JUDGMENT & ORDER : This revisional application is directed against the judgment and order of conviction and sentence dated 17.02.2010, passed by learned Sessions Judge, South Tripura, Udaipur in Criminal Appeal No.22(4) of 2009 whereunder the learned Sessions Judge upheld the judgment and order of conviction and sentence dated 23.09.2009, passed by learned Chief Judicial Magistrate, South Tripura, Udaipur in G.R.Case No.184 of 2006. 2. Learned Chief Judicial Magistrate, pursuant to a police report, taken cognizance of offence punishable under Sections 468 and 471 of IPC against the accused-petitioner Elias Miah and in course of trial framed charges against him under those penal provisions to which the accused-petitioner pleaded not guilty and claimed to be tried. 3. Heard learned Legal Aid counsel, Mr. S. Mahajan for the accused-petitioner and learned P.P., Mr. A. Ghosh for the State respondent. 4. Prosecution case is that, the accused-petitioner at the time of his entry into service as a constable of police, D.A.R., South in the year 1987 had submitted a School Certificate dated 11.02.1982 and on enquiry that School Certificate was found to be not genuine and so, Reserve Inspector of South Tripura District Police, namely, Daridra Bhanjan Debbarma (P.W.6) lodged an FIR on 07.05.2006 before the O.C., R.K. Pur P.S. and accordingly R.K. Pur Case No.180 of 2006, under Sections 468 and 471 of IPC was registered and after investigation charge-sheet was submitted against the accused-petitioner. 5. In course of trial, prosecution examined 11 witnesses and proved some documents and materials. The accused was examined under Section 313, Cr.P.C. and in his turn he adduced no evidence. The simple case of the accused is the denial of the prosecution case that he did not produce forged School Certificate. The trial Court found the accused guilty of committing offence punishable under Section 471 of IPC and sentenced him to suffer R.I. for two years and to pay a fine of Rs.5000/- in default to suffer further R.I. for three months. The accused-petitioner preferred Criminal Appeal No.22(4) of 2009 and by impugned judgment dated 17.02.2010, learned Sessions Judge dismissed the appeal and hence, this revisional application. 6. It is emphatically submitted by learned Lega Aid counsel, Mr. Mahajan that the alleged original fake School Certificate has not been produced and proved by the prosecution. The accused-petitioner preferred Criminal Appeal No.22(4) of 2009 and by impugned judgment dated 17.02.2010, learned Sessions Judge dismissed the appeal and hence, this revisional application. 6. It is emphatically submitted by learned Lega Aid counsel, Mr. Mahajan that the alleged original fake School Certificate has not been produced and proved by the prosecution. A photocopy of the same which was submitted by the informant along with other papers was marked as one of the items of Exbt. 2 series and based on the same, the trial Court as well as the appellate Court wrongly arrived at the conclusion that the charge has been proved. 7. With reference to Section 65 and 66 of the Evidence Act it is submitted by learned Legal Aid counsel, Mr. Mahajan that the procedure prescribed for admitting a secondary evidence has not been followed at all and so, the finding of the trial Court which has been affirmed by the appellate Court is perverse and not tenable in law. He has also been submitted that P.W.6, the informant, in his evidence stated that the original School Certificate submitted by the accused was in the custody of the departmental authority and there is no evidence as to why it was not seized or produced before the Court at the time of trial. No notice under Section 66 of the Evidence Act was given to the accused. Simply I.O. i.e. P.W.9 stated that his previous I.O. requested SP, South to furnish the original documents including the School Certificate but the learned Sessions Judge has observed that notice was issued to the accused whereas no such notice has been exhibited. According to Mr. Mahajan, the accused took a clear stand that the original certificate was with the department and so there was no question for him to produce the School Certificate. 8. The next submission made by learned Legal Aid counsel, Mr. Mahajan is that it is an admitted position that the accused was admitted in Class-I of the A.D. Nagar S.B. School which was later on upgraded and renamed as Belabar H.S. School in the year 1966 and his name has been found in the Admission Register. According to the prosecution, the certificate in question was issued on 11.02.1982 but no Register of merit of the students produced to show that the accused-petitioner did not read upto Class-VIII. According to the prosecution, the certificate in question was issued on 11.02.1982 but no Register of merit of the students produced to show that the accused-petitioner did not read upto Class-VIII. No Register of transfer certificate issued from the school also produced to show that such a School Certificate was not issued in the name of the accused. Simply relying on the statement of P.W.11 the conviction has been recorded whereas the original certificate was not shown to that witness. 9. Learned P.P. has submitted that the original school certificate submitted by the accused was not seized but a photocopy is marked as an item of Exbt.2. It shows that the said certificate was issued on 11.02.1982 and that certificate shows that he left school on 31.12.1981, but there is no record to show that he left the school on 31.12.1981. Exbt. M.O.1 series only shows that he was admitted in the school in the year 1966. Though the original certificate has not been produced, but the oral evidence of P.W.11 coupled with other evidence makes it abundantly clear that the certificate was not genuine. 10. Since it is alleged by learned Legal Aid counsel that the evidence has not been properly appreciated according to law, I have meticulously gone through the evidence on record. FIR lodged by P.W.6 has been marked as Exbt.5. It shows that along with the FIR a copy of the school certificate dated 11.02.1982 and a copy of the letter received from the Directorate of School Education and another copy of letter issued by Headmaster, Belabar H.S. School were enclosed and these copies were marked as Exbt.2 series. 11. In his deposition in examination-in-chief, P.W.6, the informant, made the following statement:- “….. I submitted Attestation Form filled up by the accused while entering the service and photocopy of school certificate and Inquiry report of Director, School Education and also the inquiry report of Headmaster of Belabar H.S. School. This is the ejahar typed written by me and signed by me and it is marked as Exbt.5 as a whole. I know the accused Ilias Miah who is present today in the court. Witness identified the accused in the dock.” In cross-examination he made the following statement:- “The original School Certificate is kept in the custody of the authority. I did not see the original School Certificate of Ilias Miah. I know the accused Ilias Miah who is present today in the court. Witness identified the accused in the dock.” In cross-examination he made the following statement:- “The original School Certificate is kept in the custody of the authority. I did not see the original School Certificate of Ilias Miah. I did not send the original certificate for investigation.” 12. The above statement of P.W.6 who is the Reserve Officer i.e. the custodian of the documents of the police constable such as the accused-petitioner, makes it abundantly clear that along with the FIR he submitted only photocopies and the original was kept in the custody of the authority. 13. The case was investigated by several Investigating Officers. P.W.9 is one of those I.O’s. S.I., N.C. Dey was the first I.O. who died before trial commenced. P.W.9 in his examination-in-chief made the following statement :- “…. On 16.05.2006 S.I. N.C. Dey made a prayer to S.P. South to furnish some original documents of the accused from his service book. The required documents by the I.O. N.C. Dey were original School Certificate of accused, copy of original option submitted by Md. Ilias Miah @ Kanu Miah, original letter issued by Branch Officer, Govt. of Tripura, Directorate of School Edn., original letter issued by HM, Belabhar High School, A.D.Nagar. I.O. N.C. Dey issued a letter to the accused as per direction of S.P., South asking the accused to submit the original school certificate. Thereafter the I.O. was transferred and he handed over the case docket to the O/C of the P.S.” 14. The above statement of P.W.9 is quite confusing and contradictory. It shows that S.I., N.C. Dey on 16.05.2006 wrote letter to the S.P. to furnish the original documents of the accused from his service book and one of the required documents were original school certificate of accused. In the subsequent line he again stated that I.O., N.C. Dey issued notice to the accused to submit the original school certificate but nothing stated as to what reply was received from the SP in response to letter dated 16.5.2006 and further no copy of the alleged notice, issued by I.O., S.I. N.C.Dey, proved by P.W.9. 15. In the subsequent line he again stated that I.O., N.C. Dey issued notice to the accused to submit the original school certificate but nothing stated as to what reply was received from the SP in response to letter dated 16.5.2006 and further no copy of the alleged notice, issued by I.O., S.I. N.C.Dey, proved by P.W.9. 15. While P.W.6 admitted that the original school certificate was kept in the custody of the authority, I do not understand what sort of investigation was conducted by the I.O. since the original alleged fake school certificate has not been seized. 16. Learned Chief Judicial Magistrate and learned Sessions Judge committed great mistake considering the photocopy of the alleged school certificate. A photocopy being a secondary evidence may be proved when the original is shown to be in the possession of the person against whom the document is sought to be proved. P.W.6, the Reserve Officer made clear statement that the original was lying with the department though normally it was not supposed to be so. But while the prosecution witness who was responsible for keeping the document himself stated that the impugned certificate was lying with the department i.e. the authority there was no question of sending a notice to the accused. P.W.9 no doubt stated that S.I., N.C.Dey issued a letter to the accused but no such document has been proved. Learned Sessions Judge was absolutely wrong in arriving at a finding that the accused was given notice and so the photocopy was admissible. The provision of Sections 65 and 66 have been misread by the courts below and so the finding is not tenable in law. 17. It is an admitted position that the accused was admitted in the A.D.Nagar S.B. School which was later on upgraded and renamed as Belabar H.S. School. His name was entered in Sl.No.503 of the Register of 1966. That much admitted position reveals from the statement of P.W.1, the Headmaster of the School. According to the prosecution, the certificate was issued on 11.02.1982 and at that time P.W.11 was the Headmaster of the School. Prosecution heavily relied on the evidence of P.W.11. Let me reproduce here statement of P.W.11 made in examination-in chief as well as in cross examination:- “I was posted in A.D.Nagar S.B. school from 1979 to September, 1986 as Head-master. I was transferred from North Takarjala SB School to A.D. Nagar S.B.School. Prosecution heavily relied on the evidence of P.W.11. Let me reproduce here statement of P.W.11 made in examination-in chief as well as in cross examination:- “I was posted in A.D.Nagar S.B. school from 1979 to September, 1986 as Head-master. I was transferred from North Takarjala SB School to A.D. Nagar S.B.School. Thereafter, I was transferred to South Anandanagar S.B. School from A.D. Nagar S.B. School. During my tenure as H.M. at A.D.Nagar S.B. School there was no student by name Elias Miah. During my tenure I also did not issue any transfer certificate in the name of Eliash Miah. I shall be able to identify my signature of that time and also my hand writing. The certificate filed with the case record was not issued by me dated 11/2/1982. I also do not show Eliash Miah. One Eliash Miah visited my house at Jogendranagar three times and requested me not to give evidence against him and the said accused who is present in the Court most probably visited my house. Cross examination We issue original certificates not photocopy. The certificate filed in the case record is not original, but photocopy. In one sense from my memory I have stated that there was no student namely Eliash Miah during my tenure. The witness volunteers that there was no muslim community student in the school during my tenure. Specifically it is not possible to say how many students of what community was there in the school. I have no knowledge whether there was a muslim student named Fazlul Rahaman in the year 1982. It is not a fact that Eliash Miah was student of that school during that tenure. A.D.Nagar S.B. school has been renamed as Belabar H.S. school. I gave statement to the IO by not perusing the school records. After my retirement I did not go through the school records. T.C. is issued by keeping counter foil in the office. It is not possible to say to whom T.C. was issued without perusing the counter-foil. It is not a fact that Eliash Miah had never visited my house at Jogendranagar. It is a fact that without seeing the original it is not possible to say on the basis of the zerox copy that it was issued by me.” 18. It is not possible to say to whom T.C. was issued without perusing the counter-foil. It is not a fact that Eliash Miah had never visited my house at Jogendranagar. It is a fact that without seeing the original it is not possible to say on the basis of the zerox copy that it was issued by me.” 18. The above statement of the witness gives an inference that he did not know the accused-petitioner and there was no such student at the relevant point of time when he was Headmaster of the School from 1979 to 1986. Since the certificate was issued on 11.02.1982 it must be issued by him but the certificate itself was not produced before him for his examination as to whether it was issued by him or not. His mere statement that the accused-petitioner was not a student cannot sustain since the Admission Register shows that the accused-petitioner was a student of that institution. In his cross-examination it appears that it was not possible on his part to make any statement on seeing the photocopy. So, the evidence of P.W.11 though apparently would appear that the accused was not a student of that School at the time when he was Headmaster may be correct since the accused might have left the School before he assumed the charge of Headmaster in the year 1979. If the accused was admitted in Class-I in 1966 and he read upto Class-VIII, P.W.11 might not have seen him as a student. The crucial question is whether the certificate was issued by P.W.11 or not. The photocopy which was on record, the witness stated that it was not issued by him. Since the original has not been produced, the witness in cross examination stated that without seeing the original it was not possible on his part but on seeing the Xerox copy as to whether it was issued by him or not. So, no inference beyond reasonable doubt can be drawn on the basis of the evidence of P.W.11 that the original school certificate submitted by the accused was a fake one. 19. It is not understood why the original certificate was not produced. So, no inference beyond reasonable doubt can be drawn on the basis of the evidence of P.W.11 that the original school certificate submitted by the accused was a fake one. 19. It is not understood why the original certificate was not produced. In the absence of the production of the original certificate and in the absence of clear proof of the photocopy as required under Sections 65 and 66 of the Evidence Act, it cannot be said that the school certificate submitted by the accused at the time of his entry in the service was absolutely fake. Some impression from the evidence on record is available that the school certificate produced by the accused might not be genuine but unless there is clear proof, a criminal Court cannot take a decision of punishment under IPC. Such evidence as produced by the prosecution may be sufficient for a departmental authority to departmentally proceed against the accused but it can in no way be held as sufficient to prove the charge beyond reasonable doubt. Burden always lies on the prosecution to prove the charge. Onus may be shifted but it is only after the burden is discharged by the prosecution. 20. The prosecution has failed to produce the alleged original fake school certificate though P.W.6 admitted that it was in the custody of the authority. If it was in the custody of the accused, in that case for proving the photocopy the legal procedure as contemplated in the Evidence Act has not been followed. Therefore, the judgment and order of conviction and sentence cannot sustain and is liable to be interfered. 21. Accordingly, the judgment and order of conviction and sentence dated 23.09.2009, passed by learned Chief Judicial Magistrate, South Tripura, Udaipur in G.R. Case No.184 of 2006 which was affirmed by the learned Sessions Judge in Criminal Appeal No.22(4) of 2009 is interfered and set aside. 22. The revisional application stands disposed of. 23. Send back the L.C. records along with a copy of this judgment.