Delhi District Court
State vs . Hitender Singh @ Chotu Etc. on 16 September, 2010
FIR No.:356/07
Police Station: Hauz Qazi
U/s 302/120B IPC
SC No.: 33/2010
State Vs. Hitender Singh @ Chotu Etc.
16.9.2010
ORDER ON CHARGE Case of the Prosecution:
On 29.9.2007 a PCR call was received at police station Hauz Qazi vide DD No.15A regarding a man being shot at gali Arya Samaj, near mandir, Bazar Sita Ram, Delhi. The call was marked to SI Mahmood Ali PS Hauz Qazi. After receiving the DD no.15A, another call was received from PCR vide DD No.16A. This call was also marked to SI Mahmood Ali. He alongwith SHO, Addl. SHO Inspector Anil Sharma and other staff rushed to gali Arya Samaj, Bazar Sita Ram, Delhi. Addl. SHO inspector Anil Sharma alongwith other staff reached the scene of crime near Badi Dharmshala, Bazar Sita Ram where blood was found on the ground in gali in front of house No. 2745. One empty shell of a 9 mm cartridge was also found near the scene of crime. From the enquiries on the spot it was revealed that somebody had shot Vijay Singh @ Vijji who had been taken to LNJP hospital. Some police personnels were deputed at the scene of crime and Addl. SHO rushed to the LNJP hospital where FIR No.:356/07 1/28 he collected the MLC of Vijay Singh Yadav who was declared brought dead by the doctors. No eye witness was found at the spot as well as in the hospital. Case u/s 302 IPC was registered. Crime team was called at the scene of crime. Clothes of the deceased were seized and Addl. SHO alongwith the staff came back to the scene of crime with witness Deepak Sharma who took the deceased to the hospital. Blood stains were collected from the spot and further investigation was done. On 30.9.2007 witness Parmod Singh and Niranjan Singh told the IO that one person had taken Vijay Yadav @ Vijji from his office after which Vijay Yadav was shot at Arya Samaj Gali. One witness Smt. Anju Gupta also stated that while she was on her way to Shiv Mandir, gali Arya Samaj, she saw five six men including three local youths surrounding Vijay Yadav @ Vijji at gali Arya Samaj, Bazar Sita Ram but she did not know their names and addresses. One Dheeraj Sharma also stated that he also saw the incident at gali Arya Samaj, Delhi. Sh. Amar Singh Yadav, father of the deceased also stated that on 29.9.2007 at about 7.30 pm he had seen his son Vijay Yadav with some strange persons. The dead body was sent for postmortem and after postmortem the same was handed over to the relatives. On 01.10.2007 the investigation of the case was handed over to Inspector Rajender Dubey of PS Hauz Qazi During investigation he came to know the names of some missing local youths as Bhisham @ Chintu, Vinod @ Gola. It was learnt that the deceased had been involved in a financial dispute between one Vijay Bansal and someone else who was FIR No.:356/07 2/28 known to the accused Gopal Krishan Aggarwal. On 9.10.2007, the investigation of this case was transferred to Crime Branch. During investigation it was revealed that suspects Vinod @ Gola, Bhisham @ Chintu, Desraj and Deepak @ Chowda were the persons who had fled from their houses and were missing since the day of the incident. Witnesses also confirmed that they saw suspects Vinod @ Gola, Bhisham @ Chintu, Desraj @ Desu and Deepak @ Chowda at the scene of crime and near the deceased on the day of the incident alongwith some other persons. It was also learnt that Vijay Singh @ Vijji had financial dispute with Gopal Krishan Aggarwal and one Vijay Bansal. It was further learnt that Gopal Krishan Aggarwal hired a criminal named Hitender @ Chotu and his gang members to settle this financial dispute. During investigation it was found that Deepak @ Chowda was an active member of Hitender @ Chotu gang and he lived at Bazar Sita Ram, Delhi. During investigation it further revealed that Vinod @ Teda who was working with Gopal Krishan Aggarwal was the friend of Vinod @ Gola. Gopal Krishan Aggarwal had sent Vinod @ Teda to arrange some criminal to settle the financial dispute with Vijay Bansal. Vinod @ Teda told this fact to Vinod @ Gola who in turn arranged a meeting between Gopal Krishan Aggarwal and the criminals namely Deepak @ Chowda alongwith their gang member who used to often visit Gopal Krishan Aggarwal at his office. Mobile number of suspect Vinod @ Gola was obtained. During investigation it was further revealed that Hitender @ Chotu, Sumit @ FIR No.:356/07 3/28 Dimple Tyagi were notorious criminals who had committed numerous sensational cases of dacoity, attempt to murder, murder extortion etc in Delhi and U.P. From call detail analysis and IMEI number search of mobile phone belonging to suspect Vinod @ Gola, it was found that Vinod @ Gola's telephone was activated in Uttranchal after the murder of Vijay Singh @ Vijji. It was found that Vinod @ Gola had called up some contacts at Bazar Sita Ram, Delhi by using the same number but using different IMEIs. Call detail analysis indicated that suspects had been moving in Uttranchal after committing murder of Vijay Singh @ Vijji. Raids were conducted but in vain. During the raids it was revealed that Sumit @ Dimple a suspect in this case was killed in a police encounter on 22.10.2007 in Meerut. On 25.11.2007 SI Shyam Sunder informed that he alongwith his staff had apprehended Vinod @ Gola and Bhisham @ Chintu near petrol pump, Bhajanpura, Delhi. After interrogation, both the suspects were arrested in this case and during investigation both the accused persons disclosed that they alongwith their other associates namely Hitender @ Chotu, Sumit @ Dimple Tyagi, Deepak @ Chowda, Desraj @ Desu, Krishanpal @ Fauzi, Praveen @ Jojo, Pramod @ Pammi and Parveen Kohli killed Vijay Singh in a conspiracy with Gopal Krishan Aggarwal, Rishipal @ Pappu and Ashok Jain. Both the accused persons identified the place of incident and the hotel where they alongwith their other coaccused planned to kill Vijay Singh @ Vijji.
FIR No.:356/07 4/28
During police remand, at the instance of accused Vinod @ Gola, the mobile phone instruments were seized. A gold chain with locket belonging to the deceased Vijay Singh was also seized from the premises of Rajender Singh at the instance of accused Bhisham @ Chintu. The accused persons identified the place of occurrence and the hotel where the plan to kill Vijay Yadav was made. Mobile phone of accused Bhisham @ Chintu was also seized. Accused Vinod @ Gola and Bhisham @ Chintu admitted that Gopal Krishan had hired Hitender @ Chotu and his gang to threaten Vijay Bansal and gave Rs. 3 lacs to Hitender @ Chotu through deceased Vijay Singh @ Vijji. The deal between Gopal Krishan and Hitender @ Chotu was for more than Rs. 3 lacs and when the dispute had been settled, Hitender @ Chotu asked for the remaining amount of money from Gopal Krishan who refused to pay the remaining amount to Hitender @ Chotu and allegedly told him that he had paid all the money to the deceased Vijay Singh. All the three persons namely Ashok Jain, Rishipal and Gopal Krishan were involved together and had made a nexus to eliminate Vijay Singh Yadav @ Vijji and his brother Abhay Singh Yadav. Ashok Jain had previous political and personal enmity with Vijay Yadav. Vijay Singh @ Vijji had misbehaved with Ashok Jain on numerous occasions publically and openly. Ashok Jain believed that Abhay Singh and Vijay Singh were behind the anti corruption case of CBI against him and he believed that he had lost his ticket of Delhi Assembly due to the propaganda of Abhay Singh and Vijay Singh and Bhisham @ FIR No.:356/07 5/28 Chintu used to look after the work at the office of Ashok Jain and Rishipal has a business partnership with Abhay Singh but their mutual relationship had not been good since the past few years. There was a dispute between both of them over the property in the Walled City area. Rishipal had double crossed Abhay Singh and told Ashok Jain that Abhay Singh and Vijay Singh had been behind the CBI Anti Corruption case against him. Statement of the witnesses further revealed that Rishipal was also annoyed with Abhay Singh and Vijay Singh for lodging a kidnapping case against the cousin brother of Rishipal. On the day of incident, Abhay Singh had called up Rishipal and had informed him about the incident. Rishipal called one Krishan Kumar @ Kuku who in turn immediately called up Ashok Jain to inform about the shooting in gali Arya Samaj. Gopal Krishan Aggarwal and Rishipal both were arrested on 7.12.2007. During investigation Gopal Krishan Aggarwal admitted that he had enmity with the deceased and he had hired Hitender @ Chotu to settle the financial dispute with Vijay Bansal. Gopal Krishan Aggarwal gave Rs. 3 lacs to Hitender @ Chotu through Vijay Singh @ Vijji and the final settlement was done at police station Civil Lines. Inspector Vipin Kumar Bhatia, corroborated this fact also. Gopal Krishan also disclosed that he had a secret pact with Ashok Jain and Rishipal regarding the murder of Vijay Singh @ Vijji. As per the statement of witnesses Gopal Krishan and Ashok Jain used to hold secret meetings. The copy of the final settlement between Gopal Krishan Aggarwal and Vijay Bansal was seized FIR No.:356/07 6/28 at the instance of Gopal Krishan from his office at gali Arya Samaj Bazar Sita Ram, Delhi. Inspector Vipin Kumar Bhatia from PS Civil Lines also handed over the copies of the settlement which was taken into possession. Accused Rishipal disclosed that he had a business partnership with Abhay Singh Yadav, brother of the deceased but despite their partnership, relations between them were not good and Rishipal had a grudge against Vijay Yadav. Rishipal also admitted the role of Gopal Krishan and Ashok Jain in the conspiracy to kill Vijay Yadav. On the day of incident, Rishipal was near the scene of crime and immediately reached there. During investigation, the guest registers of the hotel were seized. During interrogation accused Bhisham @ Chintu disclosed that he had called Rishipal and Ashok Jain from a STD shop Delhi road, Sonepat after committing the murder while they were leaving Delhi. He told them that he alongwith others had killed Vijay Yadav. Subsequently other accused persons were arrested. Accused Praveen Kohli refused to participate in the TIP. Accused Hitender @ Chotu also refused to participate in the TIP. Accused Hitender @ Chotu got recovered the Santro car which was used in the commission of the crime. One blood stained gold chain belonging to the Vijay Yadav was seized from the possession of accused Hitender @ Chotu. Accused pointed out the place of their stay as well as place of occurrence.
After completion of investigation, charge sheet was filed against the accused persons. Since the offence u/s 302 IPC is exclusively FIR No.:356/07 7/28 triable by the courts of Sessions, therefore, Ld. MM after supplying the documents committed the case to the court of Sessions.
I have heard Sh. Rajiv Mohan, Special PP for the state and Ld defence counsels for the accused persons at length on the point of charge and have carefully perused the record.
Submissions of Ld. Counsels for accused Persons: Ld. Counsels for all the accused persons have certain similarities in their arguments which can be discussed first. All the counsels have argued that as per the prosecution case itself, the different accused have different motives and reasons to kill the deceased and it is next to impossible to reconcile all these motives behind the commission of offence. They argued that for the purpose of their roles, accused no. no.1 to 5, 8, 10 and 11, can be clubbed in one category that they are the persons who committed the offence of murder where as accused Rishipal, Ashok Kumar Jain and Gopal Krishan Aggarwal can be clubbed in the category of the conspirator. They further argued that there is no evidence regarding the conspiracy and it is just a theory concocted by the prosecution in order to rope in the accused persons.
Counsel for the accused Gopal Krishan Aggarwal argued that accused Gopal Krishan Aggarwal is a sick person and suffering from several diseases and is a respectable person in the society. He has been roped in the present case on behest of the brother of the deceased as well as the investigation officer Inspector K.G. Tyagi as he failed to fulfil the illegal demands of FIR No.:356/07 8/28 Inspector K.G. Tyagi. He submits that accused Gopal Krishan Aggarwal has made numerous complaints against Inspector K. G. Tyagi due to which he is roped in the present case. He argued that accused has been implicated in the present case in connivance of the IO and the brother of the deceased and has been arrested as sting operation was carried out by the son of the accused Gopal Krishan Aggarwal. The case diary dated 16.10.2007 is not signed despite the orders of the court. No prima facie case is made out against the accused Gopal Krishan Aggarwal. If there had been financial dispute between Vijay Bansal and Gopal Krishan Aggarwal, then there is no reason for the accused to eliminate Vijay Yadav. The statement of the witnesses reveal that dispute was between Vijay Bansal and Ashok Gupta and Gopal Krishan Aggarwal had nothing to do with the same and the agreement arrived at Civil Lines also established the fact that there was no dispute between Gopal Krishan Aggarwal and Vijay Bansal. Vijay Bansal clearly stated that Deepak Jain took the responsibility for the payment and Vijay Bansal never stated anything against him. Said Ashok Gupta has not stated anything that he had some dispute with Gopal Krishan Aggarwal then how the question of criminal conspiracy can come into action. Even the statement of Inspector Vipin Kumar Bhatia is in this regard. Witnesses have not stated anything about the accused Gopal Krishan Aggarwal. As per the statement of brother of deceased also, no allegations are made against accused Gopal Krishan Aggarwal. Statement of Vinod Kumar @ Teda is FIR No.:356/07 9/28 full of contradiction and cannot be believed by the court. Similarly witness Harjeet Singh and Tek Ram also have not stated anything against the accused Gopal Krishan Aggarwal. There was no enmity with the accused and there is no reason as to why he would conspire to kill deceased. There are no allegations of any preparation of plan to commit murder and the allegations u/s 120 B IPC cannot come in isolation and they have to confirm to the provision of section 10 of Evidence Act.
Ld. counsel for the accused Rishipal argued that as per the statement of the brother of the deceased also,after the incident brother of the deceased himself made a call to the accused Rishipal and accused Rishipal reached at the spot and took the injured on the motorcycle but in the way when it was not possible to move the injured on the motorcycle then he shifted him in a TSR and took him to the hospital. Counsel for the accused argued that if the accused Rishipal would have been in conspiracy to kill Vijay Yadav, then certainly it is not possible for him to take the deceased to the hospital and since it was accused himself who took the deceased to the hospital, therefore, no adverse presumption can be drawn against him. He submits that there are no other allegations against accused Rishipal. As per prosecution, Rishipal made complaint against Ashok Kumar Jain on the basis of which a corruption case was initiated against Ashok Kumar Jain then how Rishipal can become a conspirator to kill Vijay Yadav along with said Ashok Kumar Jain. He further argued that neither the name of Rishipal nor Ashok Kumar Jain figured in conspiracy FIR No.:356/07 10/28 anywhere and none of the witness made any statement of conspiracy between the accused persons. Accused Rishipal is the partner of the brother of the deceased and there are number of transactions between them since 2002 and till date. Ld. defence counsel for accused Rishipal further argued that prosecution has penned down various theories regarding the motive of the crime which are contradictory and does not support the case of the prosecution. He further argued that despite the orders of the court, case diary dated 16.10.2007 is not signed which shows that it is manipulated and made afterwards to implicate the accused persons. So far as the statement of the other accused are concerned, then same is not admissible as per law of evidence and does not confirm to section 10 of Evidence Act. He argued that there is not a single iota of evidence to frame charge against the accused Rishipal. The court cannot become the mouth piece of the prosecution and the theories put forward by the prosecution are so inconsistent and improbable that they cannot go together and therefore accused is liable to be discharged. He argued that the assailants in the present case are not identified and in such circumstances, the motive also become irrelevant. There is no previous enmity shown between the deceased and the accused and for the purpose of conspiracy there must be some meeting of mind or otherwise between the assailant and the conspirator. He argued that the charge cannot be framed merely on the basis of motive and partnership between the accused and the brother of the deceased is still continuing which falsifies FIR No.:356/07 11/28 the case of the prosecution. He further argued that the charge sheet is like a complaint and the court cannot go beyond the same.
Ld. counsel for the accused Ashok Kumar Jain also argued that there is no motive attributed to the accused except that he had political rivalry with the deceased. He argued that coaccused Rishipal himself is the complainant in a corruption case against accused Ashok Kumar Jain. In such circumstances how both can hatch conspiracy to kill the deceased Vijay Yadav, same is highly improbable. He argued that none of the witnesses in their statement recorded by the police, have taken the name of Ashok Jain and Ashok Kumar Jain being a public figure if he received call from someone from Sonipat for few seconds, then that cannot be termed as conspiracy by the prosecution. The FIR was registered in 2007. Even till the filing of charge sheet, accused Ashok Kumar Jain was arrested just only one day prior to and there are no cogent evidence against the accused collected by the prosecution except the disclosure statement of the coaccused persons which are not admissible in evidence. He further argued that even after the arrest of the accused, his police custody remand was never taken by the IO and there is no substantial piece of evidence collected by the IO till date. So far as the enmity is concerned, then there is no direct evidence for the same. He argued that for the purpose of conspiracy there must be meeting of minds and hidden ideas in the mind of the conspirators but there is no evidence for the same on record. He argued that accused has been falsely FIR No.:356/07 12/28 implicated in order to exploit his political career.
Ld. counsels for the accused Hitender And Kishanpal have argued on the same lines and stated that there is no direct evidence against the accused persons and there is no independent witness. The witness cited by the prosecution are only the friends and family members of the deceased. Even if there was enmity between the parties, then same cannot be termed as conspiracy.
Counsel for the remaining accused persons argued that only one shell was found by the IO at the spot whereas deceased received seven bullets injured as per the MLC. He argued that none of the PWs took the name of the accused persons and refusal of TIP cannot be attracted against the accused persons as TIP is not a substantial piece of evidence.
Submissions of Ld. APP for the State: On the other hand, Ld. APP for the State argued that there are enough evidence against the accused persons to frame the charge. He submitted that there is TIP refusal on behalf of some of the accused persons but subsequently the recovery have been made at the instance of the accused persons. There is also subsequent identification of the accused by the witnesses. He further argued conspiracy can be gathered only by way of circumstantial evidence, there cannot be any direct evidence for the same. He argued that no doubt there is not a single motive in the present case and different accused had different motives to eliminate the FIR No.:356/07 13/28 deceased but the different motives do not weaken the case of the prosecution and merely because there are different motives attributed by prosecution to different accused is no ground for their discharge. He argued that from the statement of witnesses, prima facie there is enough evidence against the accused persons and conspiracy has also been established by the prosecution to charge the accused persons. Conclusion: It is a well settled principle of law that at the time of framing of charge, the court is required to see only a prima facie case. The court is not required to look into the probative value of the evidence at the time of framing of the charge. The fact that the brother of the deceased telephoned accused Rishi Pal who was near the place of incident and it was the accused Rishi Pal who took the deceased to the hospital, does not prove the fact that accused Rishi Pal cannot commit the offence. At this stage, no such presumption can be raised to absolve him of all the charges. The contention of the Ld. Addl PP for state that the presence of the accused near the scene of crime on the other hand establishes the case of the prosecution, cannot be brushed aside at this stage. The fact that various witnesses in their statements have taken the name of the accused persons at one stage or the another, shows the prima facie case against all the accused persons. Merely, because the witnesses cited by the prosecution are the relatives or the friends of the deceased or his family FIR No.:356/07 14/28 members, is no ground to disbelieve their testimony and to throw away the case of the prosecution at its threshold. Moreover, the fact regarding the financial transactions between the parties, is a question of fact and not of law which cannot be decided without their being an evidence of both the parties.
So far as, the criminal conspiracy between the accused persons to carry out the murder of Vijay Singh Yadav is concerned, it is well settled law that there cannot be any direct evidence for the criminal conspiracy.
In Manu/SC/0017/2003 in Criminal Appeal Nos. 1097,1117, 1141 and 150 of 1999 and 521/2000 titled as Ram Narain Poply, Pramod Kumar Manocha, Vinayak Narayan Deosthali and Harshad S. Mehta Vs. Central Bureau of Investigation and Ors, the Hon'ble Supreme Court has held that__ "120A___When two or more persons agree to do or cause to be done: (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof".
FIR No.:356/07 15/28
The elements of a criminal conspiracy have been stated to be:
(a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute required an over act. The essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no avert act need to be done in furtherance of the conspiracy and that the object of the combination need not be accomplished, in order to constitute and indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of means. The encouragement and support with coconspirators give to tone another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design, (see: American jurisprudence Vol. II See 23 P. 559).
For an offence punishable under Section 120B prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to FIR No.:356/07 16/28 be done illegal act: the agreement my be proved by necessary implication. Offence of Criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
In Halsbury's Laws of England ( vide 4th Ed. Vol. 11 page 44, page 58), the English Law as to conspiracy has been stated thus:
"Conspiracy consists in the agreement of two or more persons FIR No.:356/07 17/28 to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment of fine or both in the discretion of the Court.
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus rues in a conspiracy is the agreement to execute the illegal conduct, not the execution of it, it is not enough that two or more persons pursued the same unlawful object at the same time or in the same place: it is necessary to show a meeting of minds, a consensus to affect an unlawful purpose. It is not, however, necessary that each conspirator should have been communication with every other.'' There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (See: Bhagwan Swarup Lal Bishan Lal etc. vs. State of Maharashtra [AIR 1965 SC 682 at pa. 686] It was held that the expression ''in reference to their common intention'' in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope that the words ''in FIR No.:356/07 18/28 furtherance of'' in the English law: with the result, anything said, done or written by a coconspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only.
''as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it'' " In short, the section can be analysed as follows (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are member of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other: (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any of them; (4) it would also be relevant for the said purposes against another who entered the conspiracy whether it was said, done or written before the entered the conspiracy or after he left it, and (5) it can only be used against a coconspirator and not in his favour".
We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inference are normally deduced from acts o parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla V. State (Delhi Admn.) MANU/SC/0545/1980: FIR No.:356/07 19/28
1980 Cri LJ 965 held that no prove criminal conspiracy there must be evidence direct or circumstantial to show that there was and agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all the criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct FIR No.:356/07 20/28 evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference."
In Kehar Singh & Ors v. The State (Delhi Administration) [MANU/SC/0241/1988: Hon'ble Supreme Court has held that__ " Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not to be proved. Nor actual meeting of the two persons is necessary. Nor it is necessary to prove the actual words of FIR No.:356/07 21/28 communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other materials. (See: State of Bihar v. Paramhans MANU/BH/0161/1986 : 1987 (35) BLJR127 ). To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do so, so long as it is known that the collaborator would put the goods of service to an unlawful use. (See : State of Maharashtra V. Som Nath Thapa MANU/SC/0451/1996: 1996 Cri LJ2448)".
In Ajay Aggarwal vs. Union of India and Ors.
MANU/SC/0265/1993: 1993 Cri LJ 2516, it has been held that__ "...... It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected: and (3) FIR No.:356/07 22/28 a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case that an indictment for conspiracy must ''charge a conspiracy to do an unlawful act by unlawful means'' and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulchay v. Reg and House of Lords in unanimous decision reiterated in Quinn v. Leathem:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable of for a criminal object, or for the use of criminal means."
Hon'ble Supreme Court in B.G. Barsey v. State of Bombay MANU/SC/0123/1961: 1961 CriLJ 828 held that__ " The gist of the offence is an agreement to break the law. 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 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. Under FIR No.:356/07 23/28 Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or it if is prohibited by law."
In Yashpal Mittal v. State of Punjab MANU/SC/0169/1977 : the rule laid down by the Hon'ble Supreme Court is as follows:
" The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators 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 collaborator must be aware and in which each one of them must be interested. There must be unity of object of purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators."
In 2009 [2] JCC 1188 titled as Chaman Lal & Ors. Vs. State of Panjab & Anr., the Hon'ble Supreme Court held that__ FIR No.:356/07 24/28 " Penal Code, 1860 Sec. 120B__Criminal Conspiracy__ The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct or circumstantial evidence or by both __As direct evidence is rarely available therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of accused."
In MANU/SC/1010/2004 in Criminal Appeal no. 497 of 2001 and 46 of 2004 and SLP (Crl.) No. 1912/2003 titled as State v. Debendra Nath Padhi, the Hon'ble Supreme Court held that__ " Power for Trial Court to consider material filed by accused at the time of framing of charge__Validity of__Observations made in case of Satish Mehra V. Delhi Administration and Anr. that if accused succeeded in producing any reliable material at stage of taking cognizance or framing of charge which might fatally affect even very sustainability of case, it is unjust to suggest that no such material should be looked into by court at that stage__Although views expressed in Satish Mehra's case supported by accused__However, challenged by state on ground that observations in Satish Mehra's case amounted to upsetting well settled legal propositions and making nugatory amendments in Code of Criminal Procedure and would result in conducting a mini trial at stage of framing charge__Matter referred to decision by larger bench. Since at the stage of framing of charge roving and fishing inquiry is FIR No.:356/07 25/28 impermissible, held that if the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge which would defeat the object of the Code__Permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage is against the criminal jurisprudence____The expression hearing the submissions of the accused cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law__At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police__Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code held to be not correctly decided__Direction given to Trial Court to proceed from the stage of framing of charge and to expeditiously conclude the trial."
In Criminal Appeal No. 192 of 2010 titled as P. Vijayan vs. State of Kerala and Anr., the Hon'ble Supreme Court has held that__ " Existence of sufficient grounds against the Appellant and another accused to frame a charges__Materials at the hands of the prosecution sufficient or not are matters of trial__At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the Appellant__Trial will end in conviction or acquittal immaterial__High Court considered all relevant aspects and affirmed the Order of Trial FIR No.:356/07 26/28 Court - Appeal Dismissed."
Without giving an opportunity to the prosecution to prove its case regarding the conspiracy between the accused persons, the case of the prosecution cannot be thrown away on the presumption that there was / is no conspiracy between the accused persons. Merely, because accused Rishi Pal is the complainant in the corruption case filed against coaccused Ashok Jain, is no ground to believe that in future both the accused could not come together or cannot hatch a conspiracy to eliminate Vijay Singh Yadav.
The facts regarding financial dispute between Vijay Bansal, Ashok Gupta and G. K. Aggarwal, is a question of fact and not of law and the factum of motive is also a question of fact and not of law, which cannot be decided without there being an evidence of both the parties. The discrepancies in the statement of witnesses given to the IO under Sec. 161 Cr.PC is also a question of fact and not of law. So far as the direct evidence against accused persons is concerned then whether there is direct evidence or circumstantial / indirect evidence against the accused persons then same is also a question of fact and not of law. The statement of all the witnesses has to be read in toto and not in isolation. At this stage, the court cannot evaluate the statement of each and every witnesses separately without giving an opportunity to the prosecution to prove its case. Merely, because one of the coaccused is a complainant against another coaccused in a corruption case, is no ground to throw away the FIR No.:356/07 27/28 case of the prosecution. Moreover, for the sake of repetition, it may be mentioned that at this stage the court is required to see only a prima facie case. Prima facie case U/s 120 B r/w sec. 302 IPC is made out against all the accused persons and prima facie case U/s 302 IPC r/w sec. 120 B IPC is made out against accused Hitender Singh, Parveen Kohli, Bhishm @ Chintu, Vinod Kumar, Desh Raj, Deepak @ Chaura and Kishan Pal.
Charge be framed accordingly qua the accused persons.
(MADHU JAIN) Additional Sessions Judge1 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 16.9.2010 FIR No.:356/07 28/28