JUDGMENT P.K. Musahary, J. 1. Heard Mr. A. Rashid, learned Counsel for the accused-Appellant and also heard Mr. K. Munir learned Addl. Public Prosecutor, Assam. 2. Being dissatisfied with and aggrieved by the judgment and order dated 30.3.2009 passed by the learned Addl. Sessions Judge (FTC), Darrang, Mangaldoi, in Session Case No. 53(DM)/07, convicting and sentencing him to undergo R.I. for 7 years with fine of Rs. 10,000 in default, to undergo further R.I. for 1 year under Section 489C, IPC, the Appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure. 3. Adverting to prosecution case, as unfolded from the FIR, it may be briefly stated that on 31.8.2005, the then ASI of Mangaldoi Police Station, on receipt of a secret information, proceeded along with another police personnel, namely, Shri Mahesh Nath accompanied by a Section of CRPF personnel and conducted a search operation at about 11.00 a.m. in the bus named as Siva Sundar bearing registration No. AS-13/8073 at Tamulipara of Mangaldoi Town. The said bus was coming from Tezpur side towards Mangaldoi. During search operation, the accused-Appellant was found sitting on a seat of the bus and beneath the seat of the accused-Appellant, a plastic bag containing 45 Nos. of fake currency notes of 500 denominations wrapped with a polythene concealed under husk along with one suspected 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. 247/2005 under Sections 489A / 489C, IPC read with Section 51 of the Wild Life Protection Act. During investigation, the seized currency notes and the Rhino horn were sent for forensic examination. It was returned with positive report in respect of the counterfeit currency notes and negative report in respect of rhino horn. The police, on completion of investigation, submitted charge sheet against the accused-Appellant under Section 489A / 489C, 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 489C of the IPC. The said charge being read over and explained, the accused-Appellant pleaded not guilty and claimed to be tried. 5. Sessions Judge (FTC) for trial and disposal whereupon the charge was framed against the accused-Appellant under Section 489C of the IPC. The said charge being read over and explained, the accused-Appellant pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 07 witnesses including the complainant, Investigating Officer and Forensic expert. The accused-Appellant was examined under Section 313, Code of Criminal Procedure. He expressed his desire to examine 01 witness named Sahab Uddin in his defence but ultimately he did not examine him P Ws 1 and 7 are police officials, who were detailed for search in the bus. According to them, they intercepted the aforesaid bus and got into the bus and checked the passengers one by one and made them to get down from the bus. According to PW1, Budhen Bhagbati, a plastic bag placed on a box was found 'on seat No. 1' whereupon the accused-Appellant, Amir Hussain was sitting. A Rhino horn and 46 Nos. of fake currency notes of Rs. 5,00 denominations were found inside the husk from the said bag and the same were seized by him. 6. PW7, Shri Mahesh Nath, who was the I.O. of the case, deposed in the same manner but he stated that the said bag was found 'under the seat' on which the accused Amir Hussain was sitting. As I.O., PW7 sent the seized materials for FSL examination. He examined some witnesses including the driver and conductor of the said vehicle/bus. PW5 Abdul Selam, driver of the bus, in his deposition, stated that after the bus was intercepted at about 10.00 a.m. and the police started checking the passengers after alighting them from the bus. In cross-examination, 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 and brought down the seized materials from the bus. According to him, the seized materials were recovered from the 'beneath of the seat' but he could not say who was sitting on the seat below which the materials were recovered. His deposition before the court to the effect that the seized currency notes were recovered from his bus is as per the instruction of the prosecution. Md. Rafiq Ali, the conductor of the bus was examined as PW6, who was declared as a hostile witness. His deposition before the court to the effect that the seized currency notes were recovered from his bus is as per the instruction of the prosecution. Md. Rafiq Ali, the conductor of the bus was examined as PW6, who was declared as a hostile witness. He corroborated the evidence of PW5. In cross-examination by defence counsel, this 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 P Ws 1 and 7 including the P Ws 5 and 6, driver and conductor respectively, they deposed that it was only the handyman of the bus who was taken inside the bus for searching the bus and the recovered seized materials were brought down by him but, surprisingly, the said handyman was not cited as witness by the police while submitting the charge sheet, although, he was the eye witness 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 driver and the conductor of the bus were seizure witnesses only and they have signed on the seizure list, Exhibit-01. They are not eye witnesses to the fact of actual recovery of the seized materials. 8. There are serious contradictions in the statements of PW1, Police ASI, who accompanied the I.O. inasmuch as in his examination-in-chief, if the relevant portion of his deposition in Assamese is rendered into English, it would be like this. Examination-in-chief. ...we searched the passengers of the vehicle. We searched them one by one inside the vehicle. We alighted the 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. Examination-in-chief. ...we searched the passengers of the vehicle. We searched them one by one inside the vehicle. We alighted the 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. Then 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 and unreliable for conviction of an accused-person. PW7, I.O. of the case has also contradicted his own statements in examination-in-chief while he was cross-examined by the defence counsel. His statement in examination-in-chief and cross his Assamese if rendered into English would be like this. Examination-in-chief..........while checking the bus, we found a bag from accused Amir Hussain. Amir Hussain was sitting on the seat of the bus. The bag was found under the seat. Inside the bag, we found 46 Nos. of fake currency notes of 500 denominations and a Rhino horn like material. I seized the said materials. There were 30/40 passengers including the accused. In Cross-examination - There were 30/40 passengers including the accused in the bus. We could not ascertain from the version of the accused as from whom the seized articles of currency notes and Rhino horn found in the bag were brought. There is a contradiction in the statements about the place from which the said bag 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 PW1, who was also contradicting his own statement as he said that it was found on a box placed at seat No. 1. In his examination-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 P Ws 1 and 7 as sufficient for conviction of the accused-Appellant. In his examination-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 P Ws 1 and 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 materials were found, has not been proved. None of the passengers of the said bus was also cited and examined as witness. It was, otherwise, possible from amongst the passengers to point or identify the accused-person or any of the passenger involved 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 and it was kept by him at a particular place inside the bus. The conductor of the bus, PW6, did not make any statement that he saw the accused carrying the plastic bag. The prosecution could have examined the handyman of the bus who was present inside the bus along with the police officials while searching the vehicle/bus and recovered the plastic bag in his presence. This handyman was the best person to depose whether during search, the accused-person was found sitting on a particular seat with the aforesaid plastic bag under the seat on which he was sitting or the same was found on the bunker or placed on a box on seat No. 1. Except the statement of P Ws 1 and 7, there is no evidence on record that the accused-Appellant alone remained inside the bus although all the passengers had alighted. 11. Therefore, it is not proved that the accused-Appellant alone was remaining inside the bus. If this fact was proved by the prosecution, some adverse presumption could have been drawn against the accused-Appellant. Even accepting, as claimed by the prosecution, that the accused-Appellant was sitting alone on a particular 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. Even accepting, as claimed by the prosecution, that the accused-Appellant was sitting alone on a particular 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 appreciate the evidence of P Ws 1 and 7, both the police officials, who have contradicted each other on the material statement in regard to place of recovery of the seized materials from the bus and convicted the accused-Appellant on presumption only. The charge against the accused Appellant has not been proved beyond doubt far less beyond all shades of reasonable doubt. Here is a case where doubt has remained 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, recovery 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 settled so by Supreme Court in Periyasami v. State of Madras, AIR 1967 SC 1027 , and in Assistant Collector of Central Excise v. Syed Mohammed, AIR 1983 SC 168 . It is the settled law that the onus of proving the facts 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 about the guilt of the accused and an accused cannot be convicted of an offence on the basis of conjectures or suspicions. 12. It is also a settled position of law that if a reasonable doubt arises in the mind of the court after taking into consideration the entire materials before it regarding the complicity of the accused the benefit of such doubt should be given to the accused. 12. It is also a settled position of law that if a reasonable doubt arises in the mind of the court after taking into consideration the entire materials before 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 v. State of Tamil Nadu, AIR 1991 SC 1463 held that the doctrine of benefit of 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 failed to prove its case beyond reasonable double, yet the learned trial court convicted and sentenced the accused-Appellant on mis-appreciation of evidence on records, particularly, the evidence of P Ws 1 and 7 who have contradicted each other 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 accused-Appellant, he is entitled to get the benefit of doubt and set aside the impugned conviction and sentence. 14. Accordingly, the impugned conviction and sentence, passed on 30.3.2009 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 doubt. 15. The accused-Appellant be set at liberty forthwith, if his further detention is not required in connection with any other case. Bail bond stands discharged. 16. The appeal stands allowed. 17. Send down the LCR to the court below forthwith. Appeal allowed