JUDGMENT R.N. SAHAY, J 1. The petitioner Chamari Mahto was tried before Subdivisional Judicial Magistrate Giridih in complaint Case No.356/75 for offence punishable under section 467 & 474 of the Indian Penal Code. He was found guilty by the trial court and his appeal was dismissed by the Addl. Sessions Judge, Giridih. He preferred Cr. Revision before this court namely, Cr. Revision No.353/79 (R). This Court vide order dated 8th January 1986 remitted the case to the appellate court to decide the appeal afresh and give specific finding on certain points and also consider the evidence of the defence witnesses. The petitioner preferred special leave petition before Hon’ble Supreme Court against the order of remand but later withdraw the petition. The appellate court reheard the appeal and dismissed the criminal appeal preferred by petitioner. The petitioner has moved this Court for revision or the order of Addl. Sessions Judge affirming judgment of the trial court. 2. The petitioner has been acquitted of the charge under Section 467 of the Indian Penal Code but he has been convicted under Section 474 of the Indian Penal Code and has been sentenced to undergo two years R.I and a fine of Rs.200/- and in default further imprisonment for one month. The petitioner was tried on the basic of complaint filed by Reshmi Kumari who alleged that the petitioner was in possession of a sale deed alleged to have executed be Baija Mahto described as son of Kanhai Mahto the cousin brother of Nandu Mahto, the further of the complainant. Reshmi Kumari had got disputed property by way of gift after the death of Kanhai. According to the information of the complainant Kanhai had died issueless and that being so sale deed in possession of the petitioner was a fabriosted document. The Trial Magistrate has held the petitioner guilty on the strength of the evidence of complaint, Reshmi Kumari, PW 9 and other material witnesses. Her evidence is that Kanhai Mahto had died issueless and hence the person who had executed sale deed in favour of the petitioner was fictions man. According to the trial Magistrate other witnesses have supported the evidence of the complaint. However, this is not a fact as these witnesses have only stated that they had no knowledge whether Kanhai Mahto had any issue or not there is no positive evidence to corroborate the testimony of the complaint. The Addl. According to the trial Magistrate other witnesses have supported the evidence of the complaint. However, this is not a fact as these witnesses have only stated that they had no knowledge whether Kanhai Mahto had any issue or not there is no positive evidence to corroborate the testimony of the complaint. The Addl. Sessions Judge, Giridih on appeal affirmed the finding of the trial court. The Addl. Sessions Judge in Para 7 of the judgment has discussed the evidence on which he has relied. According to the appellate court the evidence of complainant itself was sufficient to bring home charge without any corroboration. The view of the Addl. Sessions Judge, in my opinion, is absolutely erroneous. In such cases unless there is cogent evidence to corroborate the evidence of interested witnesses it would not be sale to base this conviction. The Addl. Sessions Judge says: – "P.Ws 1, 2, 3, 5 & 6 have also supported the case of the complainant on the point that Kanhai and Nandu were cousin and Kanhai died issueless long ago leaving behind non expect his cousin Nandu. These witnesses belong to the same village to which the complainant belongs. They have clearly stated that there was no man named Baija Mahto in village Dhodhi. P.W.3 Rupa Mahto has been the Mukhia of the said village and he can be expected to know each and every man of the village. Hence, in that view of the matter also his evidence that there was man like, Baija in his village appears to be convincing. In the cross-examination of he witnesses excepting some minor discrepancies, which do not materially effect the case on this point. I find nothing to disbelieve their evidence. Learned lawyer for the appellant has very vehemently argued that complainant P.W. 9 has admitted in the last para of his cross-examination that Dhanu (P.W.1) Hulash (P.W.2) Rupa (P.W.3) are Panit (P.W.5) are her brothers in relation and hence, no reliance can be placed on their evidence as they are interested persons. No doubt, the complainant (P.W.9) has stated like that in her cross-examination but in this connection. I have to say that they are not her own brothers as from the deed of gift itself it is clear that Nandu died leaving behind only the complainant who is his daughter. No doubt, the complainant (P.W.9) has stated like that in her cross-examination but in this connection. I have to say that they are not her own brothers as from the deed of gift itself it is clear that Nandu died leaving behind only the complainant who is his daughter. Hence, if these witnesses are the brothers of he complainant by village of relating their evidence can not be brushed aside on this ground. When otherwise their evidence have found to be reliable and convincing. I find that the learned lower court has very elaborately dismissed the evidence of all those P.Ws. on this point and has correctly relied on their evidence on the point that Baija was not the son of Kanhai and he was not in existence. " The learned Sessions Judge went further and considered the voter list (Ext.5) of village Dhodhi of the year 1966 and held that since he did not contain the name of Baija Mahto, this supported the case of the complainant. 3. The petitioner had also examined two witnesses, who have stated that Baija Mahto was son of Kanhai Mahto. The defence evidence was not accepted by the trial court. 4. It was argued before the learned Addl. Sessions Judge that the sale deed (marked X for Identification) is not admissible in evidence since it had not been legally proved. I may state that the sale deed was in possession of the petitioner and was produced in court on the orders of the trial Magistrate. The Addl. Sessions Judge admitted the sale deed because it had been produced by the accused himself. The petitioner has no doubt admitted the execution of sale deed. 5. The contention of Mr. P.S. Dayal learned Sr. counsel for the petitioner is that trial Magistrate committed grave error in directing the accused to produce the document in the possession. Hence the conviction of the petitioner is vitiated on this ground above. 6. It was rightly contended by Mr. Dayal that the trial Magistrate committed a grave violation of the right granted by Article 20(3) of Constitution is directing the petitioner accused to produce in court the sale deed impugned as forgery. In M.P. Sharma v. Staish Chandra, District Magistrate, Delhi 1954 SC 300. 6. It was rightly contended by Mr. Dayal that the trial Magistrate committed a grave violation of the right granted by Article 20(3) of Constitution is directing the petitioner accused to produce in court the sale deed impugned as forgery. In M.P. Sharma v. Staish Chandra, District Magistrate, Delhi 1954 SC 300. It has been held that a compelled production of incriminating documents by an accused person will amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution while a search and seizure of such documents under the provision of Ss. 94 and 96 of the Code of Criminal Procedure will not offend the said constitutional inhibition. Mr. Justice Jaganadhadas who delivered the judgment of the Supreme Court in that case stated: – "The only substantial argument before us on this part of the case was that compelled production of incriminating documents from the possession of an accused is compelling an accused to be a witness against himself." "Bresdly stated the guarantee in Article 20(3) against testimonial compulsion." It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this basely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is "to be a witness." A person can "be a witness" not merely by giving oral evidence but also by producing documents of making intelligible gestures as in the case of dumb witness (See S. 119 of the evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence" and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned no doubt S. 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not guide to the connotation of the word "witness" which must be understood in its natural sense, i.e. as referring to a person who furnishes evidence. But that section is meant to regulate the right of cross-examination. It is not guide to the connotation of the word "witness" which must be understood in its natural sense, i.e. as referring to a person who furnishes evidence. Indeed every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procedure the positive volitional evidentiary acts of the persons as opposed to the negative attitude of silence of submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procedure is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness" follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. Again at p. 1096 (of SCR): (at p. 306 of AIR) the learned Judge observed: – "A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of article 20(3) as above explained." 7. The contention of Shri Dayal, however that since documents were improperly obtained in violation of the constitutional guarantee the same was liable to be ignored is not tenable. In my opinion, the test to be applied in considering whether an item of evidence is admissible is whether it is relevant to the matter in issue and not whether it has been properly obtained. In Kuruma v. The Queen, (1955) AC 197 similar argument as advanced by Mr. Dayal, which was turned down by the Lord Chief Justice of England, Lord, Goddard who held that the court was not bound to ignore evidence illegally obtained. 8. In the instant case the petitioner raised no objection and produced the document. In Kuruma v. The Queen, (1955) AC 197 similar argument as advanced by Mr. Dayal, which was turned down by the Lord Chief Justice of England, Lord, Goddard who held that the court was not bound to ignore evidence illegally obtained. 8. In the instant case the petitioner raised no objection and produced the document. Article 20(3) confers merely a privilege and it is well settled that a privilege can always be waived: it may be waived by voluntarily answering questions, or by voluntarily taking stand in the witness box, or by failure to claim the privilege. As Prof. Wignore has remarked in his "Evidence" (3rd Ed.) Vol. 8, at page 388. "The privilege is merely an option of refusal not a prohibition of enquiry." Therefore, by producing the sale deed the petitioners shall be deemed to have waived his privilege. 9. However serious question for consideration is as to whether a person can be held guilty under section 474 IPC only on the basic of evidence that he was in possession of a forged document. The ingredients of the offence under section 474 IPC are (a) that the document was a forded one (b) that the accused must be known that it was a forged document (c) that he was in possession of that document (d) that he intended that the document should be fraudulently and dishonestly used as genuine. In the instant case even if conditions (a), (b) and (c) are satisfied whether it can be said that condition (d) is also satisfied although the accused had not used the document to support his claim? 10. Mr. P.C. Roy, learned counsel for complainant, has submitted has the very fact that the he was in possession of a forged document, presupposes that he intended to use it. The only evidence is that when the complainant was cultivating the land the petitioner said that he had purchased the land by virtue of the sale deed. Intention to use he forged document must be proved otherwise charge will fail. The guilty intention must be proved. A mere suspicions not sufficient. Here the petitioner had not filed the document before any court of tried to derive any advantage on the basic the said document Shri P.C. Roy has placed reliance in the case of Dharam Pal Bhardwaj v. State (1915 Cr. Law Journal 474). The guilty intention must be proved. A mere suspicions not sufficient. Here the petitioner had not filed the document before any court of tried to derive any advantage on the basic the said document Shri P.C. Roy has placed reliance in the case of Dharam Pal Bhardwaj v. State (1915 Cr. Law Journal 474). In this decision no doubt learned Single Judge of Delhi High Court has held that "mere possession of documents, knowing them to be forged and intending the same to be fraudulently and dishonestly used as genuine is an offence" and even if the document is not actually used it would not absolve the accused from the mischief of the provisions contained in S.474 I.P.C. The observation of the learned Judge, however, must be confined to the facts of the case in which this observation was made. In the case before Delhi High Court the accused petitioner was found to be in possession of files purported to be document issued by a number of officials in which the accused had been descried as Jt. Director of Vigilance. The accused on the basic of the document used to cataract money by representing to persons that they ware it held to be arrested or serious criminal charges leveled against them in case they did not head to him. His past record was also stated to be similar and there were a number of cases filed against him of cheating forgery etc. but he did not obtain requitals at the stage of evidence, the some could not be fully procured of witnesses railed. In my opinion, the view of the learned Single Judge of the Delhi High Court that more possession of a forged document is an offence under Section 474 I.P.C. is contrary to the express language under Section 474 I.P.C. where legislature intended to make mere possession of thing a or documental to bell an offence it would expressly provided so for example possession of fire arms. A status natural has to be construed strictly. As these is no evidence that the petitioner ever intended to use the documents his conviction under section 474 I.P.C. can not be sustained. A person may create forged document for using it and may abandoned the ides. Minster is an essential ingredient for constituting on offence. In (1912) 13 Cr. A status natural has to be construed strictly. As these is no evidence that the petitioner ever intended to use the documents his conviction under section 474 I.P.C. can not be sustained. A person may create forged document for using it and may abandoned the ides. Minster is an essential ingredient for constituting on offence. In (1912) 13 Cr. Law Journal 449 it was held that the filling of a document as the basis of a plaint of as a necessary sequel to the pleas in the plaint is itself the user of the document. Conduct is the principal criterion of guilty knowledge. The mere fact that a man who files a document is interested in establishing its contents does not raise a presumption that he filed it knowing it to be forged. But where a document was filed on which he relied and when it was discovered that it had been forged he filed away, the conduct cannot be held to be consistent with his innocence. 11. Conviction of the petitioner, therefore, is fit to be set aside and in absence of any evidence that he intended to use the document. In the result, this application is allowed and the judgment of the learned Addl. Sessions Judge is set aside and the petitioner is acquitted and he is discharged form the liability of his bail bond. Application allowed.