Das, J.The petitioner Sanatan Senapati has been convicted by the learned Assistant Sessions Judge of Puri of an offence u/s 471 read with Section 467, 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 23rd 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 u/s 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 Padhans 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 23rd April 1940 has been given. Both the Courts below have found that Ganesh Padhan died on 17th 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, 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 17th 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 17th April 1940 is the entry in a book called the chauki-dars 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 17th 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 chaukidars 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 Padhans 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 Nayak (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 pleaders 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 u/s 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. Gauri Shankar 14 O.C. 68 it has been held that when an entry in a chaukidars 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 u/s 35, Evidence Act.

4. This case has been considered in several subsequent decisions, such as Musammat Baldei and Others Vs. Abhey Ram, and Muhammad Jafar v. Emperor A. I. R. 1919 Oudh 75. Some doubt was expressed about the correctness of the aforesaid decision in Musammat Baldei and Others Vs. Abhey Ram, . The position has been examined at some length with reference to the case law on the subject in Muhammad Jafar v. Emperor A. I. R. 1919 Oudh 75 where it has been observed that, u/s 35, Evidence Act, it is not enough to prove that the chaukidars register is an official book, but it is also necessary to prove that the entry relied on was either made by a public servant in the discharge of his official duty or made by some other person in performance of a duty specially enjoined by the law of the country. Therefore, for the application of Section 35, Evidence Act, one must know who has made the entry, and in what circumstances. If the chaukidar or some other person makes the entry in the discharge of his official duty, then one of the essential conditions mentioned in Section 35, Evidence Act, is fulfilled. If however, the entry is not made by a public servant In the discharge of his official duty, then the necessity to show that there was any enactment especially enjoining the performance of the duty, arises. In Mt. Naina Koer v. Gobardhan Singh AIR 1918 Pat. 40 the question of the admissibility of such an entry u/s 35, Evidence Act, was not specifically considered. In that case, the person who made the entries, gave, evidence, and it was held that the entries were admissible either u/s 157 or u/s 159, Evidence Act, or possibly under both. In Madho Saran Singh Vs. Manna Lal and Others, it has been held that such an entry is admissible in evidence. Reference was made in that case to Rule 126, Police Manual, and it was definitely known in that case that the dafadar had made the entry as the chaukidar was illiterate. The dafadar said that he wrote the entry at the request of the chaukidar. In such circumstances, it was held that the entry in the hathchitta was admissible in evidence.

5. The present case, is, however different from the case referred to above. In the present case, we do not know who made the entry, and in what circumstances. In the absence of reliable evidence as to who made the entry and in what circumstances, it cannot be said that the conditions laid down in Section 35, Evidence Act, have been fulfilled. I am, therefore, of the view that the entry in question was not admissible in evidence. Even if it was admissible in evidence, it has, in my opinion, a very little probative value. The chaukidar himself is unable to give the date of death of Ganesh Padhan. Nobody else gives the date cf the death of Ganesh Padhan except his son Narsingh Padhan, who is interested in the prosecution of the petitioner. In such circumstances, I am of the opinion that the prosecution has failed to prove the date of death of Ganesh Padhan, and the Courts below have wrongly relied on Ex. 5 in coming to the finding that Ganesh Padhan died on 17th April 1940. The result, therefore, is that the application is allowed, and the conviction and sentence passed against the petitioner are set aside. The petitioner is acquitted and should be forthwith released, if he is in jail. If he is on bail, the bail bond should be discharged.

Manohar Lall, J.

6. I agree.