the case.