Non-compliance with Section 342, Criminal P.C., does not vitiate the proceedings unless there has been a failure of justice.

1. This is an appeal by the Provincial Government against the acquittal of the accused Gomaji whom the learned Magistrate tried upon a complaint made under Section 476, Criminal P.C., by Mr. R.D. Doongajir Subordinate Judge, 2nd Class, Ramtek, for fabrication of the document (Ex. P-2) which the accused as plaintiff had produced in his Court on 14th December 1989 in Civil Suit No. 98A of 1939 decided on 18th April 1940. In that suit, in which the accused was the plaintiff, he claimed title to certain property as the adopted son of one Soma against the latter's daughter Mt. Bani (P.W. 1) and widow Mt. Neti (D.W. 1), both of whom were joined as defendants. The document (EX. P-2) referred to above, which is in English, is the Primary School Certificate dated 10th July 1914 certifying that the accused had passed the Primary examination, and as it was when produced it professed to make out that he was the son of Soma. The civil Court held that the accused: was not the adopted son of Soma and suspected that the certificate (Ex. P-2) had been tampered with by scratching out the name of the accused's father and writing there the name Soma. The suit of the accused was thus dismissed, whereupon he preferred an appeal (civil Appeal No. 83A of 1940) in the Court of the Additional District Judge, Nagpur, who it appears sent for more particulars from the Education Department and got the communication (Ex. P-1) and the accused not having pressed the appeal further, it was dismissed.

2. The learned Magistrate, who has acquitted the accused, has held that the document is not proved to have been fabricated and that at any rate it is not proved to have been fabricated by the accused and that an offence under Section 193, Penal Code, was not made out. The learned Magistrate then proceeded to observe that if there was any offence committed by the accused it might be one under Section 196, Penal Code or Section 471, Penal Code, but that the complaint being only for an offence under Section 193 he had no jurisdiction to take cognizance of any other offences.

3. We do not agree with the view of the learned Magistrate that even the fact of alteration has not been established, as he held. The certificate discloses that it originally bore some name as that of the accused's father, that that name was scored out and that instead the name Soma has been put in. The District Inspector of Schools, who was P.W. 2, gave evidence and proved that original result sheet mentioned the accused's father's name as Goma and he generally supported the contents of the memo (Ex. P-1) which had been sent to the Additional District Judge, Nagpur, by the Education Department. We do not accept any of the theories suggested by the learned Magistrate as reasonable and we hold that the Education Department could have had no concern whatsoever with the alteration to which the certificate has been subjected. We have thus no hesitation in holding that the certificate has been tampered with by inserting therein the name of the accused's father as Soma.

4. The learned Magistrate is of course right in his view that the accused is not proved to have himself made the tampering and could not be held to have committed the offence punishable under Section 193, Penal Code. It is probably true that the accused does not know English but that does not mean that he could not commit the offence of abetment if he got some one to fabricate the document for him and it is reasonably clear that this is what happened.

5. The learned Counsel for the accused suggested, as the learned Magistrate also did, the possibility of Soma himself having brought about the change in the accused's father's name in the certificate in order that it might serve as evidence of accused's adoption. It is not easy to believe that Soma would have thought of getting ready documentary evidence of that sort and would not have hit directly on the idea of an adoption deed. The possibility of Mt. Neti having caused the certifica