SANATAN SENAPATI Vs. EMPEROR

JUDGEMENT

(1.) The petitioner Sanatan Senapati has been convicted by the learned Assistant Sessions Judge of Puri of an offence under Section 471 read with Section 467, Indian Penal Code, and he has been sentenced to rigorous imprisonment for one year plus a fine of Rs. 500 or in default to undergo rigorous imprisonment for a further period of one year. The petitioner preferred an appeal to the learned Sessions Judge of Ganjam-Puri, which appeal was dismissed by the learned Sessions Judge. It was alleged against the petitioner that in 1942 he had in. stituted a Small Cause Court suit before the Subordinate Judge of Puri against one Nara-singha Padhan. The suit was based on a pro-missory note purporting to have been executed by one Ganesh Padhan, deceased father of Narasingha Padhan. The promissory note was filed along with the plaint. It was dated 23 April 1940. The case of Narasingha Padhan was that his father had died long before the aforesaid date. It appears that after the filing of the written statement by Narasingha Padhan, the suit was dismissed for default of both parties. Narasingha Padhan thereafter filed a petition under Section 476, Criminal P. C, and, after an inquiry, the learned Subordinate Judge of Puri made a complaint against the petitioner. On this complaint, the petitioner was put on trial with the result indicated above.

(2.) The most important point on which the whole case of the prosecution rests is the date of Ganesh Padhan's death. It seems that the handnote in question does bear the signature of Ganesh Padhan on a stamp. Below the signature, however, certain writing has been made, and the date 23 April 1940 has been given. Both the Courts below have found that Ganesh Padhan died on 17 April 1940, i. e" six days before the execution of the aforesaid handnote. The learned lower appellate Court has proceeded on the basis of Expln. (2) of Section 464, Indian Penal Code, which says that the making a false document in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. If the prosecution fails to prove that Ganesh Padhan died on 17 April 1940 then the prosecution case would undoubtedly fail. Apart from the evidence of Narasingha Padhan himself, who is undoubtedly an interested witness, the only other evidence in support of the prosecution case that Ganesh Padhan died on 17 April 1940 is the entry in a book called the chauki- dar's hathchitta. This entry is Ex. 5 in the record. Both the Courts below have accepted this entry as correct, and have relied on it in coming to the finding that Ganesh Padhan died on 17 April 1940.

(3.) The learned advocate appearing for the petitioner has contended before us that the said entry (Ex. 5) is not admissible in evidence. He has also contended that even if the entry is admissible in evidence, its probative value in the peculiar circumstances of the case is nil. It is necessary to examine first if the entry in question is admissible in evidence. As I have stated above the entry occurs in the chaukidar's hathchitta. The chaukidar in question was P.W. 2. This chaukidar said that he did not remember Who made the entry in the hathchitta regarding the death of Ganesh Padhan. He further said that he could not say on what date Ganesh Padhan died. In cross-examination he stated that he could not say if Ganesh Padhan's date of death had been correctly entered in the hathchitta. It was suggested on behalf of the prosecution that the entry in the hathchitta was made by one Krushna Charan N ay ak (P.W. 3). This witness denied that he had made the entry (Ex. 5). It appears that the handwriting of this witness was compared by an expert with the entry (Ex. 5) and the opinion of the expert was that the entry was not written by this man. The only other witness on behalf of the prosecution, who gave evidence on this point is P.W.I (a pleader's clerk). This witness was not definite in his evidence. He stated that the entry appeared to be in the handwriting of Krushna Charan Nayak. It would be clear from what I have stated above that the prosecution has failed to prove as to who made the entry (Ex. 5) and in what circumstances. The question now is if the entry (EX. 5) is admissible in evidence. The learned Advocate-General appearing for the Crown contends that the entry is admissible in evidence under Section 35, Evidence Act, Section 35, Evidence Act, makes relevant an entry in any public or other official book, register or record, made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept. The learned Advocate-General has referred to Rule 126 of the Orissa Police. Manual under which chaukidars are supplied with hathchit-tas for the purpose of reporting of deaths or births. The Rule says, that the chaukidar shall get entries made in the hatchittas by some educated person.: In Sampat V/s. Gauri Shankar (11) 14 O.C. 68 it has been held that when an entry in a chaukidar's register is admittedly not made by the chaukidar, and there is no evidence that it was made by any other public servant or that it was the duty of any public servant to make it, the entry is not admissible in evidence under Section 35, Evidence Act.