JUDGMENT 1. The Appellants in this case have been convicted under secs. 232 and 235 of the Indian Penal Code, for counterfeiting the King's coin and for being in possession of instruments or material for the purpose of using the same for counterfeiting coin, and have been sentenced by the Learned Sessions Judge of Shahabad to ten years' rigorous imprisonment for each offence, the sentences to run concurrently. The assessors disagreed with the learned Judge in the conclusion which was to be drawn from the evidence, and were of opinion that the case was not made out against the accused persons. The whole case turns on a search which was made at the premises of the accused Muni Sonar, on the night of the 1st of June 1904. There were present at that search, Mr. Schurr, the Superintendent of Police, the Assistant Superintendent of Police, one Dwarika Prasad Singh, the Sub-Inspector of the Arrah Thana, Hashmat Ali, an Inspector on special duty, and twenty-five constables. There were also a man, named Darbari, who appears to have been the informer in the case, and a man named Sita, a pedlar, who appears to have been employed to test the accuracy of Darbari's information. Besides these persons, two independent witnesses were brought, namely, the Station Master and a man from the Post Office. All these persons were present at the search, and it is alleged by the prosecution that at that search there were found in the possession of the Appellants-, (1) a parcel of 34 plain metal disco, suitable for being made into coins, which are alleged to have been found by Sita, in a gamcha; (2) another parcel of 75 metal discs suitable for the same purpose alleged to have been found by Darhari in a gamacha; (3) another parcel of 58 small discs in a small tin box found in a shelf by one of the constables : (4) a die appropriated for the purpose of striking rupees, which found by Fahim constable in the ashes of a brazier, and, lastly, an instrument which has not been produced, which the prosecution contended, was used for the purpose of melting counterfeit rupees. 2. On behalf of the Appellants, it is contended that, there are such discrepancies in the evidence as to what took place at the search, that it would be quite unsafe to convict the Appellants. 2. On behalf of the Appellants, it is contended that, there are such discrepancies in the evidence as to what took place at the search, that it would be quite unsafe to convict the Appellants. It is suggested that some persons, probably and Darbari, who had an interest in showing that the information given by Darbari was true, had brought these things to the house of the Appellants in order that they might be there found and the Appellants convicted on the information which Darbari had given. 3. Now, before dealing with the evidence and the discrepancies which are relied upon by the Appellants, there is one matter which, we think, it is our duty to notice. It is a significant fact that the prosecution at the Sessions Court declined to call Mr. Schurr. That gentleman was called by the Court They also declined to call the Assistant Superintendent of Police, and his account of what he observe 1 has not been given. The reason which induced the proseccution apparently to abstain from calling the Superintendent of Police was that what be had observed led him to Form an opinion that the search was not a genuine one and that the articles were not really discovered in the way in which the Police witnesses for the prosecution alleged. 4. Now, the first thing, we desire to observe is this: that an opinion Formed by Mr. Schurr or by any other witness was not evidence in the case. All Mr. Schurr could do was to state what he observed and he was bound to confine his evidence to Facts. The same observation applies to the Assistant Superintendent. In our opinion, the presecution was in duty bound to call the persons who were present at the search, unless they were of opinion that those persons would misrepresent facts and would misstate what had happened, It is not suggested by the learned Deputy Legal Remembrancer that Mr. Schurr would dishonestly misstate what happened at the search. It is suggested that the opinion he formed shows an unconscious bias on his part and that, therefore, the prosecution did not call him. Rearing in mind that all that the witness was called upon was to state what he saw and not what he thought, think that the reasons given for not calling Mr. It is suggested that the opinion he formed shows an unconscious bias on his part and that, therefore, the prosecution did not call him. Rearing in mind that all that the witness was called upon was to state what he saw and not what he thought, think that the reasons given for not calling Mr. Sehurr is quite inadequate and that he and the Assistant; Superintendent ought certainly to have been called by the Crown at the Sessions trial. 5. We now come to examine the contradictions which are relied on by the Appellants as showing that the conviction cannot safely be had. The first contradiction relates to the part which the witness Sita took in the proceeding Sita himself says that he went with the party, that he asked "the Shahib (i.e., Mr. Schurr) to wait n little but the Shahib refused to do so and went on." Sita says " I was carrying a lantern and then the Deputy Superintendent of Police and the Arrah Daroga and the Shahib (Mr. Schorr) entered the house where they (the Appellants) work," thus stating as explicitly as possible that Sita did not arrive at the house before the party who came to make the search : but when the account given by the other witnesses is examined, we find when Mr Schurr entered the house, the first thing that he observed was that Sita was being hold there by one of his own men. Dwarka Prasad, as far as he goes, supports Mr. Schorr's evidence in saying that Sita did not accompany them (the party) from the station, but that he first saw him in muni's house The two independent witnesses the man from the Post Office and the Station Master, as far as they go, corroborate the account given by Mr. Schurr We have it, therefore, that the three witnesses on whom, as a general rule, the most reliance could be placed, namely, Mr. Schurr, a Superintendent of Police of 27 years' experience, and the two independent witnesses who are brought on the spot--because they have no possible interest in misrepresenting anything--all agree in supporting the case that Sita did not accompany them to the house of Muni, but that he was already there when they arrived. This contradicts Sita himself and some of the other Police witnesses. This contradicts Sita himself and some of the other Police witnesses. The point is an important one and it is important for this reason : If Sita had accompanied the Police to Muni's house, it would have been impossible for him to have introduced the articles to be found just before search : if on the other hand he went to Muni's house some little time before the searchers arrived there it would be perfectly possible for him to place the articles, which were found, in such a position that they could have been found on search. Now, having in view the fact that the persons', on whom the most reliance can be placed, all agreed in saying that Sita was already there when they arrived, we think that that account is the correct, one. It is pointed out by the learned Deputy Legal Remembrancer that Sita was a man who was not known to Mr. Schurr and that therefore Mr. Schurr might be mistaken. But Mr. Schurr points out that when he first SAW HIM, his atention was attracted by the peculiarity in his costume and that therefore he had particular reason to notice him. 6. Then we come to the contrdictions in the account that is given of the actual discovery of the articles which were found sita says that when they (the party) entered the men the accused and some, others--stood up, that he caught Muni by the wrist, he saw some thing in his gamcha which he seized and found that they were discs; and these, he says, he pointed out to Mr. Schurr who then directed that they should be counted. Hasmat All's description is that Sita was behind, that Muni was holding something in his (sic) and than Sita drew the attention of Mr. Schurr saying " See Shahib" and showed him what there was. Then, Darbari says that Muni tried to throw something away and that the discs were found. Dwarka Prasad describes "Sita held out a gamcha in his hands in which there were some silver discs and said that these had been in Muni's possession." When one conies to the evidence of Mr. Schurr, the Station Master and the man from the Post Office, the significant thing that strikes one is that not a single one of these three witnesses saw the gamcha taken from the person of Muni. Schurr, the Station Master and the man from the Post Office, the significant thing that strikes one is that not a single one of these three witnesses saw the gamcha taken from the person of Muni. And in view of the discrepancies and in view of the fact that none of the more reliable witnesses saw these articles taken from Muni, we feel considerable doubt as to whether the gamcha containing these discs was in Muni's possession. The description given by Mr. Schurr is that he saw Sita ladling the coins out of this gamcha and this description differs from that which is given by the other witnesses. There could be no mistake about it, because it would be a remark able matter if the coins were handed out of the gamcha and it would have attracted Mr. Schurr's attention. 7. Then, with regard to the discovery of the next exhibit, namely, the 75 plain discs, they are stated to have been found by Jowala Prasad and to have been partly concealed behind the thigh of the other Appellant Goona. Jowala says that the 75 discs were in a gamcha which was under Goona's thigh, the money was touching the thigh. This is contradicted by the evidence of Mr. Schurr who says that he saw Darbari lift some sacking and produce the 75 discs. There again the contradiction is very material, because it would not be difficult for the person who wished so to do, to put this parcel of discs under a piece of sacking, whereas to put a parcel touching the thigh of Goona could not be done without drawing his attention to it. 8. Then comes the evidence as to the finding of the tin box with the small discs. There is also a contradiction as to whether Darbari pointed out the place or not. Hardeo, the constable, says that he did. Darbari says that he was outside all the time. This exhibit (No. 3) is apparently the only article which, the independent witnesses say, was found there. They say that they saw it brought down from the shelf. There is also a contradiction as to whether Darbari pointed out the place or not. Hardeo, the constable, says that he did. Darbari says that he was outside all the time. This exhibit (No. 3) is apparently the only article which, the independent witnesses say, was found there. They say that they saw it brought down from the shelf. With regard to the discs in it, we are bound to say that they are not discs which could be made into rupees, and it is not quite clear as to whether they are not discs which might have been made for the perfectly legitimate purpose of making an ornament. 9. Then, there is the discovery of the die. Of course, if persons were discovered in possession of a die for the purpose of stamping rupees with, as in this case, a counterfeit-rupee in the die, it would be a very strong piece of evidence against them. Cut here again the discovery of the die is attended by a very singular circumstance, It is said to have been found in a brazier apparently concealed by the cinders in it. Put the singular circumstance is that before that die was discovered the brazier in question had been entirely emptied. Mr. Schurr says that it was turned upside down and it was completely emptied. The other witnesses say that it was half emptied. If it was turned upside down, it is hard to imagine that such a die as this could have been amongst the cinders without being discovered. When Mr. Schurr asked where the die was produced from, no answer was given him, and so at the time his attention was not drawn to the improbability of the find in brazier; but it was only afterwards when he had come to know where it was discovered that this circumstance struck him. 10. Then comes the discovery of what has been called the milling instrument. There is the rather curious circumstance that the place where this is to be found is pointed out; a man searches in it with his fingers and finds nothing; then one Jung Bahadur is directed to put his bayonet into the hole and he finds this article. The discovery in this way seems to us to be suspicious. There is the rather curious circumstance that the place where this is to be found is pointed out; a man searches in it with his fingers and finds nothing; then one Jung Bahadur is directed to put his bayonet into the hole and he finds this article. The discovery in this way seems to us to be suspicious. With regard to the nature of the article, we are by no means satisfied that this is an article which could be used for milling purposes. The Judge in the Court below does not seem to think that the article could be used for the purpose : it has not been produced before us and we are not in a position to form our opinion on that question. 11. The result, therefore, is that the circumstances attending the finding of the various articles, relied on by the prosecution, are in every case suspicious and the independent witnesses who are brought to the search as independent witnesses, all, as far as they go, agree with Mr. Schurr, who in the Court below appears to have been invited to state the opinion that he formed as to the genuineness of the search and to have stated that in his opinion the search was not a genuine one but that evidence had been fabricated. 12. It has been argued by the learned Deputy Legal Remembrancer that inasmuch as Mr. Schurr's suspicion was not aroused on the production of each individual article, we ought to regard the subsequent opinion which he was invited to express as one founded on no sufficient ground. In our opinion Mr. Schurr's account is exactly what we should expect in the case of a man who had no reason to suspect that he would be deceived. He would accept without, suspicion the finding of this or that article and it would be only afterwards, when thinking the whole occurrence over, that it would strike him that one incident was suspicious, and he then would critically examine the other incidents of the search : and as he found one incident after another suspicious in itself, his mind would be led to the conclusion that the whole story was a fabrication, and that the articles were not discovered as the informers intended them to be discovered. But, as we have observed, there is no reason why Mr. But, as we have observed, there is no reason why Mr. Schurr should have been asked to state his reasons; his only duty was to state the facts that he observed. We have not the least reason to doubt that Mr. Schurr stated those facts in a perfectly straightforward way. With regard to the two persons who attended the search as independent witnesses we are bound to point out that if their evidence is rejected because it disagrees with that of the witnesses who are not regarded as independent, the whole ground for having independent persons present at the search is cut away. 13. There is one piece of evidence which might have been produced and which would have bad some bearing, at any rate, on the case, which the prosecution have failed to produce. They have shown us the die with what we presume to be a counterfeit rupee in it, they have shown us certain number of discs which are of the size of a rupee, and might, possibly, for ought we know, be stamped in the die so as to present the appearance of a rupee, but they have not shown whether the metal of the counterfeit-rupee in the die is of the same alloy --if it be alloy--as the metal in the discs, and, that is a piece of evidence which one would have expected the prosecution to produce, if their case was true, because it would lead to the inference that the metal discs were intended to be stamped in the die and made into the counterfeit-rupees. However, that piece of evidence the prosecution omitted to produce. Another circumstance which strikes one as a singular circumstance is that in the search no counterfeit rupees other than the one in the die were produced. If the Police had really made raid on a nest of coiners, one would expect that there should have been found in their possession some counterfeit rupees turned out of the die which was found on the premises. 14. The result, therefore, is that this appeal must be allowed. If the Police had really made raid on a nest of coiners, one would expect that there should have been found in their possession some counterfeit rupees turned out of the die which was found on the premises. 14. The result, therefore, is that this appeal must be allowed. The contradictions in the evidence and the circumstances of suspicion which surround the finding of the different articles, lead us to the conclusion that a conviction would not be safe; and we are impressed by the circumstances that the evidence given by the witnesses, who would, in the ordinary course of things, have the greatest weight with the Court, contradicts that of the informers and the Police, and as far as it goes supports the doubts which have been thrown on the case by the Appellants. We, therefore, set aside the conviction of and the sentence passed on the Appellants and direct that they be released.