These appeals are from the judgment of the Sessions Judge of the West Godavari Division dated 1st day of November 1937 in S.C No. 20 of 1937 in his file. The first appeal is by the 4th accused who is in jail. The next two appeals are by accused 2 and 3. The last appeal is by the Public Prosecutor and it is an appeal from the acquittal of the 5th accused in the case. There were five accused in the case of whom the 1st accused as well as the 5th accused were acquitted, and no appeal has been filed against the acquittal of the 1st accused.

I shall first deal with the appeal by the 4th accused. So far as he is concerned the evidence is overwhelming that he was found in possession of materials for counterfeiting Government currency notes of ten rupees denomination at Nidadavole Station when he was arrested. Several blocks containing engravings of the note were found inside his banian pocket when he was searched in the presence of mediators most of whom are quite respectable and against whom nothing can be said. So far as his conviction under S. 489-D, Indian Penal Code, is concerned, there can be no doubt that the evidence fully supports it. It may be mentioned in this connection that when he was asked to plead to the charges he stated that he would tell the truth and what happened, whatever the result may be, and when warned that he was not to be taken as an approver and that he was not bound to say anything except to plead to the charge, he said that “the offences were committed by other accused. I was also with them”. It is therefore clear that he had really no defence worth mentioning and as already observed his conviction under S. 489-D is obviously right. Whether the conviction under the first count of conspiracy is right or not will be considered when the case against the second and third accused are dealt with. The 2nd and 3rd accused have been convicted of conspiracy as well as of abetment of the possession of counterfeiting materials by the 4th accused. As regards the charge of abetment, there is really no meaning in it. It is not explained how the possession of counterfeiting materials by the 4th accused was abetted by any of the other accused. Unless the charge of conspiracy holds good, there is nothing in the charge of abetment of possession of counterfeiting materials by the 4th accused. The substantial charge against accused 2 and 3 is that of conspiracy, the conspiracy being to sell counterfeiting materials to P.W 5 who was employed by the Police to act as a sort of decoy to persons who were suspected to be engaged in making and using counterfeiting materials. The offence of conspiracy rests entirely on the evidence of P.Ws 1, 3 and 5, of whom P.Ws 1 and 3 are a Sub Inspecter and a Head Constable attached to the C.I.D and P.W 5 as already observed is a decoy employed by the C.I.D for the purpose of detecting counterfeiting cases. The evidence of conspiracy is mainly that of P.W 1, though there is some evidence relating to it given by P.Ws 3 and 5. Objection was taken during the course of the trial to the admission of evidence of statements made by the accused to P.W 1 in the course of his investigation. The objection was overruled by the learned Judge apparently on the ground that P.W 1 was not acting under Chap. 14 of the Criminal Procedure Code and that he was not investigating under S. 156 or S. 157 of the Code. The other objection that the statements amounted to confessions made to a Police Officer was also overruled on the ground that the statements did not amount to confessions. I am of opinion that both these objections were sound and should have been allowed. There can be no doubt that P.W 1 was investigating an offence at least after July 1936 when he received information that the 2nd accused was actively engaged in making blocks and forged notes. It was held in King Emperor v. Nilakanta(1) that the statements made to a C.I.D officer must be deemed to be statements made in the course of investigations by him though in that case the statements being oral, it was held that S. 162 would not apply. This view however has been overruled by the Full Bench decision in Thimmappa v. Thimmappa(2) according to which oral statements no less than written statements come within the purview of S. 162, Criminal Procedure Code. As regards the other objection, there can be no doubt that the statements were relied upon for the purpose of fastening guilt on the persons who made them, and though the statements taken separately may not amount to complete confession of any crime, nevertheless the statements taken together show that the accused who made them were engaged in criminal conspiracy and it was for the purpose of establishing this fact that the statements were sought to be used. It is therefore obvious that the statements did really amount to confessions made to a Police Officer. A number of documents such as police diaries have been admitted wholesale in evidence by the learned Judge in the course of the trial, namely, Exs. E to E. 4, O. 3 and O. 4, Exs. Q, R, S. DD and FF and BBBB. The learned Public Prosecutor does not defend this wholesale introduction of police diaries as evidence during the trial, and it is obviously indefensible. There can be no doubt that the case against accused 2 and 3 in particular has been seriously prejudiced by the admission of such inadmissible evidence during the trial, and I have little doubt that it was the admission of these documents that was mainly responsible for the opinions expressed by some of the assessors against accused 1, 2 and 3. The only admissible evidence really is that of P.Ws 1, 3 and 5 so far as it relates to the conduct of the accused, apart from the statements said to have been made by them. The evidence as to the conduct of these accused does not show beyond doubt that they were engaged in a criminal conspiracy. Even apart from this, it must be remembered that P.Ws 1 and 3 as well as P.W 5 though engaged really in detecting counterfeiting cases, were actually instigating persons who were suspected to be in possession of counterfeiting materials to sell them for a consideration; in fact the case for the prosecution was that all the time P.W 1 was engaged with the assistance of P.W 5 in obtaining a seller of counterfeiting materials, and that finally a bargain was struck whereby Rs. 3,300 was to be paid as the price of the blocks in question. It has been contended that these persons have been really instigating the commission of the very offence in respect of which the accused are charged as conspirators. It is urged that these witnesses come under the category of accomplices and that their evidence cannot therefore be accepted or acted upon in the absence of material corroboration. The question is not an easy one to decide, namely, whether P.Ws 1, 3 and 5 were acting as accomplices or acting merely as spies. The decision in Queen Empress v. Javecharam, which was followed in Hasura Singh v. Emperor, supports the contention of Mr. K.S Jayarama Aiyar on behalf of the appellant. On the other hand, the learned Public Prosecutor relies on the ruling in Emperor v. Chaturbhuj*(3), which is followed in Govinda Balaji v. Emperor(4). It is stated that there is no reported case decided by this High Court dealing with this point. It seems to me that the motive of the person who instigates is not the only determining factor; in other words, even if the object of the person who instigated another to commit a crime is to catch him in the act of committing the crime, instigation by him nevertheless amounts to abetment of the offence, and the abettor must be regarded as an accomplice when the object of the instigation is to make the offender commit the offence, and the person who was instigated actually commits the offence. In any case even if these witnesses are not to be regarded as accomplices in the strict legal sense, nevertheless their conduct has been such that their evidence requires to be viewed with caution. So far as their evidence concerns the 1st and the 5th accused, it has not been accepted by the learned Sessions Judge. The principal witness for prosecution is P.W 1 and he is described by the learned Judge as the principal actor in the drama. His story has not been accepted so far as it implicates accused 1 and 5 and that story is a very material portion of the story related by him in his evidence. It is not possible to say that while the material portion which relates to accused 1 and 5 cannot be accepted, the rest of it can be accepted without doubt or hesitation. That portion of the story which relates to accused 1 and 5 also implicates the other accused. It is in my opinion not safe to act upon his evidence. A good part of it is untrustworthy and cannot be acted upon. If the conviction of the 4th accused depended on the evidence of these witnesses, that also could not stand. But his conviction under S. 489-D rests not on the evidence of P.Ws 1, 3 and 5 but on the evidence of the mediators and others who were present when counterfeiting materials were found actually in his possession. Even otherwise, the evidence which implicates accused 2 and 3 is not of a strong character. The learned Sessions Judge refers to certain telegrams and letters which passed between the parties but most of them had not been proved satisfactorily; for instance Exs. B and G-2 which are pressed against accused 2 have not been proved to be in the hand-writing of the 2nd accused. So far as Ex. B is concerned, the Government expert is of opinion that it is not his hand-writing, and as regards Ex. G-2 the opinion that it is in the handwriting of accused 2 was given with some hesitation or misgiving. As regards the 3rd accused, reliance is placed on Exs. TT, K-3 and H. 3. Ex. TT contains a correction which is left unexplained, the correction being in another handwriting. The language employed in these and other documents is so vague that it is impossible to say that they refer to any projected sale of counterfeiting materials or to the commission of any other crime. Substantially the defence of these two accused was that they were employed as police informants by P.W 1 to assist him in getting information as to the persons who were in possession of counterfeiting materials. In other words, their defence was they were actively assisting P.W 1 and P.W 5 to discover the real offenders who were responsible for making and using counterfeiting materials and to bring the latter into touch with the former. It is alleged that they knew P.W 1 for some time and knew him to be a C.I.D Head Constable. No doubt P.W 1 was posing as one Suryanarayana, the supposed brother of P.W 5, for the purpose of infusing confidence among persons who were suspected to be in possession of counterfeiting materials. But the defence of accused 2 and 3 was that this was known to them to be a pose and that they knew the real personality of P.W 1 and knew him to be a C.I.D Head Constable engaged in the investigation of counterfeiting offences. If there is any truth in this defence, it is obvious that accused 2 and 3 are as innocent as P.W 1 himself. They were engaged along with him and to assist him in unearthing the conspiracy and the entire evidence against them is easily explained away once it is found that they were really assisting P.W 1 in his investigation. So far as the 2nd accused is concerned, the fact that he was assisting P.W 1 in his investigation appears to be established by certain admissions made by some of the prosecution witnesses; for instance P.W 15 says that the first thing which the 2nd accused did when he was arrested along with others was to cry out “why do you arrest me, I am one of you”. It is not suggested that P.W 15 is not telling the truth when he gives this evidence, and if it is true that the second accused cried out in this manner immediately on his arrest, along with the other accused, it renders highly probable his defence that he was really assisting P.W 1 all the time. It is not likely that he would have thought of this defence and made this cry if that was not the case. P.W 7 says that the 2nd accused had told him that P.W 1's name was Appa Rao, his assumed name being Suryanarayana and that he once heard accused 2 calling him by his real name, Appa Rao, when they were going to a coffee hotel. No doubt this witness was attempted to be treated as a hostile witness by the Public Prosecutor though the attempt failed. There is also evidence for the defence, namely, the evidence of D.Ws 2 to 5 to the effect generally that P.W 1 was well known as the Head Constable of the C.I.D in Nuzvid. On the whole, therefore, it appears to be more likely than otherwise that the 2nd accused's defence that he was only assisting P.W 1 in his enquiry is true. If so, it is obvious that he cannot be regarded as being one of the conspirators. The 3rd accused's version has not been supported to the same extent by evidence, but the evidence against him is easily explained away on this basis, that is to say, he was only assisting P.W 1 to get into touch with the person or persons who were in possession of counterfeiting materials. In any case the evidence against him is quite insufficient, in my opinion, to support a conviction for conspiracy. In fact there is no good reason to suppose there was any conspiracy so far as any of the accused other than the 4th accused was concerned. It follows from what I have said above that the convictions of accused 2 and 3 must be set aside and the conviction of the 4th accused also under the count of conspiracy and the sentence imposed on him under S. 120-B should also be set aside. The appeal of the 4th accused is otherwise dismissed. The appeals of accused 2 and 3 are allowed and their convictions and sentences are set aside and they are acquitted. So far as the appeal by the Public Prosecutor against the 5th accused is concerned, there is no substance in it; the acquittal of the 5th accused was right and that appeal is dismissed.

Orders accordingly.

N.R.R