1. Briefly narrated, the prosecution story is as follows. On 31st October 1960, the Agent, State Bank of India, Jaipur, sent to the Superintendent of Police, Jaipur, two forged currency notes, one of the denomination of Rs. 100/- received by the Bank from one Manakchand and the other of the denomination of Rs. 10/- produced in the Bank by Banshi Dhar Satyanarain, Jaipur. The District Superintendent of Police sent these notes to the Currency Note Press, Nasik Road, for examination. Mr. B. L. Kulthe, P. W. 13, Assistant Supervisor and Expert in Detection of Forged Currency and Bank Notes, Studio, India Security Press, sent his reports No. 39 (C/L/2) 1324 and No. 39 (X/H/3) 1323 both dated 10th May 1981, stating therein that the two notes were forged ones. Thereafter the police registered a case at the Police Station, Manak Chowk, Jaipur, under Section 489B, Indian Penal Code, on 21st June 1981. Ram Pratap, P. W. 6, S. I. started investigation. A. R. Khan, P. W. 29, Inspector, C. I. D., also joined it subsequently. P. W. 2 Bhanwar Singh, Clerk Incharge of the Counterfeit Coins section, C. I. D. Branch Jaipur was informed by his friend P. W. 1 Hanuman that there existed in Jaipur a gang, engaged in counterfeiting currency notes. The accused Chhuttanlal was the active member of that gang. P. W. 2 Bhanwar Singh produced Hanuman before Mr. N.C.. Dutta, Superintendent of Police, C, I. D. (Crimes), P. W. 28, and Mr. U. N. Misra, Deputy S. P. (C. I. D.) P. W. 25, Mr. Dutta told Bhanwar Singh and Hanuman to be vigilant and to establish contact with the members of the gang and find out its all possible activities or modus operandi. He also asked Mr. U. N. Mishra to render every possible assistance to Bhanwar Singh and Hanuman in the matter.
Bhanwar Singh and Hanuman thereafter got in touch with the accused Chhuttanlal. Chhuttanlal, in the course of their contact, told them that he was capable of counterfeiting currency notes. These two persons then, under false pretext, joined the gang as partners. Bhanwar Singh was introduced to the gang as a Cashier in the P. W. D. Chhuttanlal agreed to forge the currency notes. The accused Shyam Sunder and P. W. 2 Bhanwar Singh undertook to finance the business. It was also agreed that the accounts of the partnership would be maintained by the accused Chhuttanlal, who was to get one half share in the profits. One fourth share of the profit would go to Shyam Sunder. The residuary one fourth share was to be assigned to P. W. 1 Hanuman and P. W. 2 Bhanwar Singh jointly. Bhanwar Singh parted with Rs. 200/- and two zinc plates to the accused Chhuttanlal. Accused Shyam Sunder gave Rs. 200/-, as also some powder and acid for etching purpose. Accused Chhuttanlal then got prepared currency designs with the zinc plates which are marked Exs. 20, 21-A and 21-B, through goldsmith Omprakash, P. W. 4, an employee of the firm Jaipur Printers. The papers for counterfeiting the notes were supplied by Govind Narain. Forged notes were got printed with the help of block Exs. 21, 21-A and 21-B by the accused Shyam Sunder through some press. Accused Shyam Sunder kept some of the printed notes with him at his place and made over a few to the accused Chhuttanlal to design them after giving finishing touches, so that they might look like genuine currency notes. Accused Chhuttanlal finally prepared some notes and gave them to the accused Amar and Indermal for use. He also gave a few notes to the accused Ayal Das (approver). On receipt of information from Hanuman, P. W. 1, the police deputed P. W. 17 Tilumal to watch the specific activities of Ayal Dass.
On 24th June 1961, Bhanwar Singh informed Mr. N. C. Dutt S. P. (C. I. D.) that the currency notes had already been counterfeited and were ready for circulation in the market. On 28th June 1961, Tilumal supplied information to Mr. Dutt that Ayal Das had left for Ajmer by bus presumably with the object of circulating counterfeit notes. Mr. Dutt then personally left for Ajmer with some Police Officers as also with Tilumal. The police recovered two currency notes of the denomination of Rs. 100/- each, from the possession of Ayal Das, under recovery memo Ex. P.-10, dated 28th June 1961. On 28th June 1961, accused Chhuttanlal was arrested. Simultaneous raids were carried out in the house of the accused Chhuttanlal and Shyam Sunder, 166 counterfeit currency notes of the denomination of Rs. 100/- each and certain instruments and materials, meant for counterfeiting currency notes were recovered at the house of Chhuttanlal, under memo Ex. P. 12, dated June 29, 1961. Four of these notes were complete and the residual were incomplete. The police also recovered 65 forged currency notes of the denomination of Rs. 100/- each from the house of the accused Shyam Sunder. Accused Govind Narain was arrested on July 10, 1961, He furnished information to the police that two litho-stones meant for forging currency notes, were available at his house. That information was reduced to writing and is marked Ex. P-16, dated July 10, 1961. In pursuance of that information, the police recovered two litho stones from the house of the accused Govind Narain, under memo Ex. P-17 of the same date. The police also got recorded the confessional statement of the accused Govind Narain under Section 164, Criminal P. C., on July 22, 1961 : vide Ex. P-8. During the investigation it was found that the accused Chhuttanlal had been previously convicted for offences under Sections 489A and 120B, Penal Code, by the Special Tribunal, Jodhpur, in March 1936, and under Section 489A, by the High Court of Hyderabad in June 1932. It was further found that the accused Chhuttanlal some time before June 1961, had counterfeited currency notes of the denominations of Rs. 5/- and Rs. 100/- each by using litho-stones recovered from the house of accused Govind Narain and with the help of the accused Amar, Indermal and Ayal Das uttered them in the market.
2. As the stock of litho-stone notes had been exhausted and as it took pretty long time in counterfeiting currency notes by the litho-process, it was conspired by the accused persons to counterfeit currency notes by getting them printed in some press with the help of blocks. The accused Amar and Indermal were also arrested. Forged notes, other materials and instruments recovered from the accused Chhuttanlal. Shyam Sunder and Govindnarain as also from the accused Ayal Das were sent by the police to the Currency Notes Press, Nasik Road, for expert opinion. Mr. B. N. Kulthe, Assistant Supervisor and Expert in Detection of Forged Currency and Bank Notes, sent his reports Ex. P-5 (39/C/J/3) 8764 dated December 8, 1961, Ex. P-6 (39/C/J/3) 8772, dated December 8, 1961, Ex. P-7 (39/C/L/2) 8768, dated December 8, 1961 and Ex. P-7A (39/8776). dated December 8, 1961. On conclusion of investigation, all the six accused persons were challaned in the Court of First Class Magistrate, Jaipur, for offences under Sections 489B and 120B, Penal Code. Accused Chhuttanlal, being a previous convict for similar offences was further challaned under Section 75, Penal Code. The said Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207A, Criminal P. C., and committed the accused to the Court of Sessions Judge, Jaipur City, wherefrom the case was transferred to the Court of the Additional Sessions Judge, Jaipur City No. 2 for trial.
3. The accused pleaded not guilty to the various charges under the aforesaid sections of the Indian Penal Code.
4. In support of its case, the prosecution examined 29 witnesses. In his statement, recorded under Section 342, Criminal P. C., the accused Shyam Sunder nude a total denial of the offences with which he stood charged. He has deposed that Hanuman is on inimical terms with him. He had had litigation with Hanuman's friend Gulab Chand. He has also stated that other witnesses gave false statements against him. The accused Govind Narain denied to have committed any offence. He retracted his confessional statement, dated September 22, 1961, marked Ex. P-8. Amar, besides denying the offences with which he was charged, said that Ayaldas owed money to him, and therefore, he gave an incorrect statement against him, He has also said that Ayaldas made a wrong statement and so also Nanagram. Chhuttanlal denied to have committed any offence. He, however, admitted that he is a previous convict. Hanuman and Bhanwar Singh came to him under the pretext of getting certain curtains repaired and they put a bag with him. The satchel contained the . materials recovered from his possession. As the accused Indermal died after the appeal having been preferred in this Court, it is not necessary to refer to his statement here. The accused Shyam Sunder in his defence examined 14 witnesses, Chhuttanlal examined one. Govind Narain also produced one defence witness,
5. In the course of trial, the prosecution submitted an application on February 1, 1963, to the trial court for tendering pardon to the accused Ayaldas, under Section 338, Criminal P. C., with a view to obtaining his evidence as he was directly concerned in the activities of the gang. Learned Additional Sessions Judge, Jaipur City, by his order, dated February 19, 1963, acceded to the request of the prosecution and tendered pardon to Ayaldas, on the condition of his making a full and true disclosure of all the relevant circumstances relating to the offences. Consequently the name of Ayaldas was removed from the array of the accused persons and he was examined as a prosecution witness as P. W. 27, By his judgment, dated August 28, 1963, the Additional Sessions Judge, Jaipur City, acquitted all the accused of the offence under Section 120B, I. P. C. He acquitted Shyam Sunder, Amar, Indermal and Govind Narain of the other offences with which they were indicted. The accused Chhuttanlal was convicted under Sections 489A, 489B, 489C and 489D, I. P. C., and sentenced to undergo rigorous imprisonment for five years for each of the offence. All the sentences were directed to run concurrently. The recovered materials were ordered to be confiscated and sent to the Government of India, Currency Notes Press Nasik, after the expiry of the period of appeal. Dissatisfied with the above judgment, the State Government has filed this appeal.
6. Learned Deputy Government Advocate has strenuously argued that the offence of criminal conspiracy under Section 120B, I. P. C. stands fully established against the accused Chhuttanlal, Govind Narain, Shyam Sunder and Amar and, therefore the order of acquittal passed by the trial court in their favour should be quashed, and they should be punished adequately. Counsel for the State Government further urged that Govind Narain should also be convicted of offence under Section 489D, I. P. C. and appropriate sentence be awarded to him. Learned Counsel for the accused Chhuttanlal, Govind Narain and Shyam Sunder supported the judgment of the trial court. Mr. P. N. Dutta, counsel for the accused Amar, withdrew from the case on the ground that he had had no instructions from his client to argue it out. Amar did not put in any personal appearance. As stated above, Indermal died in the course of the pendency of the appeal.
7. The points for determination in this case are : (1) whether the accused Chhutanlal, Govind Narain, Shyam Sunder and Amar are guilty of the offence under Section 120B, I. P. C., and (2) whether the accused Govind Narain has been wrongly acquitted of the offence under Section 489D, I. P. C.
8. To establish a charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the parties in pursuance of it. Where the agreement is one to do or cause to be done an act which is itself an offence, no overt act, i. e., any act done by one of the parties to the agreement in pursuance of it, need be proved. The crime of criminal conspiracy is established once such an agreement is proved. Hence where the conspiracy alleged is one to commit a series of crimes, mere proof of an agreement between the accused is enough to sustain a conviction and proof of overt act is not strictly required. In case of criminal conspiracy direct evidence will be seldom forthcoming and it will be necessary to look at the circumstances to see whether the conspiracy actually existed. In alternative words, a conspiracy is generally a matter of inference, deducible from certain criminal acts of the parties concerned.
9. It is now to be seen whether in the light of the above background, there exists specific proof against the accused persons that they individually participated in a particular design to do a particular criminal thing.
10-14. (The Court considered the evidence of search and the report made by the Superintendent of Police and held it untrustworthy and not free from doubt and proceeded).
15. It is a settled law that an accomplice is competent to give evidence under Section 133, Evidence Act. But according to Section 114, Illustration (b), Evidence Act, it is always unsafe to convict on his testimony alone. The court will, as a matter of practice, not accept the evidence of such witness without corroboration in material particulars. There should be corroboration of the approver in material particulars and qua each accused : vide R. v. Boyes (1861) 9 Cox. C.C. 32, Bhuboni Sahu v. King AIR 1949 PC 257, R. v. Baskerville (1916) 2 KB 658 and Bhiva v. State of Maharashtra : 3SCR830 .
16. It is also well settled that the court in the first instance has to satisfy itself that the statement of the approver is credible in itself and that there is evidence other than the statement of the approver that the approver himself has taken part in the crime, Secondly, after the court is satisfied that the approver's statement is credible and his part of the crime is corroborated by other evidence, the court seeks corroboration of the approver's evidence with respect to the part of the other accused persons in the crime and this evidence has to be of such a nature as to connect the other accused with the crime : vide Saravanabhavan v. State of Madras : 1966CriLJ949 . Thus, it is to be remembered that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver, then there is an end of the matter. In other words, approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness. If this test is satisfied, the second test is that his evidence receives sufficient corroboration. This test is special to the case of weak or tainted evidence like that of an approver.
17-19. Court then considered the evidence of the approver and other witnesses and proceeded further.)
20. From the evidence discussed above, it cannot be said that the prosecution has proved, beyond reasonable doubt, that there existed a party which indulged in criminal conspiracy to commit offences relating to currency notes.
21. We may now deal with Govind Narain's confessional statement, marked Ex. P-8, dated July 22, 1961. In this connection, it may be pointed out that as a result of the provisions contained in Section 30 of the Evidence Act, confession of a coaccused has to be treated as amounting to evidence in a general way. It cannot : be said to be an evidence as defined by Section 3 of the Evidence Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Thus, the confession of a co-accused cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feel the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence : vide Haricharan v. State of Bihar : 1964CriLJ344 .
22. Now it is to be seen how far the confessional statement of the accused Govind Narain Ex. P-8, dated July 22, 1961, can be believed in. Govind Narain was in the police custody from July 10, 1961, to July 21, 1961. Recoveries from his house had already been made on July 10, 1961, under memo Ex. P. 17. It is in the judgment of the trial court that Govind Narain was kept in a separate custody with effect from 10th July, 1961, onwards. Abdul Rashid P. W. 29, Inspector C. I. D., has stated that Govind Narain remained in his custody. Neither P. W. 15 Deva Singh nor P. W. 29 Abdul Rashid has made any attempt to explain this unusual circumstance of keeping Govind Narain in a separate custody. It was the duty of the prosecution to positively establish that the confession was voluntary and for that purpose it was necessary to prove the circumstance under which this unusual step was taken. There being no such evidence, we are unable to act upon the confessional statement Ex, P-8 as a voluntary confession. In this connection, reference is made to Nathu v. State of Uttar Pradesh : 1956CriLJ152 . In that case appellant Nathu was kept in separate custody and thereafter he made a confession, No explanation was offered by the prosecution for keeping the appellant in a separate custody. Their Lordships held that in the unusual circumstances of the case, the confessional statement was not dependable.
In this case, it is given in the confession that blocks were prepared at the house of the accused Govind Narain and then they were taken along with the litho stones to Jaipur. Hanuman P. W. 1 on the other hand has said that on the litho-stones two photos of children were engraved on the one side and on its reverse 'Zamela' was engraved. Contrary to this, Om Prakash P. W. 4 has said that he prepared or cut the zinc plates. Om Prakash has also said that this act was done in the presence of Chhuttanlal and Shyam Sunder. This fact is not mentioned in the confessional statement. In the confessional statement it is described that Chhuttan showed front portion of the block to Shyam Sunder. As against this, Om Prakash says that blocks were cut in the presence of Shyam Sunder and Govind Narain. In the confessional statement it is given that Ayaldas Singhi purchased forged notes of the denomination of Rs. 100 in lieu of Rs. 50 each. At that time Indermal and Shyam Sunder were not there. Ayaldas says that Indermal, Govind Narain and Shyam Sunder were there at that time. Again, Ayaldas has stated that Shyam Sunder brought two bundles of notes, one bundle was given to Chhuttan. Shyam Sunder was told by Chhuttan that one bundle should be kept with him and that he would take the same from him as and when required. In the confessional statement it is mentioned that Shyam Sunder brought about 150 forms of the currency notes and the same were given by him to Chhuttan. Shyam Sunder further said that some currency notes were lying with him at his house and Chhuttan told Shyam Sunder to get printed a thousand currency notes more. These discrepancies demonstrate that there are glaring inconsistencies between the prosecution story as unfolded by its witnesses and the confessional statement. No reliance can, therefore, be placed upon the retracted confessional statement. It may also be mentioned here that Shri S. N. Dave, P. W. 3, Magistrate, First Class, Jaipur, did not observe any of the formalities in accordance with the provisions of Section 164, read with Section 364, Criminal P. C. He did not make a note that he told the accused that he was a Magistrate and that he was not bound to make a statement and that if he made it, the same could be used against him. He also did not ask Govind Narain as to when he was arrested. He also did not make a note that after the statement was recorded, he would not be sent back to the police custody. On July 22, 1961, when the confessional statement was being recorded, he did not give any time to Govind Narain to reflect and make up his mind. He started recording the confessional statement in his chamber.
23. The act of recording confession under Section 64, Criminal P. C. is a very solemn act and in discharging duties under the said section, the Magistrate must take care to see that the requirements of Sub-section (3) of Section 164, Criminal P. C. are fully satisfied. It would of course be necessary in every case to put the questions prescribed by the High Court circular and the questions intended to be put should not be allowed to become a mere matter of mechanical inquiry. The whole object of putting questions to an accused person is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, vide Sarwan Singh v. State of Punjab : 1957CriLJ1014 .
24. In the present case the confession does not appear to be voluntary nor was it properly recorded strictly in accordance with law, nor does the confessional statement appear to be in harmony with the prosecution version. No reliance, therefore, can be put upon such a confessional statement.
25. Seeing this case in its varied aspects and from all possible angles of view, there remains a doubt that the respondents are guilty of the offence under Section 120B, Penal Code. In a criminal case whenever there is a doubt, its benefit should go to the accused. It may also be mentioned here that since the recovery of the litho-stones from the possession of the accused Govind Narain does not establish a firm link with the preparation of the forged currency notes, the accused Govind Narain cannot be held guilty under Section 489D, Penal Code.
In the result, this appeal having no force stands dismissed.