R.C. Mitter, J.
1. The appellant before us was charged of offences under Sections 193 and 218,1.P.C. The jury returned a unanimous verdict of not guilty of the alleged offence under Section 218 but found the appellant unanimously guilty under Section 193, I.P.C. The Judge accepted the verdict and sentenced the appellant to undergo rigorous imprisonment for four years. The subject matter of the charge is entry No. 43 in the general diary of the police station of 2nd November 1935. That entry was made on that date at 9-30 p. m. in the night. The case of the prosecution is that one Gouri Chakravarti was found missing on the evening of 1st November 1935. On the next morning his brother Charu went in search of Gouri but could only find his shoes and chadar in Gouri's arat. He waited for sometime for the return of his brother but in vain. Inquiries were made toy Charu from the neighbours but no trace of him could be found. He thereafter went to the thana and reported to the appellant who was in charge of the police station at the time that his brother was missing. The accused noted the said information in a loose sheet of paper, as also the description of Gouri Chakravarti which his brother Charu gave him. Later on, Charu again went to the thana at about 5 p. m. on the same day and the evidence is that Charu told the appellant that blood marks on some rags and on the loose earth near Indra Dutt's arat had been found and requested the accused to come and see the blood marks personally. The accused did not make any note at that time but verbally asked Charu to go and search for the dead body. Later on in the evening one Nani Gopal Chakravarty who had seen the blood marks outside Indra Dutt's arat also went to the thana and reported to the appellant, who was in charge of the thana at that time, that he had seen the blood marks, near Indra Dutt's arat and finally at about 9 p. m. Purna Chakravarti and others went to the arat of one Ajoy Gopal Dutt and took Ajoy to the thana and told the appellant that they had discovered blood marks near the said arat of Indra Dutt, At 9-30 p. m. the accused made the entry in question, namely, entry No. 43, in the general diary. He stated therein that it had been reported to him that Gouri Chakravarti had been missing but he did not record in that entry the fact that it had been reported to him later in the day that blood marks had been found near about the place of Indra Dutt.
2. The case of the prosecution is that the accused intentionally omitted to note in the general diary the fact that it was reported to him that blood marks had been found near about the arat of Indra Dutt. We need not deal with the charge against the appellant under Section 218 in detail. The learned Sessions Judge in the course of delivering his charge to the jury in respect of the offence charged under that section pointed out the fact that the first information about the murder was lodged at the thana on the next day at noon, that is to say, on 3rd November at noon, and he also said that up to that time there was absolutely no necessity for the accused to change the general diary. In course of his charge to the jury when dealing with the alleged offence under Section 218, he also directed the jury to the following effect:
If therefore you find that the preparation of the incorrect record by the accused, was due to a mere accidental blunder on his part, then you may presume that the accused had not the intention or knowledge which is essential element of the charge under Section 218, I.P.C. If you think that the accused as a result of carelessness or gross negligence forgot to mention some material facts in the General Diary entry, that act or illegal omission cannot be deemed to be with the knowledge or intention as required in Section 218, I.P.C., and the accused is entitled to an acquittal.
3. After the charge to the jury on the alleged offence under Section 218 the learned Sessions Judge took up the case against the appellant under Section 193,1. P.C. He said as follows:
In order to bring home to the accused the charge under Section 193, I.P.C., the prosecution will have to prove beyond reasonable doubt, (1) that the accused made a false entry or illegally omitted to make any entry, (2) that he did so intentionally, (3) that he did so intending that the false entry should appear in evidence in a judicial proceeding or in any other proceeding, (4) that the person conducting the judicial or other proceeding had to form an opinion upon the evidence in which such false evidence appeared, (5) that the accused intended that person to entertain an erroneous opinion upon the evidence, (6) that such erroneous opinion touched a point material to the result of such proceeding.
4. Then he took up these six points one by one and in dealing with the last point he charged the jury in the folio-wing manner:
Under these circumstances you will have to consider whether the illegal omissions made by the accused were material in the murder trial. If you are so satisfied, then this point is proved.
5. In dealing with the second point, namely, whether the omission to mention the fact that it was reported that blood marks were found near the arat of Indra Dutt was done intentionally or not, the learned Sessions Judge did not repeat the caution to the jury which caution he gave to the jury in charging them with regard to the alleged offence under Section 218. In our opinion the question whether there has been an illegal omission in the entry No. 43 is quite beside the point in considering the offence said to have been committed under Section 193, I.P.C. That section deals with the punishment for giving false evidence or fabricating false evidence. Section 192 defines the offence of fabricating false evidence. The essence of the offence consists in this: that a false entry must be made in a book or record or a false statement must be made in a document. Secondly that a false entry or false statement must be made with a certain intention, namely, that the false entry or false statement may appear in evidence in a judicial proceeding or any other proceeding taken by law before a public servant. Thirdly a false entry or statement so appearing in evidence may cause any person in such proceeding who has to form an opinion upon the evidence to entertain an erroneous opinion. Fourthly the erroneous opinion must be touching upon a material point, that is to say, a point material to the result of the said proceeding. An entry would be a false entry or a statement in a record or document would be a false entry if it does either by reason of some false additions or of some material omissions misrepresents the truth. The omission may be illegal or may not be illegal. The thing to consider is what is the effect of the omission on the entry as made or on the statement as occurring in a document. In our judgment the learned Judge was not quite right when he directed the jury that the omission must be an illegal omission. In fact in his charge to the jury, the Judge assumed that the omission to mention the blood marks found in Indra Dutt's arat in the general diary was no information given at the thana of a cognizable offence and we do not see under what law the accused was bound to record in verbatim what he was told by the informant. The information that was given at the thana in substance was that a man was found missing and the appellant recorded the substance of that information.
6. The difficulty in the case is however with regard to the second element, that is to say, whether the accused made the entry No. 43 in the manner that he did with the necessary intention required in Section 192, that is elements Nos. 2 and 3 in the learned Judge's charge. On this point the evidence is absolutely nil. In fact while dealing with Section 218 the learned Judge pointed out that the first information about murder was lodged the next day at noon and on 2nd November 1935, that is to say, the previous day there was no motive in making the entry in the station diary in the way that was made by the appellant. In passing the sentence the learned Judge also stated as follows:
It has been argued in mitigation of his sentence that because the accused did not wish to go out that night owing to his son's illness, that he was prompted to make the false entry. I have taken this circumstance into consideration. But there is evidence to show that some other officers were also present that day in charge of the thana at different hours and presumably they were present in their quarters at the thana. The accused could have informed those officers about the matter brought to his notice.
7. There is evidence on the record that on the day in question, namely, 2nd November, the accused's son was ailing. It seems to us that in this state of the evidence the learned Judge ought to have directed the, jury to this effect: that there was no evidence to prove that the accused intended that the false entry may appear in evidence in a judicial proceeding at the time when he made that entry. In this view of the matter we set aside the conviction and sentence passed upon the appellant and acquit him. We direct him to be released from his bail.
8. I agree.