V.B. Raju, J.
1. The applicant Nagindas Keshavlal was convicted by the Judicial Magistrate, First Class, Godhra, under Section 409, Indian Penal Code, and sentenced to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 500/-, in default to undergo further rigorous imprisonment for three months, and this conviction was confirmed but the sentence was reduced in appeal by the learned Sessions Judge of Panchmahals at Godhra in Criminal Appeal No. 52 of 1960.
2. The charge against the applicant was that he was Naka Karkun on duty at Satpul Octroi Naka from 9 P.M. to 5 A.M. On the night of 31-8-1958 and 1-9-1958, that at 1 A.M. he received Rs. 9-6-0 as octroi duty from one Natharmal in respect of 75 maunds of bananas imported from Baroda that receipt (Ex.6) for this amount was given; that the applicant was relieved by Nakedar Sadatali and that instead of this amount of Rs. 9-6-0 received by the applicant he paid Rs. 4-6-0 to Nakedar Sadatali and he misappropriated the balance of Rs. 5/-. To prove this case, the prosecution relied mainly on the evidence of Sadatali that he had received only Rs. 4-6-0 from the applicant instead of Rs. 9-6-0 and on the receipt (Ex.6) showing that the applicant had received Rs. 9-6-0 from Natharmal as octroi duty. The prosecution also wanted to rely on the counterfoil of this receipt which was counterfoil No. 1003 in Book No. 11. According to the prosecution this counterfoil was caused to be destroyed either by the applicant or by one Winfred the Naka Superintendent. The prosecution therefore led secondary evidence of this counterfoil No. 1003 in receipt book No. 11. The nature of the secondary evidence that was led was oral evidence regarding the counterfoil of this receipt. The case of the prosecution was also that page 115 of the Rojmel Book in which all the entries are entered and in which entry should have been made regarding the counterfoil No. 1003 was missing. The prosecution therefore led secondary evidence of this page 115 of the Rojmel Book in order to show that the counterfoil No. 1003 in receipt book No. 11 corresponding to the original receipt (Ex.6) was in respect of Rs. 4-6-0 only and that the quantity of bananas shown in the counterfoil was only 35 maunds instead of 75 maunds shown in the original receipt (Ex.6) given to Natharmal the owner of the truck in which the bananas were imported.
3. The learned Sessions Judge rejected the contention of the defence that secondary evidence was not admissible. He held that the secondary evidence was properly admitted and mainly basing his conclusion on the secondary evidence of the contents of the counterfoil No. 1003 in receipt Book No. 11 he confirmed the conviction of the applicant.
4. In revision before me it is contended that the secondary evidence was wrongly admitted in respect of the counterfoil in receipt book No. 11 and also page 115 of the Rojmel Book. It is also contended that if this secondary evidence is excluded the conviction of the applicant would not be justified.
5. I will first take up the question of the admissibility of secondary evidence respect of receipt book No. 11 containing the counterfoil No. 1003 corresponding to the original receipt (Ex.6). Under Section 65(c) of the Evidence Act if the original document is destroyed or lost secondary evidence may be given of the existence condition or contents of the document. It is on this section that the prosecution relies. According to the prosecution receipt book it was not found and was most probably caused to be destroyed either by the applicant himself or by one Winfred. To prove that this receipt book was lost the prosecution relied on the evidence of the Chief Officer that he asked Winfred to produce the receipt book No. 11 and the Chief Officer received a report from Winfred that the book could not be found. The prosecution also relied upon the evidence of the President of the Municipality that the Chief Officer had made a report to him that Receipt Book No. 11 was missing. According to the Chief Officer the receipt book was in the custody of Winfred and Winfred had made a report to him that the book was not found. It is therefore contended that the evidence of the Chief Officer and the President that as a result of the inquiry they found that the receipt book was not found and was missing is a sufficient proof of the loss of the receipt book notwithstanding their failure to examine Winfred who was according to the prosecution in the custody of the book. It is also contended that as Winfred was reported to have destroyed the receipt book his evidence was not likely to support the prosecution and in these circumstances the prosecution could not have examined Winfred.
It is contended by the learned Government Pleader that as a result of the inquiry made the receipt book was not found and secondary evidence is admissible in evidence although Winfred himself who was in the custody of the book was not examined by the prosecution. This contention is not correct. The result of inquiries is always hearsay. A person making an inquiry is told orally or in writing and whatever he is told is ordinarily hearsay and becomes inadmissible in evidence under Section 60 of the Evidence Act. Section 60 provides:
Oral evidence must in all cases Whatever be direct; that is to say-if it refers to a fact which could be seen it must be evidence of a witness who says he saw it;
if it refers to a fact which could be heard it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner it must be the evidence of a witness who says he perceived it by that sense or in that manner.
if it refers to an opinion or to the grounds on which that opinion is held it must be the evidence of the person who holds that opinion on those ground....
6. What a person is told by another either voluntarily or as a result of questions put to him or as a result of inquiries which mean questions put is inadmissible in evidence under Section 60 of the Evidence Act. If authority is needed the English case of R. v Saunders (1899) 1 Q.B. 490 can be referred to. The principle that answers to inquiry are not admissible in evidence may have some exceptions but we are not dealing with any such exception in the present case. The contention of the learned Government Pleader that Winfred would not have supported the prosecution does not enable the prosecution to get over the difficulty. It is for the prosecution to prove the loss of the document if it wants to give secondary evidence of the contents of the document and that burden must be discharged by the prosecution. If Winfred is examined and if he gave evidence that the book was not with him the Court can infer that the book is not forthcoming if the Court accepts the evidence of the Chief Officer that the book had been given to Winfred. Even if Winfred does not support the prosecution case the Court can come to a conclusion that the document is lost. As Winfred is not examined the prosecution has failed to prove that receipt book No. 11 was lost and secondary evidence of that document is therefore inadmissible in evidence.
7. The prosecution also tried to produce secondary evidence of page 115 of the Rojmel Book. According to the prosecution on page 115 of the Rojmel an entry had been made by Sadatali of the counterfoil No. 1003 in receipt book No. 11. The entry on Rojmel page 115 would correspond to secondary evidence of the counterfoil No. 1003 in receipt book No. 11. It is only when the primary evidence is lost that the question of admissibility of secondary evidence arises. The Courts below lost sight of the fact that the Rojmel page 115 was itself secondary evidence of the counterfoil No. 1003 in receipt book No. 11 and the question whether page 115 of the Rojmel was missing and if so whether secondary evidence of page 115 can be admissible in evidence was entirely irrelevant because Section 65 of the Evidence Act deals with the admission of the secondary evidence of the contents of documents and it does not deal with secondary evidence of other secondary evidence. We need not therefore go into the question whether the loss of page 115 of the Rojmel has been properly proved or not. By producing page 115 of the Rojmel the prosecution merely wanted to show that in counterfoil No. 1003 the amount entered was Rs. 9-6-0 and the quantity of bananas entered was 75 maunds. What they wanted to prove were the contents of counterfoil receipt No. 1003 and they wanted to prove the same by secondary evidence of page 115 of the Rojmel. Secondary evidence of secondary evidence cannot be admitted even if one type of secondary evidence is found to be lost. Evidence produced by the prosecution of the contents of page 115 of the Rojmel must therefore be excluded from consideration.
8. The learned Government Pleader also contends that even if these two pieces of evidence are excluded there remains other pieces of evidence namely the Jatwari Patrak (Ex. 13) letter of resignation of the accused in his own hands (Ex.10) and reports of the complainant Pathak the Naka Inspector (Exs. 7 & 9). As regards the Jatwari Patrak it is a Register kept by a Naka Karkun and in this case by D.A. Vyas the Naka Karkun. It is a Register showing the details of goods imported according to varieties without giving details of each of the items of tax collected and from these entries in the Jatwari Patrak the learned Government Pleader wants the inference to be drawn that the counterfoil receipt No. 1003 in receipt book No. 11 was in respect of Rs. 4-6-0 only. That again shows that Jatwari Patrak (Ex 13) is sought to be used to prove the contents of the counterfoil No. 1003 in receipt book No. 11. The contents of counterfoil No 1003 must be proved by primary evidence unless secondary evidence is admissible. As I have already mentioned secondary evidence is not admissible. The Jatwari Patrak must therefore be excluded from consideration.
9. As regards Ex. 10 the letter of resignation by the accused no doubt he admits that certain erasures and corrections were made on the receipt on 1 but he makes no reference of counterfoil No. 1003. The learned Sessions Judge has observed as follows with regard to this document:
I hold therefore that Ex. 10 in so far as it contains confessional statement of the accused is not admissible in evidence and the learned Magistrate who had implicitly regarded the resignation as voluntary has not appreciated the evidence on this point in the correct manner.
The learned Sessions Judge has therefore not relied on Ex. 10.
10. The learned Government Pleader also relied on Exs. 7 & 9 which are reports made by the complainant Pathak. Mr. Pathak admitted that he had no personal knowledge of the commission of the offence and at the most his reports would refer to the contents of some document as seen by him. The reports contain secondary evidence of the contests of documents whose loss has not been proved and they must be held to be inadmissible in evidence.
I therefore set aside the order in appeal passed by the learned Sessions Judge and direct that he should appreciate the oral evidence and decide the appeal afresh without considering the secondary evidence referred to above.