Sadasiva Aiyar, J.
1. These are appeals by the 2nd and 1st accused respectively against the convictions and sentences passed upon them in Sessions Case No. 57 of 1913 on the file of the Sessions Court of South Malabar. The first accused P.S. Narayana Aiyar was the Head Clerk of the Stationary Sub-Magistrate's Court of Manjeri and the 2nd accused was an attender in that Court between November 1911 and June 1912. They were charged, the 1st accused with having fabricated and forged the bail bond, Exhibit A, and the 2nd accused with the fabrication and forgery and also with abetment of those offences.
2. The facts are a little complicated. There was a Calendar Case No. 562 of 1911 in that Court in which the prosecution witness No. 6, Unni Mamu, was the accused and in which prosecution witness No. 7, Kutti Rayan, had stood surety for the 6th witness, Unni Mamu. On the 4th November 1911 this Kutti Rayan, P.W. No. 7, executed the genuine bail bond, Exhibit B, to produce the accused Unni Mamu on the subsequent days fixed for the hearing of that Calender Case, No. 562 of 1912. In January 1912 another Calendar Case No. 26 of 1912 before the Sub-Divisional 1st Class Magistrate of Calicut (not the Stationary Sub-Magistrate of Manjeri) was commenced against one Cheku Gurukal and others on a charge of having committed an offence at Calicut on the 4th November 1911.
3. Cheku Gurukal pleaded alibi at Manjeri and wanted to support that plea by fabricating evidence that on the 4th November 1911 (the date on which according to the charge against him in Calender Case No. 26 of 1912 he committed an offence at Calicut) he was in the Manjeri Stationary Sub-Magistrate's Court signing a bail bond on behalf of Unni Mamu, the accused in Calender Case No. 562 of 1911 on the file of the Stationary Sub-Magistrate's Court. He approached the Court attender, 2nd accused in this case, before the end of February 1912 in order that a bail bond purporting to be executed by him on 4th November 1911 might be substituted in the records of Calendar Case No. 562 of 1911 for the genuine bail bond, Exhibit B, which had been already executed by Kutti Rayan. The forged bail bond, Exhibit A, which is in the handwriting of the 2nd accused was accordingly prepared and substituted in the records of Calendar Case No. 562 of 1911. This was, as I said, before the end of February 1912 and after 16th January 1912, and while that Case No. 562 of 1911 was pending in the Sub-Magistrate's Court. Then Chekhu Gurukal, the accused in Calendar Case No. 26 of 1912 on the file of the Sub-Divisional Magistrate's Court, applied for a copy of the bail bond falsely alleging that he had executed on the 4th November 1911 a bail bond in the Stationary Sub-Magistrate's Court and got the copy, Exhibit R, which was written by the prosecution witness No. 9 in this case, a copyist of the Stationary Sub-Magistrate's Court. He produced that copy in Calendar Case No. 26 of 1912 to prove his absence from Calicut on the 4th November 1911, but his alibi was disbelieved and he was convicted in that case. Meanwhile suspicion had arisen as to the genuineness of the original of the copy, Exhibit R, and inquiries were started in the beginning of May 1912. Both Exhibits B and A were missing from the records of Calendar Case No. 562 of 1911. Then the P.W. No. 10, the Bench Clerk of the Stationary Sub-Magistrate's Court, produced the forged bond, Exhibit A, to the Sub-Magistrate and made some statements as to how it was not placed among the records when they were sent to the record room on 1st May 1912 after the Case No. 562 of 1911 had been decided. Then the 2nd accused produced the genuine bail bond, Exhibit B, some months afterwards and he gave some explanation as to why it had got out of the records of Calendar Case No. 562, 1911. Then the case was started against these two accused and also against Cheku Grurukal who was first charged as the 3rd accused in this case, he having placed Unni Mamu's mark upon the antedated forged bail bond, Exhibit A.
Cheku Gurukal was then taken as
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and he has been examined as P.W. No. 5 in this case.
4. The Sessions Judge has convicted both the accused, mainly on the direct evidence of P.W. No. 5, the approver, which according to the Sessions Judge is corroborated in certain material particulars by the evidence of the copyist P.W. No. 9 the Bench Clerk Kailasam Aiyar P.W. No. 10, and the record keeper Govinda Menon P.W. No. 11. So far as the 2nd accused, the appellant in Criminal Appeal No. 733 of 1913, is concerned there can be very little doubt of his guilt as it was he who wrote the body of the forged document, Exhibit A, and as he was in possession of the genuine bail bond. Exhibit B, between May 1912 and September 1912 according to his own case. The genuine document came into the records of Calendar Case No. 562 of 1911 on the 4th November 1911. The Bench Clerk, P.W. No. 10, says : I am hold responsible for papers in pending cases but not when they are in the record room. I am not responsible for papers after handing' them over to the record room.' Then the Sub-Magistrate, P.W. No. 2, says : 'The record of a pending case is usually with the hearing clerk : 1st accused was never a hearing clerk.' In the usual course of business, therefore, the genuine bail bond Exhibit B must have been with the P.W. No. 10 from November 1911 till the 30th April 1912, when the records in that calendar case were sent to the record room with the index ex parte in the handwriting of the Bench Clerk and partly in that of the 2nd accused. The story of P.W. No. 10 is that somehow, the genuine bond, Exhibit B, had got off the record, that somehow the forged bond, Exhibit A, had come into the record, that he noticed the forged bond among the records in the beginning of April 1912, (the Case No. 562 of 1911 having been disposed of on 16th April 1912), that the copyist P.W. No. 9 told him at once in the beginning of April 1912 that there was a suspicion about the genuineness of Exhibit A, that the bail bond, Exhibit A, was then found among the records, that he never told the Sub-Magistrate that the suspicious document had somehow got into the records in the place of the genuine bail-bond, that he took away the suspicious bond Exhibit A out of (sic) records and kepi it himself in his
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in connection with the inquiry held in respect of it : In fact, the evidence of this P.W. No. 10 shows that his words cannot be relied upon. He was responsible for the safety of the records. He seems to have negligently allowed somebody to take away the genuine bond, Exhibit B, from the records in February or March 1912 and to substitute the forged bond, Exhibit A. One strange fact in this case is that the 2nd accused, P. W, No. 10, Bench Clerk, P.W. No. 9, copyist, the record keeper, P.W. No. 11, all seem to have known and suspected that some dishonest thing had occurred in connection with the records of this Calender Case No. 562 of 1911, but none of them went to the Sub-Magistrate to mention their suspicions till May 1912. It is said by the 9th and 10th witnesses for the prosecution that in the index paper Exhibit K, prepared by the Bench Clerk, (Kailasam Iyer), the Head Clerk (1st accused) had made a pencil note in the remarks column not among the records' against paper No. 3 which was either the true bail bond, Exhibit B, or the forged bond, Exhibit A. At that time, the Bench Clerk had the forged bond, Exhibit A, with him according to his case (and either the 2nd accused or the Head Clerk must have had the true bond, Exhibit B) and yet the Bench Clerk prepared the index No. 3 as if it was among the records with him to be sent to the record room. The 1st accused (Head Clerk), who according to the prosecution is the principal guilty party, contents himself with making a note not among the records' and then tells the record keeper that he will search for it in his own drawer or some other place. This pencil note is admittedly not now found in the index paper, Exhibit K, in the remarks column, but some other remark in ink is found there and the Bench Clerk, P.W. No. 10, admits that he cannot see any trace of this alleged, pencil note in the remarks column in that index paper now. The record keeper says that he also saw that note but he had not mentioned the fact of this pencil note in his statement, Exhibit P, at the departmental inquiry. The Head Clerk (the 1st accused) seems to be a man of some service and the Sub-Magistrate, P.W. No. 2, says : 'During my connection with the 1st accused I have not heard anything against him : but I have found him slow, though very hard working : I know nothing against his character. I found him satisfactory in money matters.' The Head Clerk frequently reported the 2nd accused for faults : The two accused are on had terms. The 2nd accused also has admitted that the 1st accused has reported about his had work several times. Though it has been held in recent bases that a conviction based upon the evidence of an accomplice or even on the confession of a co-accused is not illegal, it has been also repeatedly and uniformly laid down that it is quite unsafe to convict a man on such testimony unless there is reliable corroborative evidence in material particulars. Mr. Justice Macleod in the recent case Emperor v. Gangapa Kordepa 21 Ind. Cas. 673, 15 Bom.L.R. 975 : 14 Cri.L.J. 625 : 38 B. 156. says that it has been laid down as a rule of practice which deserves all the reverence of law that a conviction based solely on the confession of a co-accused cannot be sustained and that although the testimony of an accomplice may have a little higher probative value than the mere confession of a co-accused, the two might in most cases be treated as in the same footing for all practical purposes. The only tangible thing I can find against the 1st accused is that he initialled the forged bail bond, Exhibit A, along with the Sub-Magistrate, P.W. No. 2 : but he and the Sub-Magistrate sign numerous papers every day as a matter of course and that he failed to note when signing in February 1912 the forged bond Exhibit A that it was fraudulently dated in November 1911 should not, in my opinion, be pushed unduly against him, especially having regard to the place where he put in his initials, that is, at the very bottom of the paper. His attender, the 2nd accused, had easy access to all the papers in his table, and the bail bond forms, though in the Head Clerk's custody, are available for the mere asking for all kinds of clerks, for, according to the Sub-Magistrate, P.W. No. 2, all clerks are allowed to write bail bonds and the Sub-Magistrate's signature is obtanied to bail bonds along with routine papers and he initials as a matter of course. The evidence of the approver shows that he is an utterly unreliable man and I am unable to hold that his evidence has been corroborated in material particulars by any other reliable evidence in this particular case so far as the Head Clerk is concerned. There is this great difficulty also in accepting the evidence of the approver, namely, that the 1st accused, who was an enemy of the 2nd accused according to the prosecution evidence it self from some time before February 1912, was approached by the 2nd accused at the instance of the approver and in order to assist the approver to have the forged bail bond introduced in the records. I am, therefore, of opinion that the evidence against the 1st accused is both insufficient and unreliable and I would acquit him of the charges against him.
5. As regards the 2nd accused, as I said before, he is the man who wrote the forged bail bond, Exhibit A. It was he who wrote the entries 1 to 10 in the index paper, Exhibit K, as if the bail bond, item No. 3, was still among the records. He had possession of the genuine bail bond, Exhibit B, which he must have somehow taken out of the records. His story that the Head Clerk had placed it under some blotting pad and that he, the 2nd accused, stole it from underneath the pad is utterly unworthy of credit. The approver's evidence is fully corroborated so far as the 2nd accused is concerned and I would affirm his conviction and dismiss his Appeal No. 633 of 1913. The 1st accused will be released and set at liberty.
Wallis, J.
6. I agree for the reasons given by my learned brother that the appeal of the 2nd accused must be dismissed. As to the first accused, I feel more hesitation. However, as regards the corroboration relied on by the Sessions Judge, the evidence of the Sub-Magistrate as to what another witness told him the 1st accused had said is mere hearsay and inadmissible. Further, I do not consider it proved by satisfactory evidence that the index of the documents of the case in which the bail bond was given ever contained an entry in the 1st accused's handwriting that the bail bond was missing. The Magistrate did not make as complete an inquiry as he ought immediately after he discovered that the bond was missing, and there is no mention of this entry in some of the early statements where it might be expected. This is the only evidence in writing which weighs much against the 1st accused, and I do not think it is proved by satisfactory evidence : I am willing to give the accused the benefit of the doubt and accordingly allow the appeal, acquit him and order him to be discharged.