Chattisgarh High Court
Ravishankar Tandon And Ors vs State Of Chhattisgarh on 2 January, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
CRA-194-2013, CRA-232-2013 & CRA-277-2013
Page 1 of 38
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 11.11.2022
Judgment Pronounced on : 02.01.2023
[Arising out of judgment dated 05.02.2013 passed in Sessions Trial
No.10 of 2012 (State of Chhattisgarh vs. Ravishankar and 03 others) by
the Court of Additional Sessions Judge, Mungeli, District Bilaspur (C.G.)]
Criminal Appeal No. 194 of 2013
1. Ravishankar Tandon, Son of Shivkumar Tandon, aged about
21 years, Resident of Odadabri, Police Station Kunda, District
Kabirdham, (Chhattisgarh)
2. Umend Prasad Dhrutlahre, Son of Faguram, aged about 25
years, Resident of Odadabri, Police Station Kunda, District
Kabirdham, (Chhattisgarh)
---- Appellants
Versus
State of Chhattisgarh, through the District Magistrate, Mungeli,
District Mungeli, (Chhattisgarh)
---- Respondent
------------------------------------------------------------------------------------------
For Appellant No.1 : Mr. Rishi Rahul Soni, Advocate For Appellant No.2 : Ms. Indira Tripathi, Advocate For Respondent-State : Ms. Ruchi Nagar, Dy. G.A.
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WITH Criminal Appeal No. 232 of 2013 Dinesh Chandrakar, Son of Ghasiyaram, aged about 42 years, Resident of Jagmal Chowk, Konda, Police Station Konda, District Kabirdham (Chhattisgarh) CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 2 of 38
---- Appellant Versus State of Chhattisgarh, through Police Station City Kotwali, Mungeli, District Mungeli, (Chhattisgarh)
---- Respondent
------------------------------------------------------------------------------------------ For Appellant : Mr. Gautam Khetrapal, Advocate For Respondent-State : Ms. Ruchi Nagar, Dy. G.A.
------------------------------------------------------------------------------------------
WITH Criminal Appeal No. 277 of 2013 Satyendra Kumar Patre, Son of Goutamdas, aged about 25 years, Resident of Odadabri, Police Station Kunda, District Kabirdham (Chhattisgarh)
---- Appellant Versus State of Chhattisgarh, through the Station House Officer, Police Station City Kotwali, Mungeli, District Mungeli, (Chhattisgarh)
---- Respondent
------------------------------------------------------------------------------------------ For Appellant : Mr. Gautam Khetrapal, Advocate For Respondent-State : Ms. Ruchi Nagar, Dy. G.A.
------------------------------------------------------------------------------------------
Division Bench Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Rakesh Mohan Pandey, JJ C.A.V. Judgment Sanjay K. Agrawal, J (1) Regard being had to the similitude of the questions of fact and CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 3 of 38 law involved; these batch of appeals are clubbed together being arising out of a common judgment dated 05.02.2013, passed in Sessions Trial No.10 of 2012 (State of Chhattisgarh vs. Ravishankar and 03 others), by the Court of learned Additional Sessions Judge, Mungeli and they have been heard analogously and are being disposed off by this common judgment. (2) Criminal Appeal No. 194/2013 has been filed by the appellants, namely, Ravishankar (A-1) and Umend Prasad Dhrutlahre (A-2) under Section 374(2) of Cr.P.C. questioning the impugned judgment of conviction and order of sentence dated 05.02.2013, whereby they have been convicted and sentenced as under:
Conviction Sentence U/s. 302/34 of IPC R.I. for life with fine of Rs.1,000/- each and, in default of fine, additional R.I. for 01 year each. U/s. 120-B of IPC R.I. for life with fine of Rs.1,000/- each and, in default of fine, additional R.I. for 01 year each. U/s. 201 of IPC R.I. for 03 years with fine of Rs.500/- each and, in default of fine, additional R.I. for 06 months each.
(3) Criminal Appeal No.232 of 2013 has been filed by the appellant, namely, Dinesh Chandrakar (A-3) under Section 374(2) of Cr.P.C. questioning the impugned judgment of conviction and order of sentence dated 05.02.2013, whereby he has been CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 4 of 38 convicted and sentenced as under:
Conviction Sentence U/s. 302/34 of IPC R.I. for life, with fine of Rs.1,000/- and, in default of fine, additional R.I. for 01 year. U/s. 120-B of IPC R.I. for life, with fine of Rs.1,000/- and, in default of fine, additional R.I. for 01 year.
(4) Criminal Appeal No.277 of 2013 has been filed by the appellant, namely, Satyendra Kumar Patre (A-4) under Section 374(2) of Cr.P.C. questioning the impugned judgment of conviction and order of sentence dated 05.02.2013, whereby he has been convicted and sentenced as under:
Conviction Sentence U/s. 302/34 of IPC R.I. for life with fine of Rs.1,000/- and, in default of fine, additional R.I. for 01 year. U/s. 120-B of IPC R.I. for life with fine of Rs.1,000/- and, in default of fine, additional R.I. for 01 year. U/s. 201 of IPC R.I. for 03 years with fine of Rs.500/- and, in default of fine, additional R.I. for 06 months.
(5) In short, the case of the prosecution is that: between 30.11.2011 to 03.12.2011, at Village Bhatgaon, within the ambit of Police Station Mungeli, accused-appellants herein, namely, Ravishankar (A-1), Umend Prasad Dhrutlahre (A-2), Dinesh Chandrakar (A-3) and Satyendra Kumar Patre (A-4), in furtherance CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 5 of 38 of their common object and intention, entered into criminal conspiracy and committed murder of Dharmendra Satnami (deceased) by strangulation and, further, in order to screen themselves from said act of committing murder of Dharmendra Satnami (deceased), threw the dead-body of Dharmendra Satnami (deceased) in pond and, thereby, committed the above stated offences punishable under Sections 302, 201, 120-B & 34 of IPC. (6) The further case of the prosecution is that: on 02.12.2011, Ramavtar (PW-01), father of Dharmendra Satnami (deceased), lodged missing person report at Police Station Kunda, as his son- Dharmendra went missing, upon which extensive search was made; during the course of said search and on the basis of suspicion, interrogation was made from the accused-appellants herein, wherein it was revealed that accused-appellants herein committed murder of Dharmendra Santnami at Bhatgaon River Road and threw his dead-body in the pond; thereafter, on 03.12.2011 at 10:00 AM, memorandum statement of accused- Ravishankar (A-1) was recorded vide Ex.P/10, similarly on the same day after half an hour, i.e., at 10:30 AM memorandum statement of accused Umend Prasad Dhrutlahre (A-2) was recorded vide Ex.P/11 and, on very same day, i.e. on 03.12.2011 at 11:00 AM, memorandum statement of accused- Dinesh Chandrakar (A-3) was also recorded vide Ex.P/ 12, and memorandum statement of Satyendra Kumar Patre (A-4) CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 6 of 38 was recorded on 06.12.2011 at 07:00 PM vide Ex.P/17, whereby they admitted that: accused- Dinesh (A-3) instructed accused- Ravishankar (A-1) and Satyendra (A-4) to murder Dharmendra Satnami (deceased) for an amount of Rs.90,000/- and promised them to give Rs.90,000/- after completion of work i.e. murder of deceased- Dharmendra Satnami; as such, on the instruction of Dinesh (A-3), accused- Ravishankar (A-1) and Satyendra (A-4) alongwith accused- Umend (A-2) hatched criminal conspiracy to kill Dharmendra and prepared a plan and, according to said plan, they called Dharmendra (deceased) to Mungeli on 30.11.2011 to purchase silver; thereafter, accused- Satyendra (A-4) brought one motor-cycle of his relative, upon which he alongwith Umend (A-2) reached Datgaon situated within the ambit of P.S. Mungeli and accused- Ravishankar alongwith Dharmendra (deceased) reached Mungeli by means of bus, upon which, Satyendra (A-4) took them from Mungeli to Datgaon on motor-cycle, where they all visited the house of Sunil, who is brother-in-law (Jija) of Satyendra (A-4) and, in the night, after having their food, they all left the house of Sunil on the pretext of returning to their home; thereafter, when they reached near Bhatgaon, Ravishankar (A-1), Satyendra (A-4) and Umend (A-
2) committed murder of Dharmendra (deceased) by strangulation and, thereafter, in order to screen themseleves from the said act of committing murder of deceased- Dharmendra, they tightened the dead-body of deceased by means of his clothes, put it into a CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 7 of 38 sack/gunny bag (bori) and thereafter by means of motor-cycle took the dead-body of deceased to the pond at Village Bhatgaon and threw there.
(7) Thereafter, at the instance of appellants, namely, Ravishankar (A-1) and Umend (A-2), on 03.12.2011 at about 16:05 hours (04:05 PM) and in presence Panch Witnesses of Narendra Kumar (PW-02) and Banshi (PW-04), the dead-body of Dharmendra Satnami was recovered from the pond of Bhatgaon and 'panchnama' (Ex.P/01) to that effect was prepared and identification of dead-body of deceased was also conducted vide Ex.P/02; thereafter, dehati marg. intimation (Ex.P/13), dehati nalishi (Ex.P/15) and FIR (Ex.P/33) were registered by the police; spot maps were prepared vide Ex.P/03 to P/05 and inquest proceedings were conducted vide Ex.P/06 and dead-body of deceased- Dharmendra was sent for postmortem examination, wherein Dr. Sudesh Ratre (PW-09), who conducted the postmortem of the dead-body of the deceased- Dharmendra, opined that the cause of death of deceased- Dharmendra is asphyxia due to strangulation and nature of death is homicidal in nature vide postmortem report (Ex.P/22); pursuant to memorandum statement of appellant- Satyendra (A-4), a mobile phone and motor-cycle were seized vide seizure memos (Ex.P/18 & P/19); further, from the place of occurrence/spot, leaves and soil alongwith full-pant, inner-wear (Baniyan), towel (gamcha) and wire CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 8 of 38 from the dead-body of the deceased were seized vide Ex.P/09; thereafter, aforesaid seized articles were sent for FSL examination and, as per FSL report (Ex.C1), on the leaves recovered from the spot and on the inner-wear (Baniyan), towel (gamcha) and wire, recovered from the dead-body of the deceased, blood has been found, however, on the full-pant recovered from the dead-body of the deceased and on the seat-cover of the motor-cycle, seized pursuant to memorandum statement of appellant- Satyendra (A-4), no blood was found. Thereafter, statements of witnesses were recorded under Section 161 of CrPC and after due investigation, the police filed charge-sheet against the appellants in the Court of Chief Judicial Magistrate, Mungeli (Chhattisgarh) and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law. The appellants/accused persons abjured their guilt and entered into defence stating that they have not committed the offence and have been falsely implicated in the case.
(8) The prosecution in order to bring home the offence examined as many as 18 witnesses and exhibited 37 documents apart from FSL report (ExC1) whereas, on the other hand, appellants neither examined any witness nor exhibited any document in support of their defence.
(9) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 9 of 38 appellants, namely, Ravishankar (A-1), Umend Prasad (A-2) and Satyendra Kumar (A-3) for offence under Sections 302/34, 120-B & 201 of IPC and sentenced them as mentioned hereinabove and further convicted appellant, namely, Dinesh Kumar (A-3) for offence under Sections 302/34 & 120-B of IPC and sentenced him as mentioned hereinabove vide impugned judgment, against which these three criminal appeals have been preferred questioning the legality, validity and correctness of aforesaid impugned judgment of conviction and order of sentence.
(10) Mr. Rishi Rahul Soni, learned counsel appearing for the accused-appellant Ravishankar (A-1) in CRA-194-2013 submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Sections 302/34, 120-B & 201 of IPC, as the prosecution has failed to bring home the above stated offences beyond reasonable doubt. He submits that recovery of dead-body of deceased- Dharmendra was not made pursuant to memorandum statement of appellant- Ravishankar (A-1) and, in fact, though appellant- Ravishankar (A-1) has made his alleged memorandum statement at 10:00 AM, but immediately after a gap of half an hour i.e. at 10:30 AM memorandum statement of appellant- Umend Prasad (A-2) has also been recorded and similarly at 11:00 AM memorandum statement of appellant- Dinesh (A-3) was recorded and, thereafter, the recovery of dead-body of CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 10 of 38 deceased has been affected on the same day in the evening at 16:05 hours (04:05 PM) from Bhatgaon Pond vide Ex.P/01, but as per the memorandum statement of appellant- Ravishankar (A-1) the dead-body of deceased was thrown into the pond of Dandgaon and, as such, the prosecution has failed to prove the fact that the dead- body of deceased has been recovered at the instance of the appellant- Ravishankar (A-1). The case of the prosecution is doubtful and the prosecution has failed to establish the chain of circumstances against the appellant- Ravishankar (A-1) and, therefore, he is liable to be acquitted from the charges under Section 302/34, 120-B & 201 of IPC. Hence, the appeal filed by appellant- Ravishankar (A-1) deserves to be allowed and the conviction and sentence of appellant Ravishankar (A-1) deserve to be set aside.
(11) Ms. Indira Tripathi, learned counsel appearing for appellant, namely, Umend Prasad (A-2) in CRA-194-2013 submits that the learned trial Court has committed grave legal error in convicting the appellant Umend Prasad (A-2) for offences under Sections 302/34, 120-B & 201 of IPC, as the dead-body of deceased- Dharmendra was found floating in Bhatgaon Pond whereas all the documents were prepared in Police Station Mungeli, which is apparent from the statement of Banshi (PW-04). Furthermore, Ram Kumar (PW-05), who is witness to memorandum statement of appellant- Umend CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 11 of 38 Prasad (A-2), has clearly stated that prior to recording of memorandum statement, the police has informed about the dead- body of the deceased. The conviction of the appellant- Umend (A-2) is solely based on his own memorandum statement, but no recovery has been made pursuant to memorandum statement of the appellant Umend (A-2), as recovery of dead-body of deceased has been affected on the basis of memorandum statement of appellant- Ravishankar (A-1) vide Ex.P/10. In support of her submission, learned counsel would rely upon the decision of the Supreme Court in the matter of Uppala Bixam @ Bixmaiah v. State of Andhra Pradesh1 and she would finally submit that the appeal filed by appellant- Umend Prasad (A-1) deserve to be allowed and he is liable to be acquitted from the charges under Section 302/34, 120-B & 201 of IPC.
(12) Mr. Gautam Khetrapal, learned counsel appearing for the appellants, namely, Dinesh Chandrakar (A-3) in CRA-232-2013 and Satyendra Kumar (A-4) in CRA-277-2013 would submit that from memorandum statement of appellant- Dinesh (A-3), recorded on 03.12.2011 vide Ex.P/12, nothing has been recovered/seized and such inculpatory statement allegedly made by appellant- Dinesh (A-
3) is inadmissible in the eye of law. He further submits that memorandum statement of appellant- Satyendra (A-4) was recorded on 06.12.2011 at 07 PM vide Ex.P/17, pursuant to which, 1 (2019) 13 SCC 802 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 12 of 38 only mobile phone and motor-cycle have been seized vide Ex.P/18 & P/19, but two seizure witnesses, namely, Mohit Angara (PW-07) and Lukchand Khande (PW-08) have turned hostile and they have not supported the case of the prosecution, as such, seizure of mobile phone and motor-cycle pursuant to memorandum statement of appellant- Satyendra (A-4) have not been proved. He relied on Asar Mohd. v. State of U.P. 2 and Bijender v. State of Haryana3 in support of his submission and prayed that appellants, namely, Dinesh Chandrakar (A-3) in CRA-232-2013 and Satyendra Kumar (A-4) in CRA-277-2013 are liable to be acquitted as the learned trial Court has committed grave legal error in convicting these two appellants for offence under Section 302/34 of IPC. (13) Per-contra, Ms. Ruchi Nagar, learned State counsel supported the impugned judgment of conviction and order of sentence and would submit that the prosecution has proved the offences charged against all the appellants herein beyond reasonable doubt by leading evidence of clinching nature. She would further submit that from the statements of Panch Witnesses, namely, Ramavatar (PW-
01) and Narendra Kumar (PW-02), who are father and brother of deceased, motive for the above-stated offences is clearly established, as appellant- Dinesh (A-4) quarreled with the deceased- Dharmendra over a land dispute and, therefore, they had 2 (2019) 12 SCC 253 3 (2022) 1 SCC 92 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 13 of 38 motive to commit the offences in question. Further, Ram Kumar (PW-05) and Ajab Singh (A-18), who are witnesses to memorandum statements (Ex.P/10 & P/11), have supported the case of the prosecution and proved the memorandum statements, pursuant to which dead-body of deceased was recovered. However, the investigating officer A.K. Nag (PW-15) supported the case of the prosecution and his statement before the Court remained un- controverted. As the prosecution has been able to prove the memorandum statements and seizure by which recovery of dead- body has been made and it is not a case of false implication, the learned trial Court has rightly convicted the accused-appellants for aforementioned offences, as such, all the appeals filed by the appellants deserve to be dismissed.
(14) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the original records of the learned trial Court with utmost circumspection.
(15) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report (Ex.P/22), wherein it has been opined that the cause of death of deceased- Dharmendra Satnami CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 14 of 38 is asphyxia due to strangulation and nature of death is homicidal in nature and the statement of Dr. Sudesh Ratre (PW-09), who has conducted the postmortem of the dead-body of the deceased. Taking into consideration the postmortem report (Ex.P/17) and the statements of medical experts examined, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of deceased- Dharmendra Satnami was homicidal in nature, as the same is correct finding of fact based on evidence available on record and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding. Even otherwise finding of homicidal death has not been questioned mainly on behalf of appellants herein.
(16) Now the next question would be whether the appellants herein are the perpetrators of the crime in question, as held by the learned trial Court ?
(17) It is the case of the prosecution that Dinesh Chandrakar (A-3) had some land dispute with deceased- Dharmendra Satnami and at the instance of appellant Dinesh (A-3) other appellants, namely, Ravishankar (A-1), Umend Prasad (A-2) & Satyendra Kumar (A-4) conspired together and murdered the deceased- Dharmendra and threw the dead-body in the pond of Bhatgaon. The learned trial Court has mainly relied upon the fact that pursuant to memorandum statement of Ravishankar (A-1), Umend Prasad (A-2) & Satyendra CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 15 of 38 Kumar (A-4) recorded vide Ex.P/10 to P/12, the dead-body of deceased- Dharmendra was recovered vide Ex.P/01 (i.e. recovery panchnama) and since no explanation has been offered by all of them (accused-appellants herein) in their statement under Section 313 of CrPC, relying upon the decision of Supreme Court in the matter of Ningappa Yallappa Hosamani and others v. State of Karnataka and others4, the appellants, namely, Ravishankar (A-1), Umend Prasad (A-2) & Satyendra Kumar (A-4) have been held guilty for committing murder of deceased- Dharmendra. (18) In order to consider the plea so raised at the bar, firstly it would be appropriate to notice the memorandum statements made by appellants, Ravishankar (A-1), Umend Prasad (A-2) & Satyendra Kumar (A-4) recorded vide Ex.P/10 to P/12 about commission of murder of deceased- Dharmendra and thereafter throwing his dead- body in the pond at Bhatgaon.
(19) The memorandum statement of Ravishankar (A-1) has been recorded by the Investigating Officer on 03.12.2011 at 10:00 AM, whereby it has been stated that: he alongwith Satyendra Kumar (A-
4) contracted with appellant-Dinesh (A-3) for committing murder of Dharmendra Satnami (deceased) to the tune of Rs.90,000/-, which money, Dinesh (A-4) promised to give them after his murder; thereafter, appellants, namely, Ravishankar (A-1), Umend Prasad 4 (2009) 14 SCC 582 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 16 of 38 (A-2) & Satyendra Kumar (A-4), at the instance of Dinesh (A-3), hatched criminal conspiracy and prepared a plan to commit murder of deceased- Dharmendra; thereafter, in furtherance of said plan, they called deceased- Dharmendra to Mungeli on the pretext of purchasing silver on 30.11.2011; thereafter, accused- Umend Prasad (A-2) and Satyendra Kumar (A-4) reached Datgaon on motor-cycle and visited the house of Sunil [relative of Satyendra Kumar (A-4)] and accused- Ravishankar (A-1) alongwith deceased- Dharmendra reached Mungeli by bus, upon which, Satyendra Kumar (A-4) took them from Mungeli and taken to Sunil's house at Datgaon by motor-cycle; in the night, after having their food, they all left the house of Sunil claiming to be returning home and, thereafter, Ravishankar (A-1), Umend Prasad (A-2) & Satyendra Kumar (A-4) committed murder of Dharmendra (deceased) by strangulation with the help of wire and gamcha (towel) and took the dead-body into a sack/gunny bag (bori) and threw it into the pond of Datgaon. (20) Thereafter, immediately after half an hour, on 03.12.2011 at 10:30 AM, memorandum statement of accused- Umend Prasad (A-
2) was recorded in the similar words as that of Ravishankar (A-1) and according to him the dead-body of deceased- Dharmendra was thrown into the pond situated between Datgaon and Bhatgaon and, thereafter, again after half an hour i.e. at 11:00 AM memorandum statement of appellant- Dinesh (A-3) was recorded wherein he CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 17 of 38 stated that he contracted with Ravishankar (A-1) and Satyendra (A-
4) for committing murder of Dharmendra Satnami (deceased) to the tune of Rs.90,000/- and promised them to give aforesaid amount of money after his murder and, on 01.12.2011, appellant- Ravishankar (A-1) informed him that his work has been accomplished, as Ravishankar (A-1) alongwith Umend Prasad (A-2) and Satyendra Kumar (A-4) committed murder of Dharmendra Satnami (deceased) and threw his dead-body in the pond situated between Datgaon and Bhatgaon. Thereafter, on 03.12.2011 at 16:05 hours (04:05 PM), in presence of Narendra Kumar (PW-02) and Banshi (PW-04), vide Ex.P/01, the dead-body of deceased- Dharmendra Satnami was recovered from the pond situated between Datgaon and Bhatgaon. Immediately, thereafter on 03.12.2011 at 16:08 hours, in presence of Narendra Kumar (PW-02) and Banshi (PW-04), identification of dead-body of deceased- Dharmendra was conducted vide Ex.P/02, wherein the dead-body was identified to be of Dharmendra Satnami and, thereafter, further investigation proceeded.
(21) The question for consideration would be whether such memorandum statements of accused-appellants particularly of Ravishankar (A-1) and Umend Prasad (A-2) recorded with a gap of half an hour and pursuant to which recovery of dead-body of deceased- Dharmendra Satnami was made, is admissible in law CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 18 of 38 under Section 27 of the Indian Evidence Act, 1872 (as information is given by more than one accused person).
(22) Section 27 of the Indian Evidence Act, 1872 constitutes a partial removal of the ban placed on the reception of confessional statement under Section 26 of the Indian Evidence Act, 1872. Section 27 lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of an offence, in the custody of a police officer, so much of information, whether it amounts to confessions or not, as relates distinctly to the fact thereby discovered, may be proved. It has been held by the Supreme Court that the basic idea embodied in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it relates in discovery of a fact it becomes a reliable information. Hence, the legislature has permitted such information to be used as evidence by restricting the admissible portion to the minimum [See: Rumi Bora Dutta v. State of Assam 5 and State of Maharashtra v. Damu6].
5 (2013) 7 SCC 417 6 (2000) 6 SCC 269 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 19 of 38 (23) The Supreme Court in the matter of Mohd Abdul Hafeez v. State of Andhra Pradesh7 has held that with reference to Section 27 of the Indian Evidence Act, when the investigating officer is dealing with more than one accused then he is required to state and record who gave the information and what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information, so as to provide incriminating evidence against the person.
(24) The Supreme Court thereafter in the matter of State (NCT of Delhi) v. Navjot Sandhu8 while considering the issue as to joint or simultaneous disclosure made by two or more accused persons in custody held that such a disclosure do not get out of the purview of Section 27 altogether and held in Para-14 as under:
"Joint disclosures
145. ...... 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them 7 AIR 1983 SC 367 8 AIR 2005 SC 3820 : 2005 (11) SCC 600 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 20 of 38 may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any breakalmost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel."
(25) The aforesaid principle of law laid with regard to joint or simultaneous disclosure by two or more accused persons in the matter of Navjot Sandhu (supra) was followed with approval by their Lordships of Supreme Court in the matter of Kishore Bhadke v. State of Maharashtra9. Their Lordships pertinently observed as under:-
"34. The fact where the dead body of deceased Raman was disposed, was disclosed by both the accused Nos.2 and 3 to the Investigating Officer in the presence of SK Idris (PW 2) one after another on 12th May 2003 at 3.05 hrs and 3.25 hrs. respectively. The discovery was made only after accused Nos.2 and 3 were taken together by the police to the spot in the neighbouring State (Madhya 9 (2017) 3 SCC 760 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 21 of 38 Pradesh), where the recovery Panchnama was recorded bearing Exh.76A. In other words, the disclosure of the relevant fact by accused No.3 to the Investigating Officer preceeded the discovery of dead body from the disclosed spot at the instance of both the accused Nos. 2 and 3. It was not a case of recording of statement of accused No.3 after discovery nor a joint statement of accused Nos.2 and 3, but disclosure made by them separately in quick succession to the Investigating Officer, preceding the discovery of the fact so stated. The fact disclosed by them, therefore, and the discovery made at their instance, was admissible against both the accused in terms of Section 27 of the Evidence Act."
(26) The Supreme Court in the matter of State of Maharashtra v. Suresh10 held that if an incriminating material is recovered pursuant to memorandum statement of accused, he is required to explain as to how else he came to know of such concealment and non- explanation is fatal to the accused and observed in Para-26 as under:
"26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities me criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can Offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the 10 (2000) 1 SCC 471 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 22 of 38 presumption is a well justified course to be adopted by the criminal court mat the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."
(27) The aforesaid principle of law laid down in Suresh (supra) was followed with approval in the matter of Ningappa Yallappa Hosamani (supra).
(28) Reverting to the facts of the case in light to aforesaid principles of law laid down by their Lordships of Supreme Court with regard to joint or simultaneous disclosure made by two or more accused persons for an offence, it is quite vivid that in the first memorandum statement made by accused- Ravishankar (A-1) on 03.12.2011 at 10:00 AM, he disclosed the fact that after murdering the deceased alongwith Umend Prasad (A-2) and Satyendra Kumar (A-4) they took the dead-body of deceased in a gunny bag and threw it into the pond of Datgaon, immediately after half an our, i.e. at 10:30 AM, the second memorandum statement of accused- Umend Prasad (A-2) was recorded, in which he also disclosed that after committing murder of deceased, the dead-body was taken into a gunny bag and they threw it in pond situated between Datgaon and Bhatgaon and, as such, pursuant to the memorandum statements of accused-appellants, namely, Ravishankar Tandon (A-
1) and Umend Prasad (A-2) recorded vide Ex.P/10 & Ex.P/11 respectively, recovery of dead-body of deceased- Dharmendra CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 23 of 38 Satnami was affected vide Ex.P/01 i.e. on 03.12.20211 at 04:05 PM in the pond situated in between Datgaon and Bhatgaon in presence of Narendra Kumar (PW-02) and Banshi (PW-04) and Ram Kumar (PW-05). Further, witnesses to memorandum statements, namely, Ram Kumar (PW-05) and Ajab Singh (PW-18) have supported the case of the prosecution, as such recovery of dead-body of deceased- Dharmendra Satnami on the basis of memorandum statements of accused-appellants, namely, Ravishankar Tandon and Umend Prasad recorded vide Ex.P/10 & Ex.P/11 respectively, has been duly established by the prosecution beyond reasonable doubt. Furthermore, Dastyabi Panchnama (Ex.P/01), which was recorded after recovery of dead-body of deceased, has also been proved by Narendra Kumar (PW-02) and Banshi (PW-04). (29) Thus, submission made on behalf of Ravishankar Tandon (A-
1) and Umend Prasad (A-2) that simultaneous disclosures one after the other with a gap of half an hour is inadmissible in evidence deserves to be rejected. As noticed hereinabove, the Supreme Court in the matter of Navjot Sandhu (supra) has categorically held that if information is given under Section 27 of the Indian Evidence Act, 1872 by two or more accused persons one after the other without any break or almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, there is no reason to exclude such a statement from the ambit of CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 24 of 38 Section 27 of the Indian Evidence Act, 1872. Similarly, in the matter of Kishore Bhadke (supra) the principle of law laid down in Navjot Sandhu (supra) has been followed by their Lordships of the Supreme Court with approval. Further, present is not a case of recording disclosure statements of accused-appellant Umend Prasad (A-2) after discovery of dead-body from the pond pursuant to the memorandum statement of appellant Ravishankar (A-1), as the aforesaid disclosure statements were recorded on 03.12.2011 between 10:00 AM and 10:30 AM and thereafter the dead-body of deceased- Dharmendra Satnami was recovered on the same day i.e. 03.12.2011 at 16:05 hours (i.e. 04:05 PM), therefore, fact so disclosed by appellants- Ravishankar (A-1) and Umend Prasad (A-
2) and discovery made pursuant to disclosure statements are admissible against both the appellants- Ravishankar (A-1) and Umend Prasad (A-2) under Section 27 of the Indian Evidence Act, 1872 in view of decision rendered by their Lordships of Supreme Court in the matters of Kishore Bhadke (supra) and Navjot Sandhu (supra). Furthermore, in statement under Section 313 of CrPC both the accused persons, Ravishankar (A-1) and Umend Prasad (A-2) have failed to explain as to how else they came to know of such a concealment of dead-body of deceased- Dharmendra Satnami, which they were required to explain in light of decision of Supreme Court in the matter of Suresh (supra) folllowed in the matter of Ningappa Yallappa Hosamani (supra).
CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 25 of 38 As such, the learned trial Court is absolutely justified in holding that it is accused-appellants Ravishankar (A-1) and Umend Prasad (A-2) who have concealed the dead-body of the deceased after his murder as they have failed to explain as to how they came to know about such concealment in their statement under Section 313 of CrPC. Thus, the learned trial Court is absolutely justified in convicting appellants- Ravishankar (A-1) and Umend Prasad (A-2) for above stated offences in question and in light of the above finding the judgment relied upon by the learned counsel in the matter of Uppala Bixam @ Bixmaiah (supra) is clearly distinguishable and inapplicable to the facts of the present case. (30) Satyendra Kumar Patre (A-4), who has filed CRA-277-2013, has also been convicted on the basis of his memorandum statement recorded vide Ex.P/17. On the basis of his memorandum statement, which was recorded on 06.12.2011 at 07:00 PM vide Ex.P/17, one mobile phone and motor-cycle of his relative/brother- in-law (behnoi), namely, Rajesh Bhaskar were recovered vide Ex.P/ 18 & P/19 respectively and said motor-cycle was used to shift the dead-body of deceased in a gunny bag from the place of incident to the pond of Datgaon/Bhatgaon, where the dead-body was thrown by the accused-appellants. Though Mohit Banjara (PW-07) and Lukchand Khande (PW-08), who were witnesses to said disclosure statement (Ex.P/17) and seizure memos (Ex.P/18 & P/19) have CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 26 of 38 turned hostile, but A.K. Nag (PW-15) the Investigating Officer has duly proved the said memorandum/disclosure statement of accused- Satyendra (A-4) and seizure of motor-cycle vide Ex.P/19, which was used in offence in question, and nothing has been brought in cross-examination to hold that the statement of Investigating Officer, namely, A.K. Nag (PW-15) is not trustworthy and, as such, he is a reliable witness [See: Rameshbhai Mohanbhai Koli and others v. State of Gujarat 11]. Thus, we are of the considered opinion that the learned trial Court is also justified in convicting accused- Satyendra (A-4) for offences in question. (31) Appellant- Dinesh (A-3) in CRA-232-2013 has also been convicted by the learned trial Court on the basis of his memorandum statement recorded vide Ex.P/12. A careful perusal of the memorandum statement would show that it has been recorded on 03.12.2011 at 11:00 AM and though pursuant to the memorandum statement of accused- Dinesh (A-3) no physical material/incriminating object has been recovered from his possession, but he has clearly stated that: on 03.11.2011 he entered into a contract with Ravishankar (A-1) and Satyendra (A-4) for committing murder of Dharmendra Satnami (deceased) for an amount of Rs.90,000/- and promised them to give aforesaid amount/money after completion of work i.e. murder of deceased- Dharmendra and, thereafter, on 01.12.2011, appellant- Ravishankar 11 (2011) 11 SCC 111 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 27 of 38 (A-1) informed him that his work (murder of deceased- Dharmendra Satnmai) has been accomplished, as he alongwith Umend Prasad (A-2) and Satyendra Kumar (A-4) murdered of Dharmendra Satnami (deceased) and threw his dead-body in the pond situated between Datgaon and Bhatgaon. Disclosure of this fact by Dinesh (A-3) of having conspired with other appellants, namely, Ravishankar (A-1), Umend (A-2) and Satyendra Kumar (A-4) in the crime in question to cause murder of deceased- Dharmendra Satnami and further the specific information by the appellant- Ravishankar (A-1) to appellant- Dinesh (A-3) on 01.12.2011 that deceased- Dharmendra has been killed and his dead-body has been thrown in the pond would be clearly admissible in evidence. (32) The Supreme Court in the matter of Mahboob Ali and another v. State of Rajasthan 12 has succinctly held that under Section 27 of the Indian Evidence Act, 1872 the discovery of the fact also includes the information regarding other accused persons to establish the charge of conspiracy. Their Lordships of Supreme Court in Mahboob Ali (supra) relied upon its earlier judgment in the matter of State of Maharashtra vs. Damu13, wherein it has been held as under:
"35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is
12 (2016) 14 SCC 640 13 (2000) 6 SCC 269 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 28 of 38 discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the Section. The decision of Privy Council in Pullukurri Kottayya vs. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motor cycle.
37. How the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motor cycle of A2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A2 Guruji had carried the dead body on that particular motor cycle upto the spot.
38. In view of the said discovery of the fact, we are inclined to hold that the information supplied by A2 Guruji that the dead body of Dipak was carried on the motor cycle up to the particular spot is admissible in evidence. That information, therefore, proves the prosecution case to the above-mentioned extent."
CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 29 of 38 (33) Further the Supreme Court in the matter of Charandas Swami v. State of Gujarat14 has considered its earlier judgment in the matter of Navjot Sandhu (supra), wherein their Lordships of Supreme Court framed following two questions for consideration:
"114. The interpretation of Section 27 of the Evidence Act has loomed large in the course of arguments. The controversy centered round two aspects:
"(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things -- concrete or non- concrete.
(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance.
The subsequent event of discovery by the police with the aid of information furnished by the accused -- whether can be put against him under Section 27.""
(34) The aforesaid two questions were answered by their Lordships of Supreme Court in Navjot Sandhu (supra) in following paras, which reads thus:
"121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered 14 (2017) 07 SCC 177 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 30 of 38 that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya (supra) (AIR p. 70, para 10) "clearly the extent of the information admissible must depend on the exact nature of the fact discovered"
and the information must distinctly relate to that fact. Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para 10) "Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused." (emphasis supplied) We have emphasised the word "normally" because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words: (AIR p. 70, para 10) CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 31 of 38 "If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect."
Then, Their Lordships proceeded to give a lucid exposition of the expression "fact discovered" in the following passage, which is quoted time and again by this Court: (AIR p. 70, para
10) "......In Their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (emphasis supplied)
128. ......A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence." (Udai Bhan vs. Sate of UP15). 15 AIR 1962 SC 1116 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 32 of 38 The Court then posed a question as to what would be the position if the physical object was not recovered at the instance of the accused. That issue has been answered on the basis of precedents, as can be discerned from Paragraphs 129 to 132 of the reported judgment."
(35) Further, in Navjot Sandhu (supra) their Lordships of Supreme Court with regard to conspiracy held in Para-76 as under:
"79. We do not find any such deeming provision in Section 10. No doubt, Section 10 rests on the principle of agency. But, it does not in terms treat the statements made and acts done by one conspirator as the statements or acts of all. Section 10 only lays down a rule of relevancy. It says that anything done or said by one of the conspirators in reference to the common intention is a relevant fact as against each of the conspirators to prove two things: (i) existence of the conspiracy and (ii) that they were parties to the conspiracy. As pointed out by the Privy Council in Mirza Akbar vs. King Emperor16, the thing done, written or spoken in the course of carrying out the conspiracy "was receivable as a step in the proof of the conspiracy". This dictum was approvingly referred to in the 1st Sardul Singh Caveeshar vs. State of Bombay17."
(36) The Supreme Court in the matter of Firozuddin Basheeruddin and others v. State of Kerala 18 held that conspiracy can be established on the basis of circumstantial evidence and as regard admissibility of evidence strict standards are not necessary as any declaration made by the conspirator in furtherance of and during pendency of a conspiracy though hearsay, is admissible against each co-conspirator. (37) The Supreme Court in the matter of Udai Bhan v. State of 16 AIR 1940 PC 176 17 1958 SCR 161 : AIR 1957 SC 747 18 (2001) 7 SCC 596 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 33 of 38 U.P.19 has clearly held that Section 27 is in the nature of a proviso to Section 26 which interdicts the provision of confessional statements made by a person in custody of the police. Section 27 partially removes the ban placed on the reception of confessional statements under Section 26. But the removal of the ban is not of such an extent as to absolutely undo the object of Section 26. All it says is that so much of the statement made by a person accused of an offence and in custody of a police officer, whether it is confessional or not, as relates distinctly to the fact discovered is provable and held as under:
".. the evidence in regard to the discovery of the key as well as the box was admissible in evidence under Section
27. The handing over of the key was not a confessional statement but the confession lay in the fact that with that key the shop of the complainant was opened and, therefore, that portion was inadmissible in evidence and only that portion was admissible which distinctly related to the fact discovered, i.e., the finding of the key. Similarly, there was no statement of a confessional nature in the recovery memo relating to it..."
(38) Now the question would be whether the learned trial Court is justified in convicting appellant-accused- Dinesh (A-3) in CRA-232- 2013 and other accused-appellants herein for offence under Section 302 of IPC with the aid of Section 120-B of IPC ?
(39) Section 120-A defines "criminal conspiracy" and sub-section (1) of Section 120-B defines punishment for criminal conspiracy. 19 AIR 1962 SC 1116 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 34 of 38 The Supreme Court in the matter of Major E.G. Barsay v. State of Bombay20 while noticing the significance of criminal conspiracy under Section 120-A has held that the gist of the offence is an agreement to break law. It has been further held that the parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.
(40) The Supreme Court in the matter of Yash Pal Mittal v. State of Punjab21 has approvingly quoted the observations made by their Lordships in the matter of Major EG Barsay (supra) and held that under Section 120-A of IPC the very agreement, concert or league is the ingredient of the offence. Their Lordships further held that it is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. 20 AIR 1961 SC 1762 21 (1977) 4 SCC 540 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 35 of 38 (41) In the matter of Saju v. State of Kerala22 while interpreting the provisions of Sections 120-A and 120-B of IPC, their Lordships of Supreme Court clearly held that to prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120-B it has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available.
(42) Reverting to the facts of the case in light of principles of law laid down by their Lordships of Supreme Court in aforementioned judgments qua defining the ingredients of criminal conspiracy under Section 120-A and 120-B of IPC, it is quite vivid that appellant Ravishankar (A-1) in his memorandum statement (Ex.P/10), which is proved by Ram Kumar (PW-05), has clearly disclosed that appellant-Dinesh (A-3) entered into criminal conspiracy with him and appellant- Satyendra (A-4) to kill Dharmendra Satnami for an amount of Rs.90,000/-, it was not in the knowledge of the police till said disclosure is made by the appellant- Ravishankar (A-1) and this fact is clearly admissible under Section 27 of the Indian 22 (2001) 1 SCC 378 CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 36 of 38 Evidence Act, 1872. Thus, as per said disclosure statement of Ravishankar (A-1) vide Ex.P/10, it is clear that fact of criminal conspiracy and involvement of Dinesh (A-3) alongwith other accused-appellants herein in the crime in question was brought to the knowledge of the police. Similarly, in the disclosure statement of Umend (A-2) recorded vide Ex.P/11 it has been clearly disclosed the manner in which murder of deceased- Dharmendra Satnami has been executed by stating that he and Satyendra (A-4) went to the house of Sunil ['Jija' of Satyendra (A-4)] at Datgaon by means of motor-cycle and Ravishankar (A-1) alongwith Dharmendra (deceased) reached Mungeli by bus, upon which, Satyendra (A-4) took them from Mungeli to Sunil's house at Datgaon on motor-cycle and in the night, after having their food, they all left the house of Sunil on the pretext of returning to their home and, thereafter, when they reached near Bhatgaon, he alongwith Ravishankar (A-1) and Satyendra (A-4) committed murder of Dharmendra (deceased) by strangulation and threw the dead-body in the pond situated between Bhatgaon and Datgaon. Similarly, in the memorandum statement of Dinesh (A-3) recorded vide Ex.P/12 he has confirmed the fact that he had conspired and contracted with Ravishankar (A-1) and Satyendra (A-4) to assassinate Dharmendra Satnai and the fact of assassination was informed by Ravishankar to him on 01.12.2011. Similarly, Satyendra (A-4) has also clearly disclosed in his memorandum/disclosure statement recorded vide Ex.P/17 that CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 37 of 38 gunny bag was taken from the house of his 'Jija' Sunil and motor- cycle of his Behnoi- Rajesh Bhaskar was taken by him, which was used to carry the dead-body of deceased from the place of incident to Bhatgaon/Datgaon pond. As such, these facts were not in the knowledge of the police prior to the information disclosed by the accused-appellants in their memorandum/disclosure statements recorded vide Exs.P/10 to P/12 & P/17, therefore, they are clearly admissible in terms of Section 27 of the Indian Evidence Act, 1872, in light of decision rendered by their Lordships of Supreme Court in the matters of Damu (supra) and Mahbobb Ali (supra). In that view of the matter the ingredients of Section 120-A & 120-B of IPC are fully satisfied and we are of the considered opinion that learned trial Court is absolutely justified in convicting appellant-accused- Dinesh (A-3) in CRA-232-2013 and other accused-appellants herein for offence under Section 302 of IPC with the aid of Section 120-B of IPC and in view of above stated discussion the judgments relied upon by the learned counsel in the matters of Asar Mohd. (supra) and Bijender (supra) are clearly distinguishable and inapplicable to the facts of the present case.
(43) In view of foregoing analysis, we do not find any merit in all these appeals and same are liable to be dismissed. Accordingly, CRA-194-2013 filed by accused-appellants, namely, Ravishankar Tandon (A-1) and Umend Prasad (A-2); CRA-232-2013 filed by CRA-194-2013, CRA-232-2013 & CRA-277-2013 Page 38 of 38 accused-appellant, namely, Dinesh Chandrakar (A-3) and CRA- 277-2013 filed by accused-appellant, namely, Satyendra Kumar Patre (A-4) are hereby dismissed. Since, accused-appellants, namely, Umend Prasad Dhrutlahre (A-2), Dinesh Chandrakar (A-3) and Satyendra Kumar Patre (A-4) are on bail, their bail bonds are forfeited and they are directed to surrender forthwith to serve out remaining sentence, failing which they will be apprehended in accordance with law.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
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