Judgment :- 1. These appeals have been preferred by accused 1 to 3 in Sessions Case No. 63 of 1958 on the file of the Sessions Judge, Trivandrum. Criminal Appeal No. 21 is by the first accused, No. 22 by the third accused and No. 46 by the second accused. All the three were convicted under S.232,235 and 243 of the Indian Penal Code. The first accused was sentenced to undergo simple imprisonment for three years for the offence under S.232 and simple imprisonment for one year under S.243. The second and third accused were sentenced to undergo rigorous imprisonment for five years for the offence under S.232 and two years for the offence under S.243. No sentence was awarded for the offence under S.235, and all the sentences were directed to run concurrently. 2. The case for the Prosecution may be briefly stated: Accused 2 and 3 are the sons of the first accused. Pw. 9, the Sub-Inspector of Police, Chalai, Trivandrum, and Shri Sarangadharan, the Grime Branch Sub-Inspector of Trivandrum, were in the All India Exhibition grounds at Pazhavangadi at about 11-45 P. M. on 13-2-1958. While they were there they received information that the accused were counterfeiting coins at their residence at Bheemapally, within the city of Trivandrum. They immediately proceeded to the place in a van (or jeep) accompanied by three constables attached to the Chalai Police Station. On the way they met Pw. 2 in front of the mosque at Bheemapally and he was asked to get into the van. They proceeded to the house of the first accused and stopped the van in front of the first accused's house. Pw.1 and one Peer Muhamed were seen there. Pw. 9 told them about the object of their visit and asked them to accompany them to the house of the accused. They went into the court-yard and peeped through the open window of the south-western room of the house when they saw accused 1 to 3 engaged in the process of counterfeiting coins. The first accused was polishing some coins with brown powder, the second accused examining a half-rupee coin and the third accused cutting the edges of an unfinished half-rupee coin with a pair of scissors. The door of the room was not bolted, and they entered the room. M.Os. Nos.1 to 10 were in the room at that time. The first accused was polishing some coins with brown powder, the second accused examining a half-rupee coin and the third accused cutting the edges of an unfinished half-rupee coin with a pair of scissors. The door of the room was not bolted, and they entered the room. M.Os. Nos.1 to 10 were in the room at that time. These included brown powder, an aluminium dish, four earthenware moulds for making half-rupees, two moulds for making quarter rupees, a piece of white string, five finished counterfeit half-rupee coins, nine unfinished half-rupee coins, four pieces of lead, four iron bands and a pair of scissors. The accused were asked to produce other articles connected with the manufacturing process, and the third accused produced M.Os. Nos. 11 to 21 which include a lead sheet in the shape of a ribbon, pieces of lead and antimony, a bamboo blowpipe, table knife, sand paper, etc. The second accused produced an earthenware jug, a metal spoon and some charcoal. Pw. 9 prepared a mahazar, which was attested by Pws.1, 2 and Pear Muhamed, and he took possession of all the articles. The accused were arrested and taken to the police station the same night. Pw. 9 then recorded his own statement as the first information relating to this case, After further investigation the accused were charged before the City Second Class Magistrate, Trivandrum, who conducted the preliminary enquiry and committed the accused to the court of sessions to stand their trial for offences under S.232, 235 and 34 of the Indian Penal Code. At the trial, charges were framed under S.232, 235, 243 and 34 of the Indian Penal Code. The learned Sessions Judge found the accused guilty and sentenced them, as stated above. 3. These appeals have been forwarded by the accused through the jail authorities. As the accused were unrepresented, advocate Sri K.S. Rajamony was engaged by the State to represent them. The points raised by him were that the investigation was vitiated by illegalities and that the witnesses examined for the Prosecution were not reliable. 4. The main defence of the accused was that the case was foisted on them due to the enmity of Pws.1 and 2 and the fact that a similar case taken against them on a previous occasion by the Police ended in acquittal. 4. The main defence of the accused was that the case was foisted on them due to the enmity of Pws.1 and 2 and the fact that a similar case taken against them on a previous occasion by the Police ended in acquittal. The second accused further stated that he used to reside with his wife at Vizhinjam and that he came there with his wife that day hearing that his mother was ill. The third accused stated that he was sleeping on the bench nearby when somebody asked him to get up at about 1-30 A. M. 5. On behalf of the appellants it was strenuously contended that the investigation of the ease from the very commencement was vitiated by illegalities. It was pointed out that Ext. P5, the statement given by Pw. 9 and recorded by himself after the accused were arrested and the articles seized, was not really the first information regarding the alleged offence and that Pw. 9 should have recorded the statement of the person who told him that the accused were actually engaged in counterfeiting coins at the house of the first accused. The argument was that by not recording that statement or examining the informant the accused had been deprived of the opportunity of cross-examining him and establishing their innocence. There is substance in this contention. The information received by Pw. 9 was that an offence was committed. He should have made a record of the statement given by the informant. 6. Another ground of attack was that the search of the house of the first accused was in violation of the provision of S.98 and 165 of the Code of Criminal Procedure. The question has to be considered on the assumption that the articles were seized in the manner stated by the Prosecution. S.98 contemplates search under a warrant from a Magistrate while S.165 enables a Police Officer to conduct a search under certain circumstances without such a warrant. It is further provided in S.165 that before conducting the search the Police Officer should record in writing the grounds of his belief and specifying so far as possible the thing for which search is to be made. This record has to be sent forthwith to the nearest Magistrate empowered to take cognizance of the offence. It was argued that Pw. This record has to be sent forthwith to the nearest Magistrate empowered to take cognizance of the offence. It was argued that Pw. 9 had not made such a record before searching the house of the first accused. According to the respondent this is not a case in which the articles were recovered on search. Pw. 9 found the accused using these articles for committing the offence and he took possession of these when he arrested the accused. This may apply to M.Os. Nos.1 to 10 which were alleged to have been actually being made use of while Pw. 9 went there. So far as the other articles are concerned the case is that accused 2 and 3 produced the same from inside the house voluntarily. If the act of Pw. 9 is treated as a search of the house it is clear from the evidence that the preliminary steps to be observed before conducting a search of a house have not been complied with. However, the Prosecution case is that Pw. 9 did not go out to make a search & that the seizure of the articles was not during the course of a search as contemplated by the Code of Criminal Procedure. If this is correct-I am assuming it is for the purposes of this argument-the objection regarding the recovery of the articles is of no force. The question whether the evidence adduced by the Prosecution on this point is acceptable will be considered later. 7. Coming to the oral evidence it must be observed that the same is not at all impressive. There is no consistent evidence as regards the manner in which the presence of Pw.1 was secured by the Police. According to Pw. 9, Pw.1 and one Peer Muhamed were already at the place when they stopped the van in front of the first accused's house. The version given by Pw.1 is however materially different from this. He stated that he was standing on the road about 11/2 furlongs away when he saw a jeep passing that way. He followed it walking at a slow pace and when he came near and saw that it had stopped by the house of the first accused he walked faster. Thus according to him he reached there some time after the police party arrived there. He followed it walking at a slow pace and when he came near and saw that it had stopped by the house of the first accused he walked faster. Thus according to him he reached there some time after the police party arrived there. This raises some suspicion regarding the discovery of counterfeiting and seizure of the articles especially as the accused have a case that Pw.1 was not on good terms with them - a case for which there is some foundation. It is in evidence that there was reason for discord between Pw.1 and the accused. Pw.1 had made a proposal to get his niece married to the third accused. The accused declined to entertain the proposal and it is admitted that the same fell through. Another reason for enmity urged by the accused is that Pw.1 stood as a candidate for election as President of an association connected with the mosque and that the accused worked against him. Some people including the accused had a suspicion that Pw.1 had misappropriated funds of the mosque and they made use of this allegation in opposing Pw. 1's candidature. Pw.1 admits that one Shamsuddin also contested the election though according to him the latter withdrew later. Apart from these it has to be mentioned that this is the third time he figures as a witness in a criminal case. Pw.1 appears to have had an active part in connection with the case. The Police went to the house of the accused the next day also and recovered a harmonium from there. Pw.1 appears to have been present at the time of recovery of the harmonium and he signs the mahazar (Ext. P2) relating to the same. Thus he was present at 1-30 A. M. as though anticipating the arrival of the Police and also the next day when the Police went there. In these circumstances he cannot be treated as an entirely disinterested witness. Pw. 2 also is not one of the neighbours. He lives about 11/2 furlongs away from the first accused's house and according to the Prosecution the police party met him near the mosque. They asked him to get into the van and accompany them. It is in evidence that there were five or six houses in the immediate vicinity of the first accused's house. He lives about 11/2 furlongs away from the first accused's house and according to the Prosecution the police party met him near the mosque. They asked him to get into the van and accompany them. It is in evidence that there were five or six houses in the immediate vicinity of the first accused's house. It is not clear why the Police chose to take him with them especially as he was not a neighbour of the place searched. According to Pw. 2 a list of the articles taken at 1-30 A. M. was prepared and a copy was given to the accused. This is not spoken to by Pw.1 or Pw. 9. The defence has a case that Pw. 2 had a quarrel with the second accused relating to the fish caught by the latter which Pw. 2 wanted to purchase. Though Pws.1 and 2 say that they also peeped through the window and saw the accused counterfeiting coins and that they were present when the accused were arrested and the articles seized, I am not inclined to place any weight on their testimony. 8. The circumstantial evidence also indicates that the prosecution case is open to serious doubt. The accused were residing in a house about 100 feet from the road which touches their compound. The compound was not fully fenced all around. In addition to the main road on one side, there was a pathway on another side of the compound and on the other two sides six families were residing. If the prosecution case is true the accused were making counterfeit coins in a room with the door unlatched and the window open so that people passing by could go in and see what they were doing. This appears to be highly improbable especially in a locality where other people were residing in the neighbourhood. Probably realising this, the prosecution seized the harmonium the next day. The suggestion was that the harmonium would be played while the coins were being filed so that neighbours may not hear the rasping sound. It is admitted that no body was playing the harmonium when the police party went there. It is also alleged that the witnesses were able to see the process going on inside the room as the accused were working with the aid of the light from a lantern. It is admitted that no body was playing the harmonium when the police party went there. It is also alleged that the witnesses were able to see the process going on inside the room as the accused were working with the aid of the light from a lantern. This lantern was not seized by the Police and the explanation given by Pw. 9 for not taking possession of the same is that he was influenced by humanitarian considerations such as that children were sleeping there and he did not want to deprive them of light. This is as artificial as the case that the accused were making counterfeit coins in a room with the door unlatched and the window opened. 9. The prosecution examined three witnesses to prove that the accused purchased the lead and antimony found there. The case is that they were purchasing lead, antimony, etc., from various shops in the bazaar. Pw. 3 was examined to prove that the second accused purchased from his shop quarter pound of antimony on 3-2-1958 and half pound more after one week. Pw. 5 was examined to prove that the third accused had purchased antimony from him on 12-2-1958. There is no record to prove the alleged sales by Pws. 3 and 5. Neither of them is paying sales-tax on their sales although they admit that they are merchants selling vessels. Admittedly they have no licenced shops or accounts and they did not issue cash bills for the purchases alleged to have been made. They were unable to mention the name of any other customer who had purchased articles from them. Pw. 3 stated that the second accused purchased antimony from him twice and that on the second occasion he volunteered the information that it was for manufacturing toys. Pw. 5 does not even remember the Corporation number of his shop. He does not remember when he started his business. It is doubtful whether he has ever seen antimony since he describes it as a type of lead. Although he does not generally ask his customers the purpose for which they buy things, he said he asked the accused in this instance and he replied that he wanted to make some idols. Pw. 5 admitted that several cases were taken regarding stolen articles found in his shop and that he had deposed as a witness in all those cases. Pw. Pw. 5 admitted that several cases were taken regarding stolen articles found in his shop and that he had deposed as a witness in all those cases. Pw. 6 deposed that on 3-2-1958 he sold quarter pound of tin to the third accused for Re. 1-6-6. He is a salesman in the shop of one K.S.T. Subbia Pillai. He said that the proprietor was not present at the time of this sale. Though ordinarily a cash bill would be issued for every sale he did not issue one in this case. He has never gone near Bheemapally but still he appears to have told the Police that a person from Bheemapally made this purchase. To explain this discrepancy he gave an explanation in his re-examination that the third accused said at the time of the sale that somebody else had purchased tin at a price of Rs. 5-4-0 per pound. Then Pw. 6 asked him where he was having business and he replied that it was near Bheemapally. Again be stated that he remembered the date because the third accused had tendered to him a torn two-rupee note at first. These explanations are not at all convincing. These are the type of witnesses produced by the prosecution to prove that accused 2 and 3 had purchased incriminating articles at about the time when the alleged offence was detected. I do not consider it safe to accept this evidence. 10. I have already stated that Pws.1 and 2 cannot be believed. The only other evidence regarding the alleged making of counterfeit coins and seizure is that of Pw. 9. In a case like this it is unsafe to enter a conviction on the uncorroborated testimony of Pw. 9. It follows that the evidence tendered by the Prosecution is not sufficient to prove the guilt of the accused. The accused have given some explanation as to why such a case was taken against them by the police and why Pws.1 and 2 have taken an active part in the same. They are not bound to prove this and this version does not appear to be improbable in the circumstances. It follows that the conviction must be quashed and the accused acquitted. 11. In the result, the conviction of the accused is set aside and they are acquitted. They are not bound to prove this and this version does not appear to be improbable in the circumstances. It follows that the conviction must be quashed and the accused acquitted. 11. In the result, the conviction of the accused is set aside and they are acquitted. They will be released from the custody if they are not wanted for any other offence. Allowed.