JUDGMENT : Biren Vaishnav, J. 1. All these appeals arise out of a common judgment and order dated 30.06.2004 passed by the learned Additional Sessions Judge and Fast Track Judge, Junagadh. 2. Criminal Appeal No. 1148 of 2004 has been filed by the original accused No. 4 as he has been convicted for offences under section 489(B) read with section 489(C) of IPC and sentenced to undergo seven years of rigorous imprisonment and fine of Rs. 5000/- in default thereof. Criminal Appeal Nos. 1949 of 2004 and 1950 of 2004 have been filed by the State of Gujarat. Criminal Appeal No. 1949 of 2004 has been filed by the State seeking enhancement of the sentence imposed on the original accused Nos. 1 to 4 who have been sentenced to undergo seven years of rigorous imprisonment for offence under section 489(B) and 489(C) of IPC whereas Criminal Appeal No. 1950 of 2004 has been filed by the State challenging the acquittal of original accused Nos. 5 to 8 and 10 to 20 in Sessions Case No. 74 of 2000, Sessions Case No. 99 of 2000, 14 of 2001, 29 of 2002 and 77 of 2001. 3. The prosecution case in brief is that on 13.01.2000 Shri P.O. Bhatt, Sub-inspector, Visavadar Police station lodged the first information report Exh 292. His case in the first information report was that he had come to Junagadh on instructions from the District Superintendent of Police and he together with one Police Inspector of Special Crime Squad Shri M K Kataria had carried out a raid. This was based on the information that one Ramesh @ Ramji @ Ramabhai Laxmidas Suthar, a resident of Nangalpur was dealing in counterfeit currency of Rs. 500/- and was also indulging in circulation thereof. On the basis of this information, the complainant Shri P.O. Bhatt, together with two panchas Rameshbhai Naranbhai Valand and Harkishanbhai Bhojra Sindhi and few other police personnel on 21.01.2000 at 10:30 in the night went to Jinjri where Ramesh @ Ramji was staying as a tenant of one Mansukh Kundaliya. On interrogating Ramesh @ Ramji, it was found that he was in possession of Rs. 500/- note which was found under the mattress of his room. On examination, the note was found to be counterfeit. On interrogating Ramesh @ Ramji, it was found that he was in possession of Rs. 500/- note which was found under the mattress of his room. On examination, the note was found to be counterfeit. On being further interrogated, it was revealed that one Ishabhai Musalman of Jamnagar who was acquaintance of Kamleshbhai Vadgama of Rajkot had given him counterfeit notes worth Rs. 6 lacs of which, notes worth rupees four and half lacs were parted by him in favour of one Bhikhabhai Tulsi Kathiriya at Mumbai and the remaining amount of Rs. 1 and a half lac was given to one Dhanesh Bachubhai Mistri also from Mumbai. Based on this first information report, investigation was carried out and 16 persons were arraigned as accused by the learned Additional Sessions Judge, Junagadh. These accused were charged for offence under sections 489(B) and 489(C) of IPC read with section 120B thereof. According to the charge, all the 16 accused were implicated for offence of having conspired to be in possession of and circulating counterfeit notes worth Rs. 6 lacs. 4. The complainant Pradipkumar Odhavji was examined as PW 1 at Exh 38. According to the testimony of this witness, he states that on 12.01.2001, he was discharging his duties as Police Sub-inspector at Visavadar police station. That when he had come to Junagadh, he met one Mr. M.K. Kataria, Police Sub-inspector of the Special Crime Branch. On the information received that one Ramesh @ Ramji, accused No. 1, a resident of Nagalpur was indulging in possession and circulating Rs. 500/- counterfeit currency notes, both the complainant and Shri Kataria accompanied by a few other police personnel carried out a raid at Jinjri village where Ramesh @ Ramji was staying in a tenanted premises of one Mansukhbhai. This witness further deposes that when Ramesh was interrogated, he stated that he was a resident of Nagalpur but was presently staying at Jinjri. A 500 rupee note was recovered from under a mattress. According to the testimony of this witness, the 500 rupee note appeared to be a counterfeit note and therefore, seized. This witness further in his deposition reveals that on interrogation of Ramesh @ Ramji it was further elicited from him that he was acquainted to one Ishabhai Musalman, accused No. 5 of Jamnagar. The complainant identified the accused who was present in the Court. This witness further in his deposition reveals that on interrogation of Ramesh @ Ramji it was further elicited from him that he was acquainted to one Ishabhai Musalman, accused No. 5 of Jamnagar. The complainant identified the accused who was present in the Court. The complainant was extensively cross-examined on behalf of the accused. In his cross examination he states that he had come to Junagadh only on being called by the Deputy Superintendent of Police. He admits that he had no official communication pursuant to which he was called by the Deputy Superintendent of Police. He admits that he had gone to police station for courtesy call where he met the Police Inspector Kataria, officer of the Special Branch, with whom he carried out the raid. This witness further admits that while going from Visavadar there are three police stations viz. Bilkha Police Stations, Nagalpur and Mendarda Police station which fall within the jurisdiction where accused was accosted. He admits that the raid was carried out within the jurisdiction of the Jinjri Manavadar police station. This witness in his cross examination further admits that he was informed by the Deputy Superintendent of Police when he went to meet him that since he had gone to Junagadh he should accompany the police party carrying out the raid. The decision to carry out raid was taken jointly by him and Mr. Kataria, Officer of the Special Branch and there are no written orders qua him to accompany police party carrying out the raid. There was no entry made in the station diary of the Police Station, Junagadh. In his cross examination, the complainant further admits that when accused No. 1's house was searched, except for the single currency note of Rs. 500 nothing was found from his possession. He further reiterates that except for Rs. 500 currency note in question no other counterfeit currency notes were found in possession of the accused. It was further admitted that he had gone to Jinjri without any official communication. The witness further admits in his cross examination that in the first information report Exh 39, he had not clarified as to whether and at what time was the first information report lodged and on what basis was such information report lodged. It was further admitted that he had gone to Jinjri without any official communication. The witness further admits in his cross examination that in the first information report Exh 39, he had not clarified as to whether and at what time was the first information report lodged and on what basis was such information report lodged. This witness in his cross examination further admits that it was only on 18.01.2000 that on instructions of the police inspector he started looking for the other accused and that he recorded the statements of persons around Ketan Auto Garage which belonged to one of the accused. 5. PW 2 is Karman Lakhman is the panch witness. He is the Panch Witness to the recovery of notes at the instance of the Accused No. 1 from the residence of the Accused No. 2, Bhikhabhai Tulsi. Together with this Panch witness PW 8 also is a signatory to the same Panchnama. Both these witnesses have turned hostile.PW 2 in his cross-examination admits that pursuant to the willingness of the accused No. 1, Ramesh @ Ramji to take the police party to Mumbai to show the place where other counterfeit notes of Rs. 500 were said to have been hidden he accompanied them to Mumbai. In the cross examination, this panch-witness had come-forward and stated that this panch witness was taken to Mumbai at Kandivali by the accused No. 1 Ramesh at the residence of Bhikhabhai Tulsi Kathiriya, the accused No. 2. According to the version of this panch-witness, when Ramesh asked for information from Bhikhabhai Tulsi Kathiriya about Rs. 500 counterfeit notes given to him Bhikhabhai Tulsi Kathiriya came forward with nine bundles of counterfeit notes of Rs. 500/-. From bundle 01, 02 and 03, 93, 95, 99 counterfeit notes according to this witness were found from the possession of accused No. 2 Bhikhabhai Tulsi Kathiriya at the instance of Ramesh. PW 8 has also testified on the same lines as PW 2. 6. Dinesh Jivraj is the panch-witness who was examined as PW 3. He is a panch-witness of the Rs. 500 note recovered from the landlord of accused No. 1.This witness otherwise has turned hostile. Similarly, PW 4 is also a panch-witness to the same recovery of Rs. 500 note and has also turned hostile. 7. 6. Dinesh Jivraj is the panch-witness who was examined as PW 3. He is a panch-witness of the Rs. 500 note recovered from the landlord of accused No. 1.This witness otherwise has turned hostile. Similarly, PW 4 is also a panch-witness to the same recovery of Rs. 500 note and has also turned hostile. 7. PW 5 Rajesh Ranchhoddas and PW 6 Nayan Popat are also panch-witnesses of recovery of counterfeit notes from Dhanesh Bachu and Dhanesh Dwarkadas, accused No. 3 and 4 respectively. Both these Panch witnesses have turned hostile. In the cross examination, PW 5 has stated that accused No. 3 and 4 were residents of Mumbai and had come to Junagadh at Raj Guest House. In the cross examination, he admits that accused No. 3 and 4 were staying in room No. 5 of Raj Guest House. On 18.01.2000, according to this witness, when this panch witness was taken to this guest house at Room No. 5, it was then that the accused No. 3 and 4 were found to be in possession of Rs. 500 note which were found to be counterfeit. The panch-witness further in his cross examination extensively reveals the number of notes that were found from the possession of accused No. 3 and 4 respectively. This witness in his cross examination states that on examination of the Manager and the General Register of the Guest House they admitted that two guests from Mumbai were staying at the Guest House. The witness further testifies that on conducting a search in the room a plastic bag was recovered from the room from under the mattress. There were bundles of Rs. 500 notes 88, 75 and 80 in number. PW 7 Harkishan Bhojraj is the panch-witness of panchnama of Rs. 500 note which was seized from accused No. 1 Ramesh. This witness also has otherwise turned hostile. PW 8 of the same panch also has turned hostile. 8. PW 9, Chagan is a Panch Witness, not a material witness. Recovery of a Portfolio from the house of the accused's No. 1's mother is attributed to his testimony and the Panchnama. PW 10 and PW 13 are Panch witnesses to the recovery of one Rs. 500/-denomination note each from the ST Bus Stop from the Accused Nos. 11 and Accused No. 12 respectively. Even these Panch witnesses have turned hostile. 9. PW 10 and PW 13 are Panch witnesses to the recovery of one Rs. 500/-denomination note each from the ST Bus Stop from the Accused Nos. 11 and Accused No. 12 respectively. Even these Panch witnesses have turned hostile. 9. PW 11 and PW 12 are Panch witnesses to the recovery of one Rs. 500 Note from Accused No. 16.PW 14 similarly is Panch witness to recovery of such a note from Accused No. 10. PW 15 and PW 16 are Panch Witnesses to recovery of a Rs. 500/- note from Accused Nos. 5 to 8 respectively. 10. The next material witness and the only panch-witness who has supported the panchnama is PW 17 Rameshbhai Naranbhai who was examined at Exh 83. According to the testimony of this witness, he was summoned to the gram panchayat office alongwith Harkishan and informed that they were part of the police party carrying out a raid. According to the testimony of this witness he alongwith Mr. Kataria and the police personnel went to Jinjri village where Ramesh, accused No. 1 was staying. On being interrogated it was found that Ramesh was in possession of currency note of Rs. 500 which was found from under the mattress of his room. With the help of a gadget it was confirmed that Rs. 500 note in possession of Ramesh was a counterfeit note. The panch had made a panchnama. In the cross examination this witness said that he was summoned to the police station at 10:30 at night. The room in which Ramesh was staying was searched and the only counterfeit note that was found was a single note of Rs. 500 denomination. Nothing else incriminating was found from the room. 11. Mansukhbhai Govindbhai, the landlord was examined as PW 18 at Exh 109. This witness in his deposition states that he has a residential house at Jinjri. Ramesh was a tenant and the rent fixed was Rs. 225/-. It was decided that the rent will be per month and accordingly, for rent of Rs. 225/- Ramesh had given currency note of Rs. 500/- and told him to return the balance amount. In his version the landlord states that Junagadh Police had come and asked for the currency note of Rs. 500/- which Ramesh had given to him and panchnama was made. He had identified the note Article No. 11 in question. 225/- Ramesh had given currency note of Rs. 500/- and told him to return the balance amount. In his version the landlord states that Junagadh Police had come and asked for the currency note of Rs. 500/- which Ramesh had given to him and panchnama was made. He had identified the note Article No. 11 in question. He had identified the accused who was present in the court. In his cross examination this witness admits that rent was to be paid every month and the tenancy had entered the second month. That he had no other Rs. 500/- currency note except one given by accused No. 1. 12. PW 19, Bhavanbhai Bhurabhai has been examined at Exh 110. This witness has also turned hostile. The prosecution has sought to examine this witness to establish the relationship of accused No. 5 with the other accused. 13. Rajendrakumar Lakhimal Agraval, PW 20, has been examined at Exh 111. He is the owner of Mansarovar guest house at Valsad. Accused No. 16, according to the version of this witness, had been a guest at his guest house. Testimony of this witness except for trying to implicate the accused on the basis of a conspiracy with the other accused especially accused No. 5 is not material. PW 21 and PW 22 also are witnesses who have been examined. Implicated accused No. 6 was otherwise acquitted by the learned Sessions Judge. 14. Kishoresinh Jaywantsinh Jadeja is examined as PW 25 at Exh 116. He has however turned hostile. He owns an STD PCO outlet in the name of Gurukrupa. This witnesses only material testimony is that Accused No. 5 used to make calls from his PCO, to Mumbai, Surat Vadodara, Junagadh etc. During the period from 12/09/1999 to 19/9/1999 he made 54 calls to these centres. The Manager of the Raj guest house has been examined at PW 28 together with the panch witness. As narrated hereinabove, the testimony of these witnesses vis-à-vis accused Nos. 5 to 8 and 10 to 20 are concerned, the panch witnesses except PW 17 have not supported their testimonies vis-à-vis the role of these accused. 15. PW 24, owner of a shop adjacent to Accused No. 10's Ketan Auto Garage. This witness only deposes that he used to receive calls from Jamnagar for the owner of the Garage, Accused No. 10. 16. 15. PW 24, owner of a shop adjacent to Accused No. 10's Ketan Auto Garage. This witness only deposes that he used to receive calls from Jamnagar for the owner of the Garage, Accused No. 10. 16. The Bank Officer Chaitanya Chhaya has been examined as PW 45. It is worthwhile to examine the testimony of this witness where in his cross examination it is indicated that the bundle that were sent for verification were not packed or sealed or did not contain any number or signature by the panchas. This is evident from the cross examination of this witness on behalf of accused Nos. 1 and 2. He admits that he had received 1077 notes for preliminary examination. All these notes were in one bundle which was sent by the police. There was no seal and the notes were in loose bundle. 17. Next material witness is the Investigating Officer Muljibhai Kalyanjibhai Katariya who was examined as PW 57 at Exh 279. In his examination-in-chief he extensively deals with the nature of investigation carried out by him. His testimony reveals that as far as accused No. 1 is concerned, the note was found from his possession under the pillow. Several of the accused were found in possession of the notes who were on transfer warrants and therefore under police custody. In his cross examination this witness further admits that when the note was recovered from accused No. 2, the note was not sealed and sent for examination in a condition that it was supposed to be sent. According to this witness, he did not find it necessary to carry out the process of packing and sealing the notes that were recovered when it was to be sent for forensic examination. In his cross examination he further reveals that when he carried out the visit to Raj Guest house on 18.01.2000 he did not inquire as to for what purpose the accused Nos. 3 and 4 came to Junagadh. He admits except for currency notes of Rs. 500 nothing incriminating was found from accused Nos. 3 and 4 from the guest house. 18. Based on this evidence which has come on record, it needs to be appreciated whether on the basis of such evidence can the conviction of accused No. 4 who has come by way of Criminal Appeal No. 1148 of 2004 be sustained. 500 nothing incriminating was found from accused Nos. 3 and 4 from the guest house. 18. Based on this evidence which has come on record, it needs to be appreciated whether on the basis of such evidence can the conviction of accused No. 4 who has come by way of Criminal Appeal No. 1148 of 2004 be sustained. Further, whether the sentence imposed on the other accused viz. accused Nos. 1, 2, 3 and 4 needs to be enhanced as prayed for in Criminal Appeal No. 1949 of 2004 and also whether the findings arrived at by the learned Sessions Judge in acquitting the remaining accused namely accused No. 5 to 8 and 10 to 20 needs to be interfered with, as prayed for in Criminal Appeal No. 1950 of 2004. 19. The complainant in question namely the Police Inspector Pradipkumar Odhavji was a Police Inspector of the Visavadar Police Station. From the testimony of this witness it becomes apparent that except for a visit scheduled to the office of the Deputy Superintendent of Police he had no occasion to be associated with carrying out a raid, to seize the counterfeit currency notes on the information supplied by the Investigating Officer Shri Kataria of the Special Crime Branch. On reading the testimony of this witness together with that of the Investigating Officer Shri Kataria, it further comes out that the first information report was lodged without any time on it. Jinjri, admittedly fell within the jurisdiction of Manavadar Police Station and therefore as a Police Officer attached to the Visavadar police station the complainant otherwise had no role to play in the investigation that needed to be carried out. It further needs to be kept in mind that he is a police witness and therefore more particularly when he is the sole witness, his testimony therefore needs to be appreciated accordingly. 20. The link to establish a case of conspiracy in dealing with/possessing counterfeit currency notes is sought to be connected by examining various Panch witnesses, Managers/Receptionists of Guest Houses in Vadodara, Surat, Valsad and Junagadh and shop owners in the neighbourhood or STD/PCO Operators. The investigation, according to the prosecution case has brought out a network of the operations of the accused spanning across Mumbai, Valsad, Surat, Junagadh etc. However as is evident on reading the evidence, majority of Panch witnesses have turned hostile. The investigation, according to the prosecution case has brought out a network of the operations of the accused spanning across Mumbai, Valsad, Surat, Junagadh etc. However as is evident on reading the evidence, majority of Panch witnesses have turned hostile. As far as Accused No. 1 is concerned, a single currency note of Rs. 500 is found from his possession, that too from under a pillow. The other note given by him to the landlord by way of rent is also a matter of debate. To this aspect we shall refer to at a later stage. 21. PW 17 is the only panch-witness who has supported the prosecution. Even if the prosecution of this witness is read in context of the testimony of PW 2 who has otherwise turned hostile, the only redeeming feature which can be said to be one is that accused No. 1 led the police party to Mumbai to the residence of accused No. 2. It is hugely doubtful if this can be stated to be a discovery panchnama so as to make the statement of the accused No. 1 admissible with the aid of section 27 of the Evidence Act. All that was done by the accused No. 1 even if we believe this witness was that he led the police to the house of accused No. 2 where the fake currency notes were supposed to have been kept. It was not accused No. 1 but accused No. 2 who brought out such notes from his house. This was thus not a recovery at the instance of accused No. 1. Recovery of notes were said to have been made. Accused Nos. 3 and 4 who otherwise were residents of Mumbai were not found to be in Mumbai and it was later i.e. on 18.01.2000 they were found to be at a guest house in Junagadh as is evident from reading the testimony of the Manager of the Raj guest house namely PW 27 who is examined at Exh 118. 22. Mansukhbhai, the landlord of accused No. 1 has, in his testimony, stated that the amount of rent needed to be paid was Rs. 225/- per month and that he had accepted Rs. 500 note from Ramesh and had to repay the balance amount. That the tenancy had already entered the second month. 22. Mansukhbhai, the landlord of accused No. 1 has, in his testimony, stated that the amount of rent needed to be paid was Rs. 225/- per month and that he had accepted Rs. 500 note from Ramesh and had to repay the balance amount. That the tenancy had already entered the second month. As is further evident from the testimony of this witness was also recovered from under a pillow. Circumstances of recovery of a Rs. 500 note paid towards rent of Rs. 225/- and the failure to return the balance amount make such a recovery highly suspicious. To make recovery sound probable, the witness claimed that the rent was paid only couple of months before recovery, in the process failing to explain why rent was collected not in advance from a tenant who was new to the landlord. 23. From the testimonies of the Police Officers who have testified, it is evident that some of the accused were in police custody brought under transfer warrants. Only one currency note of Rs. 500 each was recovered from their possession. Possibility therefore of planting such notes on the accused cannot be ruled out failing which there is no explanation how these accused continued to hold such fake notes even during their period of arrest. 24. The entire exercise of seizure of notes and the manner they were sent to for forensic examination also raises more questions than it answer's. The reading of the testimonies of the Investigating Officer together with the Bank Official indicate that the notes were kept in open plastic bags without affixing any seal or signatures. The notes were not even packed. This would completely destroy the link between the seized currency notes and those which were sent for forensic analysis. The seizure and the subsequent exercise is extremely doubtful and raises suspicion. 25. PW 2 and PW 8 are panchas who depose that Accused No. 1 led them to Mumbai and notes were therefore recovered from Accused 2, 3 and 4. Accused Nos. 3 and 4 were not found in Mumbai. The exercise of this purported discovery was at the instance of Panchas from Junagadh. 25. PW 2 and PW 8 are panchas who depose that Accused No. 1 led them to Mumbai and notes were therefore recovered from Accused 2, 3 and 4. Accused Nos. 3 and 4 were not found in Mumbai. The exercise of this purported discovery was at the instance of Panchas from Junagadh. The entire exercise of recovery/discovery is highly suspicious when, as revealed from the testimony of the Investigating Officer, the local police station at Mumbai was not informed about the raid or a request was made for the police of such police station to accompany the Panchas from Junagadh. 26. Both Accused Nos. 3 and 4 Dhanish Bachu and Dhanish Dwarkadas were not found in Mumbai. Based on the testimony of the Manager of Raj Guest House, their presence at Junagadh at a later date on 18/1/2000 is unexplained. The Investigating Officer who had accompanied the party to Mumbai, on return, found them at the Guest House and recovery of notes was made. 27. As noted earlier, only the police officers forming the raiding parties had supported the prosecution. Majority of the panch-witnesses had turned hostile. It is not that even otherwise reliable and found believable evidence of members of such raiding party may not be accepted merely because they happened to be police officers. However, we have noticed several suspicious circumstances and improbabilities in the version of the prosecution. We would make a combine reference to such factors here. The raiding party claims to have recovered only one fake currency note of Rs. 500/- from accused No. 1 at his residence that too under a pillow. Rs. 500/- is said to have been paid by him in fake currency note by way of rent to his landlord. Though rent was Rs. 225/- apparently, the landlord had not returned the change for over a month. The note was still found from the landlord that too under a pillow. The rent was allegedly paid barely three days before the incident for the rental period which started much earlier. This is one more unusual factor since as a new tenant it is unlikely that the landlord would not recover the rent beforehand. Further the accused arrested later on each carried one fake currency note of Rs. 500/-. Many of them were brought under transfer warrant. They were thus in judicial or police custody till then. This is one more unusual factor since as a new tenant it is unlikely that the landlord would not recover the rent beforehand. Further the accused arrested later on each carried one fake currency note of Rs. 500/-. Many of them were brought under transfer warrant. They were thus in judicial or police custody till then. It is highly surprising that during all such period they continued to carry fake currency notes with each of that persons. The arrest and finding of fake currency from accused No. 2 and 3 is extremely suspicious. When the police party had raided their houses in Mumbai they were not available. Surprisingly, they surfaced at Junagadh clearly indicating that they had whiff of their accomplices being arrested. Strangely they surfaced at Junagadh in a guest house while carrying fake currency notes. The currency note seized and sent for forensic analysis were not in sealed condition. Witnesses after witnesses had admitted that the notes were not sealed, carrying signatures of the officers or panch-witnesses. This would completely destroy the connection or the identity of the seized notes with those which the forensic department found to be fake. 28. Taking into consideration all these circumstances, the testimony of the sole police witness, the recovery of Rs. 500 note under the circumstances and the manner in which they are recovered/discovered and especially when such Panchnamas are not supported by the Panchas, the local panchas and police from Junagadh going to Mumbai and not keeping the police in Mumbai in the loop, are circumstances which lead us to believe that this is a case of the prosecution based on suspicion which "may be true" or "may not be true" and therefore the benefit of doubt therefore must go to the accused. 29. Taking into consideration all these circumstances, as far as conviction of accused No. 4 of Criminal Appeal No. 1148 of 2004 is concerned, it needs to be set aside. Accordingly, Criminal Appeal No. 1148 of 2004 is allowed. Criminal Appeal Nos. 1949 of 2004 and 1950 of 2004 filed by the State seeking enhancement of the sentence of original accused Nos. 1 to 4 and seeking reversal of acquittal of original accused Nos. 5 to 8 and 10 to 20 deserves to be dismissed. Accordingly, these appeals stand dismissed. R & P be transmitted back to the concerned Trial Court. Bail bonds stand discharged.