Krishna Rao, J.
1. This is an appeal against the judgment of the Additional Sessions Judge, Srikakulam sentencing the appellant to rigorous imprisonment for one year under Section 471 read with Section 465, Indian Penal Code and to rigorous imprisonment for six months under Section 420 Indian Penal Code, the sentences being ordered to run concurrently. The conviction under Section 471, read with Section 465, Indian Penal Code, is based on the fact that the appellant used a forged transfer certificate (Ex. P. 3) to obtain admission into the Government Basic Training School at Parvatipur and produced it for the purpose before the Headmaster (P.W. 1) on 9-8-1951.
The conviction under Section 420, Indian Penal Code is based on the consequential fact that ho drew stipends amounting to Rs. 330-10-0 during the period of Ms training in the Basic Training School from 9-8-1951 to 1953. These facts were established by the evidence at the trial and are not now disputed. The only ground urged in support of the appeal is that the appellant believed Ex. P-3 to he genuine and did not know nor have reason to believe that it was a forged document.
2. In order to appreciate the contentions raised, it is necessary to set out some more facts. The transfer certificate in question. Ex. P-3, is in the usual printed form for such certificates. At the top, its number is found written in manuscript as 1509/132. Against column 1, under the heading 'Name of the school which the pupil is leaving', it contains the admittedly genuine rubber stamp impression of the 'Municipal High School, Vizianagaram'.
In Column 2 intended for 'Name of the pupil', the name of the appellant, 'Seeramreddi Simhachalm', has been written. In Column 4, his 'date of birth is entered in the admission register' is given as 1-7-1930. In the subsequent columns, the entries are to the effect that he was in the Third Form, having been admitted into that form on 20-7-1943, that he was qualified for promotion and that he left the school on 4-5-1944.
The certificate purports to have been issued on 22-6-1944 and signed by the Headmaster B.K. Viswanatham on that date. Sri B.K. Viswanatham (P.W. 10) was the Headmaster of the School from 1942 to 1949. He denies the signature in Ex. P-3 and this is borne out by the opinion of the Assistant Examiner of Questioned Documents (P.W. 6).
3. The appellant's deceased father, Rami Naidu, was the teacher-manager of the Aided Elementary School at Tadcndhoravalasa. The appellant began to work as an untrained teacher in the school from 15-11-1949. In the School registers, his general educational qualification was shown as 'III form' and the number 1509/132 of the certificate was quoted. Ex. P-3 was seen at that period by the Deputy Inspectors of Schools, P.Ws. 2, 3 and 4 and accepted as genuine.
After working as an untrained teacher in the school until 9-8-1951, the appellant got himself admitted for Junior Grade Training in the Government Basic Training School at Parvatipur. He underwent the two years' Course of training there and was paid the monthly stipends of Rs. 18 amounting to in all Rs. 330-10-0. His father died in 1953 and he then became the teacher-manager of the school at Tadendhoravalasa.
4. The Senior Deputy Inspector of Schools (P.W. 4) who came across certificates purporting to have been issued by Sri B.K. Viswanadham in the course of his duties, issued a circular in 1953 calling on all the teachers to produce their transfer certificates. In compliance with the circular, the appellant produced Ex. P-3. P.W. 4 then doubted the genuineness of the certificate and addressed the Headmaster of the Municipal High School, Vizianagaram.
Sri K. Ramadas (P.W. 11) who had succeeded Sri B. K. Viswanatham (P.W. 10) in 1949 as the Headmaster, examined the admission register and some other records of that school. He replied on 10-6-1953 that transfer certificate No. 1509/132 dated 22-6-1944 held by the appellant was not issued by the School and was obviously a bogus certificate. (Ex. P-9). In his evidence, he says that the counter-foils book of transfer certificates is destroyed after three years and the attendance registers are destroyed after five years.
It appears that the only record which was available to him for verifying Ex. P-3, was the admission register of the school (Ex. P-33). The number 1509 written in Ex. P-3 is intended to indicate the serial number of the admission in the register Ex. P-33 and the number 132 is intended to indicate the serial number of the transfer certificate. Serial No. 1509 in Ex. P-33 actually refers to the admission of one Donkina Ramanamurthy of Vizianagaram in the IV Form class on 21-6-1943. As it did not tally with Ex. P-3, P.W. 11 came to the conclusion that Ex. P-3 must be a false certificate,
5. After P.W. 11's reply was received, the appellant was called upon by the Deputy Inspector to make a statement about Ex. P-3. On or about 2-8-1953, he made the statement Ex. P-12 before the Junior Deputy Inspector of Schools (Ex, P-12) saying that he did study find pass IIIrd form in the Municipal High School, Vizianagaram in 1943-44 and that lie could prove his attendance through the Headmaster. Subsequently, P.W. 4 framed charges against the appellant on 17-8-1953 for being in possession of a bogus transfer certificate and cheating the Government.
His explanation in answer to the charges is Ex. P-14 dated 10-1-1954. He has stated therein that his father brought Ex. P-3 and appointed him in his own school, that he thought Ex. P-3 to be genuine and therefore undertook earlier to prove it, that after subsequent enquiries he was told that his name was not in the High School records and he had therefore to admit that he did not study there. The District Educational Officer thereafter sent a complaint to the police on 10-2-1954 and the police laid the charge-sheet against the appellant in 1957.
6. There is absolutely no evidence as to the time and circumstances in which Ex. P-3 was brought into existence or as to the person that forged it. It is common ground that the appellant was only about 14 years old in 1944, when he claims to have left the Municipal High School, Vizianagaram. His father appointed him as a teacher in his own school in November, 1949 on the strength of Ex. P-3. Thus there is nothing inherently improbable in the appellant's story that his father obtained Ex. P-3.
7. The prosecution case is that the appellant did not read in the Third Form at all in the Municipal High School, Vizianagaram and must have therefore known that Ex. P-3 was a false or forged document. On this question, the prosecution originally relied on the appellant's retracted admission in Ex. P-14. The appellant's version at the trial was that P.W. 4 threatened and induced him to give Ex. P-14, saying that he could thereby extricate himself and the grants to his school would not be held up.
This allegation is denied by P.W. 4 and is not made out. But a perusal of Ex. P-14 itself shows that the admission was not unqualified and was solely due to the fact that the Municipal High School authorities did not confirm his having studied there. It cannot therefore be said that Ex. P-14 by itself is proof of the fact that the appellant did not study in the Third Form at the Municipal High School, Vizianagaram. Apparently realising this defect, the Additional Public Prosecutor in the court below requested P.W. 11, on 13-11-1957 during the course of the trial, to bring the admission register Ex. P-33.
The register relates to the period from 1926 to 1952 and the entries for the year 1943-44 are said to have been made by a clerk S. Apparao, who has not been called as a witness. Sri B.K. Viswanadham (P.W. 10) who was the Head Master from 1942 to 1949 admitted that he did not handle the Third Form Class in 1943-44.
It is clear from his evidence that he had no personal recollection of his students. The absence of any entry relating to the admission of the appellant in 1943-44 is relied on by the prosecution to prove that the appellant did not read in the Third Form Class in that year.
8. Sri Advai Rama Rao, the learned counsel for the appellant, contended (i) that the appellant was seriously prejudiced by the belated production of Ex. P-33 as evidence for the first time at the trial and that the provisions of Section 173(4) of the Criminal Procedure Code have been violated, (ii) that Ex; P-33, has not been properly proved as the Headmaster P.W. 10 has nothing to do with the entries made therein and as the clerk who made the entries was not called as a witness find (iii) that the absence of any entry relating to the admission of the appellant in 1943-44 is totally inconclusive because the appellant might have been admitted into the school in an earlier year and then promoted into the III Form.
9. With regard to the first contention, I see no force in the complaint that Section 173(4) of the Criminal Procedure Code has been violated. The object of Section 173(4) is merely to facilitate a fair and speedy trial, by ensuring that copies of all material documents and statements in the possession of the prosecution are furnished in advance to the accused in order that he may be ready to meet the evidence to be adduced by the prosecution at the trial.
It does not bar the prosecution from proposing to rely on any additional evidence that may be subsequently discovered by them. Ex. P-33 was not in the possession of the prosecution until it was brought to the Court by P.W. 11 on 14-11-1957. It was only on 13-11-1957 that they seem to have proposed to rely on it. Hence there is no question of any contravention of the provisions of Section 173(4) of the Criminal Procedure Code.
There is also no question as to its genuineness because it was continuously maintained from 1926 to 1952 and the Headmasters P.Ws. 10 and 11 say that it is a register of the school. No doubt its belated production must have prejudiced the defence, so far as cross-examination with reference to it and the adducing of rebutting evidence was concerned. But no adjournment for this purpose was asked for at the trial nor does Sri Advai Rama Rao say that he wants a further opportunity for cross-examination and for letting in rebutting evidence. In these circumstances, I am unable to give effect to the contention that the appellant has been prejudiced in the matter.
10. With regard to the proof of Ex. P-33 the prosecution relied on Section 35 of the Evidence Act. In this connection Sri A. Rama Rao cited the decisions in Seshagiri Rao v. Emperor, 1938 Mad WN 111, and in Hoak Saing v. Ma E Hla, AIR 1940 Rang 191. In 1936 Mad WN 111, King J., held that the entry made by a teacher in a private elementary school in its admission register is not admissible either under Section 34 or Section 35 of the Evidence Act.
In AIR 1940 Rang 191, a Division Bench of the Rangoon High Court held that an employee in a school other than a Government school is not a public servant and any entry in its register made by him is not one made in a public or official register by a public servant in the discharge of his official duty. Hence entries in the registers of schools other than Government schools were held to be not admissible under Section 35 of the Evidence Act.
But these decisions are of no assistance to the appellant, as the entries here were made by employers not of a private school hut of a Municipal High School. Under Rule 52 the Madras Educational Rules (21st Edition 1958 which alone is available to this court for reference), every school is required to keep a register of admissions and withdrawals in the form prescribed in Appendix 6. The register is therefore an official register.
Under Section 358 of the District Municipalities Act V of 1920, every municipal officer or servant shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. It follows that the clerk of the Municipal High School was a public servant and that he maintained it in the discharge of his official duty, Ex. P-33 is an official register and the entries therein are relevant under Section 35 of the Evidence Act.
The section embodies an exception to the rule of hearsay and if its requirements are satisfied it is unnecessary for the purpose of proving the entries that the clerk who has made the entries himself should be called as a witness. This view is supported by the decisions in Abheraj Singh v. Gaya Singh, 135 Ind Cas 387 : (AIR 1932 Oudh 137), Aga Jan Khan v. Kesheo Rao, AIR 1940 Nag 217, and in Municipal Board, Aligarh v. Mumtaz Khan, AIR 1948 All 309. In 135 Ind Cas 387 : (AIR 1932 Oudh 137), the learned Single Judge of the Oudh Chief Court held that the entry of a report made at the Police Station relating to an offence, being an entry in a public report made by a public servant in the discharge of his official duties is admissible as evidence, even if the person who made it is alive and not called as a witness.
In AIR 1940 Nag 217, it was held by Pollock, J. that the entries of birth of a boy in the registers of two high schools were admissible under Section 35 of the Evidence Act as entries made by a public servant in a public or official register in the discharge of his official duty and that the question whether the public servant had any special means of knowledge did not affect the admissibility of the entries under Section 35, though it may affect their value.
No doubt die report of the decision does not show whether the two high schools in question viz., the Model High School and the Hitkarini High School at Jubbalpore were schools run by the Government of the State and whether that was the ground for treating the registers of the schools as public registers and the employees of the schools as public servants. This aspect of the matter with reference to municipalities was discussed in AIR 1948 All 309.
The Division Bench held that a municipality is a public body and that a book or register maintained by that body is a public book or register within the meaning of Section 35 of the Evidence Act.
11. However, the prosecution here essentially rely not on the actual entries found in Ex. P-33, but on the absence of any entry that the appellant was admitted to the school. In The Queen Empress v. Grees Chunder Banerjee, ILR 10 Cal 1024, Field, J., observed that a book of account itself is not relevant under Section 34 of the Evidence Act to disprove the alleged transaction by the absence of any entry concerning it.
This view of Section 34 was referred with approval by Lord Robertson and Lord Davey in Ram Pershad Singh v. Lakhpati Koer, ILR 30 Cal 231 at p. 247 (PC). In, In the matter of Juggun Lall, 7 Cal LR 356, it was held by a Division Bench of the Calcutta High Court thus :
'Section 35 only provides that 'any entry in an official or public book, which is duly made by a public servant in the execution of his duty, is of itself a relevant fact' but does not make the public book evidence to show that a particular entry has not been entered in it.'
It is only as a matter of probability and on the ground that the public servant, who maintained the register, would not have omitted any transaction which has to be entered in it that the absence of entries becomes relevant under Section 9 or Section 11 of the Evidence Act. But the absence of entries by itself may be capable of some other explanation such as that the public servant was not enjoined to enter every transaction or was negligent or had some motive to omit some of the transactions.
It is from this point of view that the non examination of any of the clerks that maintained Ex. P-33 becomes material. My attention has not been drawn to any rule in the Madras Educational Rules which requires that the particulars of every pupil admitted into a school must be entered in the admission register. The defence had no opportunity to cross examine the clerks, on the point as to whether the name of every pupil admitted was systematically registered in Ex. P-33.
P.W. 10 says that the entries in Ex. P-33 were checked by the auditor for verification of school receipts; apparently fees paid by pupils whose names are not entered in the admission register did not have to be accounted for. It is therefore possible that entries in Ex. P-33 were omitted with a dishonest motive. The use of the authorised form with the genuine rubber stamp impression of the school and the manner in which Ex. P-33 has been forged, quoting No. 1509 which falls within the range of admission numbers for the year 1943-44, suggest that some member of the establishment of the school forged and issued Ex. P-3.
The prosecution did not adduce any evidence to establish that the admission register of the school was regularly and systematically maintained, without the probability of any omission to enter the name of any pupil admitted into the school. In the circumstances, front the mere absence of entries it would be extremely unsafe to draw the inference that the appellant was not admitted into the III Form as claimed by him.
12. The third contention of the learned counsel has also considerable force. The appellant did not state specifically nor can his defence be taken to imply that he was admitted into the Municipal High School Vizianagaram only in June, 1943 for reading in the III Form. His story is consistent with his having joined the school in an earlier year and reached III Form by promotion. But the prosecution marked only the entries of admission for 1943-44 as Ex. P-33.
No doubt as the register covered the entire period from 1926-1952, it was open to the appellant to have picked out the entry relating to him in any year earlier than 1943. But the handicap of the appellant has to be borne in mind that the register was suddenly produced during the course of the trial. The onus was on the prosecution to establish that the appellant was never a pupil in the Municipal High School, Vizianagaram and could not have therefore read in or passed III Form there, because that was the sole' basis of proof for his knowing or having reason to believe that Ex. P-3 was forged.
As only the entries in the admission register for 1943-44 were tendered as evidence and as none of the clerks who are directly concerned in the maintenance of the register were called as witnesses, I am clearly of the opinion that this onus has not been discharged.
13. It follows that the evidence does not displace the appellant's defence that he believed Ex. P-3 to be genuine and that the ingredient of mens rea necessary for the offences of which the appellant has been convicted has not been established. There is only a strong suspicion against the appellant, which does not amount to proof. The appellant is entitled to the benefit of the doubt and to an acquittal. The appeal is allowed and the convictions and sentences are set aside.