Crl.A. 69/2009 BEFORE THE HON’BLE MR. JUSTICE P.K. MUSAHARY JUDGMENT AND ORDER Heard Mr. A. Rashid, learned counsel for the accused-appellant a nd also heard Mr. K. Munior, learned Addl. Public Prosecutor, Assam. 2. Being dissatisfied with and aggrieved by the judgment and order dated 30-03- 2009 passed by the learned Addl. Sessions Judge (FTC), Darrang, Mangaldoi, in Se ssion Case No. 53(DM)/07, convicting and sentencing him to undergo R.I. for 7 ye ars with fine of Rs. 10,000/- in default, to undergo further R.I. for 1 year und er Section 489 (C) IPC, the appellant has filed this appeal under Section 374 (2 ) of the Cr.P.C. 3. Adverting to prosecution case, as unfolded from the FIR, it may be brief ly stated that on 31-08-2005, the then ASI of Mangaldoi Police Station, on recei pt of a secret information, proceeded along with another police personnel namely , Shri Mahesh Nath accompanied by a section CRPF personnel and conducted a searc h operation at about 11.00 A.M. in the Bus named as Siva Sundar bearing registra tion No. AS-13/8073 at Tamulipara of Mangaldoi Town. The said bus was the accuse d-appellant was found sitting on a seat of the bus and beneath the seat of the a ccused-appellant, a plastic bag containing 45 Nos. of fake currency notes of 500 denominations wrapped with a polithyene concealed under husk along with one sus pected rhino horn was recovered and seized from his custody. In this connection an FIR was filed which was received and registered as Mangaldoi P.S. Case No. 24 7/2005 under Sections 489(A)/489(C) IPC read with Section 51 of the Wild Life Pr otection Act. During investigation, the seized currency notes an the rhino horn were sent for forensic examination. It was returned with positive report in resp ect of the counterfeit currency notes and negative report in respect of rhino ho rn. The police, on completion of investigation, submitted charge sheet against t he accused-appellant under Section 489(A)/489(C) IPC. 4. The case was committed by the learned Chief Judicial Magistrate, Darrang , Mangaldoi to the Court of Sessions Judge, Darrang, Mangaldoi who made over the case to the learned Court of Addl. Sessions Judge (FTC) for trial and disposal whereupon the charge was framed against the accused-appellant under Section 489 (C) of the IPC. The said charge being read over and explained, the accused-appel lant pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 07 witnesses including the complaina nt, Investigating officer and Forensic expert. The accused-appellant was examine d under Section 313 Cr.P.C. He expressed his desire to examine 01 witness named Sahab Uddin in his defence but ultimately he did not examine him. PWs-1 and 7 ar e police officials, who were detailed for search in the bus. According to them t hey intercepted the aforesaid bus and got into the bus and checked the passenger s one by one and made them to get down from the bus. According to PW-1, Budhen B hagbati, a plastic bag placed on a box was found ’on seat No. 1’ whereupon the a ccused-appellant, Amir Hussain was sitting. A Rhino horn and 46 Nos. of fake cur rency notes of Rs. 500 denominations were found inside the husk from the said ba g and the same were seized by him. 6. PW-7, Shri Mahesh Nath, who was the I.O. of the case, deposed in the sam e manner but he stated that the said bag was found ’under the seat’ on which the accused Amir Hussain was sitting. As I.O., PW-7 sent the seized materials for F SL examination. He examined some witnesses including the driver and conductor of the said vehicle/bus. PW-5 Abdul Selam, driver of the bus, in his deposition, s tated that after the bus was intercepted at about 11.00 A.M. and the police star ted checking the passengers after alighting them from the bus. In cross-examinat ion, he stated that he was also alighted from the bus and there was not a single person inside the bus. Then, the police got into the bus along with handyman an d brought down the seized materials from the bus. According to him, the seized m aterials were recovered from the ’beneath of the seat’ but he could not say who was sitting on the seal below which the materials were recovered. His deposition before the Court to the effect that the seized currency notes were recovered fr om his bus is as per the instruction of the prosecution. Md. Rafiq Ali, the cond uctor of the bus was examined as PW-6, who was declared as a hostile witness. He corroborated the evidence of PW-5. In cross-examination by defence counsel, thi s witness clearly stated that after the bus was stopped, all the passengers were alighted and he also got down from the bus. The police got inside the bus with the handyman and started checking but he could not say from whose possession the said fake currency notes and Rhino horn were recovered. 7. Both the police officials PWs-1 and 7 including the PWs-5 and 6, driver and conductor respectively, they deposed that it was only the handyman of the bu s who was taken inside the bus for searching the bus and the recovered seized ma terials were brought down by him but, surprisingly, the said handyman was not ci ted as witness by the police while submitting the charge sheet, although, he was the eyewitness to the recovery of the seized materials by the police. Why this important material witness was not cited and examined as witness during trial is known to the prosecution only. There is no explanation from the prosecution as to why the said handyman was not cited and examined as witness to prove its case . Even during evidence of the prosecution witnesses, no application was filed by the prosecution to summon the said handyman and examine him as a witness. The d river and the conductor of the bus were seizure witnesses only and they have sig ned on the seizure list, Exhibit-01. They are not eyewitnesses to the fact of ac tual recovery of the seized materials. 8. There was serious contradictions in the statements of PW-1, Police ASI, who accompanied the I.O., inasmuch as in his examination-in-chief, if the releva nt portion of his deposition in Assamese is rendered into English, it would be l ike this. Examination-in-chief. & & & & & & & & & & &. & &.. & & & & & & & &.. we searched the passenge rs of the vehicle. We searched them one by one inside the vehicle. We alighted t he passengers. While searching we recovered a plastic bag on a box from seat No. 1 & &.. Accused Amir Hussain was sitting on seat No. 1 & & & & cross examination & & & &. After alighting the passengers were kept under the custody of the CRPF. hen I went inside the bus. The handyman was with us during search inside the bus . The seized materials were found from bunker of the bus 9. It is unbelievable that a police official could make such contradictory statements before the Court. Such contradiction renders the evidence unworthy an d unreliable for conviction of an accused-person. PW-7, I.O. of the case has als o contradicted his own statements in examination-in-chief while he was cross-exa mined by the defence counsel. His statement in examination-in-chief and cross hi s Assamese if rendered into English would be like this. Examination-in-chief & & &. While checking the bus, we found a bag from accused A ir Hussain. Amir Hussain was sitting on the seat of the bus. The bag was found u nder the seat. Inside the bag, we found 46 Nos. of fake currency notes of 500 de nominations and a Rhino horn like material. I seized the said materials. There w ere 30/40 passengers including the accused. In Cross Examination- There were 30/40 passengers including the accused in the bus. We could not asce rtain form the version of the accused as from whom the seized articles of curren cy notes and Rhino horn found in the bag were brought. There is a contradiction in the statements about the place from which the said b ag containing the fake currency notes and the rhino horn were recovered as this witness stated that the said bag containing the seized materials was found under the seat on which, the accused-person was sitting, is altogether different and in contradiction to the evidence of PW-1, who was also contradicting his own sta tement as he said that it was found on a box placed at seat No. 1. In his examin ation-in-chief, he again stated that it was found from the bunker of the bus. 10. The learned trial Court considered the aforesaid evidence of the PWs 1 a nd 7 as sufficient for conviction of the accused-appellant. There is, of course, no denial to the fact that the seized materials were found from inside the bus but the main fact, as to exactly from which place of the bus the seized material s were found, has not been proved. None of the passengers of the said bus was al so cited and examined as witness. It was, otherwise, possible from amongst the p assengers to point or identify the accused-person or any of the passengers invol ved in carrying the plastic bag containing the seized materials. No evidence was led by the prosecution that the aforesaid plastic bag carried by the accused an d it was kept by him at a particular place inside the bus. The conductor of the bus, PW-6 did not make any statement that he saw the accused carrying the plasti c bag. The prosecution could have examined the handyman of the bus who was prese nt inside the bus along with the police officials while searching the vehicle/bu s and recovered the plastic bag in his presence. This handyman was the best pers on to depose whether during search, the accused-person was found sitting on a pa rticular seat with the aforesaid plastic bag under the seat on which he was sitt ing or the same was found on the bunker or placed on a box on seat No. 1. Except the statement of PWs-1 & 7, there is no evidence on record that the accused-app ellant alone remained inside the bus although all the passengers had alighted. 11. Therefore, it is not proved that the accused-appellant alone was remaini ng inside the bus. If this fact was proved by the prosecution, some adverse pres umption could have been drawn against the accused-appellant. Even accepting, as claimed by the prosecution, that the accused-appellant was sitting alone on a pa rticular seat of the bus, the accused could not be held guilty and convicted for possessing the seized materials unless cogent and reliable evidence is led that the seized materials belonged to him. The learned trial Court failed to appreci ate the evidence of PWs-1 and 7, both the police officials, who have contradicte d each other on the material statement in regard to place of recovery of the sei zed materials from the bus and convicted the accused-appellant on presumption on ly. The charge against the accused appellant has not been proved beyond doubt fa r less beyond all shades of reasonable doubt. Here is a case where doubt has rem ained to be removed by sufficient evidence regarding sitting of the accused on a particular seat of the vehicle alone after all the passengers were alighted, re covery of the seized materials containing a plastic bag under the seat on which he was sitting, and also the possession of the seized materials by him. In such situation where the witnesses are giving different versions and there is nothing further to connect the accused with the alleged offence, the accused should get the benefit of doubt and it is a good ground for acquitting him. Law has been s ettled so by Supreme Court in Periyasami Vs. State of Madras, reported in AIR 19 67 SC 1027, and in Assistant Collector of Central Excise Vs. Syed Mohammed, repo rted in AIR 1983 SC 168. It is the settled law that the onus of proving the fact s essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt a bout the guilt of the accused and an accused cannot be convicted of an offence o n the basis of conjectures or suspicious. 12. It is also a settled position of law that if a reasonable doubt arises i n the mind of the court after taking into consideration the entire materials bef ore it regarding the complicity of the accused the benefit of such doubt should be given to the accused. Further more the Apex Court in Sevaka Perumal Vs. State of Tamil Nadu, reported in AIR 1991 SC 1463 held that the doctrine of benefit o f doubt only would operate in proof of the commission of offence and if there is any reasonable doubt, not the doubt of vacillating mind of a judge, the accused is entitled to that benefit and be acquitted. 13. I have no doubt in my mind and hesitation to say that the prosecution fa iled to prove its case beyond reasonable double, yet the learned trial Court con victed and sentenced the accused-appellant on mis-appreciation of evidence on re cords, particularly, the evidence of PWs-1 and 7 who have contradicted each othe r and even in their own evidence in examination-in-chief and cross examination. The said evidence being not sufficient to bring home the charge against the accu sed-appellant, he is entitled to get the benefit of doubt and set aside the impu gned conviction and sentence. 14. Accordingly, the impugned conviction and sentence, passed on 30-03-2009 by the learned Addl. Sessions Judge (FTC), Darrang, Mangaldoi in Session Case No . 53 (DM)/07, are set aside. The accused-appellant is acquitted on benefit of do ubt. 15. The accused-appellant be set at liberty forthwith, if his further detent ion is not required in connection with any other case. Bail bond stands discharg ed. 16. The appeal stands allowed 17. Send down the LCR to the court below forthwith.