Punjab-Haryana High Court
Criminal Appeal No.2365-Sb Of 2006 vs State Of Haryana on 20 October, 2009
Criminal Appeal No.2365-SB of 2006 &
Criminal Appeal No.2406-SB of 2006 &
Criminal Appeal No.28-SB of 2007 &
Criminal Appeal No.221-SB of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
Date of Decision:20.10.2009
1. Criminal Appeal No.2365-SB of 2006
Phool alias Phool Kumar
.....Appellant
Vs.
State of Haryana
.....Respondent
2. Criminal Appeal No.2406-SB of 2006
Dinesh
.....Appellant
Vs.
State of Haryana
.....Respondent
3. Criminal Appeal No.28-SB of 2007
Jai Bhagwan
.....Appellant
Vs.
State of Haryana
.....Respondent
4. Criminal Appeal No.221-SB of 2007
Jai Bhagwan and others
.....Appellants
Vs.
State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Criminal Appeal No.2365-SB of 2006 &
Criminal Appeal No.2406-SB of 2006 &
Criminal Appeal No.28-SB of 2007 &
Criminal Appeal No.221-SB of 2007 -2-
Present:- Mr. B.S. Sudan, Advocate for appellant Phool @ Phool Kumar
in Criminal Appeal No.2365-SB of 2006,Mr. Bijender Dhankar
Advocate for appellants Dinesh and Jai Bhagwan in Criminal
Appeal No.2406-SB of 2006 and Criminal Appeal No.28-SB
of 2007.
Mr. Sameer Sachdeva, Advocate for all the appellants in
Criminal Appeal No.221-SB of 2007.
Mr. Tarunveer Vashist, Additional Advocate General,
Haryana.
****
JUDGMENT
HARBANS LAL, J.
This judgment shall dispose of Criminal Appeal No.2365-SB of 2006 filed by Phool alias Phool Kumar accused, Criminal Appeal No.2406- SB of 2006 moved by Dinesh accused, Criminal Appeal No.28-SB of 2007 preferred by Jai Bhagwan accused and Criminal Appeal No.221-SB of 2007 moved by all these three accused jointly as having arisen out of the judgment dated 13.11.2006/ order of sentence dated 14.11.2006 passed by the Court of learned Additional Sessions Judge, Panipat whereby he convicted and sentenced all the above-mentioned three accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,000/- each under Section 120-B of IPC and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for two and a half years and also sentenced each of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- under Section 392 read with Section 397 of IPC and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for two and a half Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -3- years and further sentenced each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- under Section 342 of IPC or in default of payment of fine, the defaulter to further undergo rigorous imprisonment for 45 days and also sentenced the accused Dinesh to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- under Section 25 of the Arms Act, 1959 or in default of payment of the same, to further undergo rigorous imprisonment for a period of six months with a further direction that all the substantive sentences shall run concurrently.
The facts in brief are that Jagdish Bathla owns Shop No.647/8 near Lal Masjid, Panipat. He is proprietor of the firm M/s Bathla Yarn Agency. He had engaged two persons for the purpose of collection in his above-mentioned firm. On 8.12.2004, his worker Ajay after collecting cash from Mohit as also from Bank returned to the shop around 3:00 P.M, when he and his nephew Ashok Kumar were present at the shop. Ajay handed over a sum of Rs.2 lacs to him (Jagdish Bathla), who put that amount in the drawer of the table, which was unlocked as the said cash amount was to be given to some other businessman. He went to the shop of his nephew. Meanwhile, 3-4 boys, who were wearing monkey- caps entered his shop and had put pistol at the temple of Ajay, locked him in the bathroom and decamped with the cash amount. They also took away two mobile phones along with the purse and some important documents from the pocket of Ajay. On inquiry, he came to know that the occurrence had taken place in connivance with Jai Bhagwan accused, Bintu Saini and Dinesh. So, he Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -4- made complaint to the police, on its basis, the case was registered. The accused Jai Bhagwan, Dinesh and Phool Kumar were arrested. Pursuant to his disclosure statement, accused Jai Bhagwan got recovered currency note worth Rs.500/-, which were seized. The accused Dinesh got recovered a country made pistol of .315 bore along with currency notes worth Rs.1200/- which were also taken into possession. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused were charged under Sections 120-B, 392 read with Section 397 and 342 of IPC and the accused Dinesh was also charged under Section 25 of the Arms Act, 1959 to which they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined Joginder Singh Reader PW1, Inspector Om Singh PW2, Head Constable Surinder Singh PW3, Constable Jagbir Singh PW4, ASI Balwan Singh PW5, ASI Prem Singh PW6, Ajay Kumar PW7, ASI Subhash Chander PW8, Jagdish Bathla PW9 and closed its evidence. When examined under Section 313 of Cr.P.C, all the accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. The accused Dinesh as well as Phool Kumar denied of their having made disclosure statements. Jai Bhagwan accused came up with the plea that he was employed as Palledar (Porter) at the shop of the complainant. There was a dispute between him and the complainant regarding payment of labour charges, due to which the latter used to threaten him to implicate in false case. His signatures were obtained on blank papers by the police and no recovery of currency notes whatsoever Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -5- was effected from him. The accused did not adduce any evidence in their defence.
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the above-mentioned accused as noticed at the outset. Feeling aggrieved with their conviction/ sentence, they have preferred these appeals.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
On behalf of the appellants, it has been strenuously urged that the learned trial Court has gravely erred in appreciating that the case was got registered after as many as 12 days of the alleged occurrence. Had this incidence of robbery verily occurred, the complainant would have left no stone unturned in reporting the same to the police with promptitude. The explanation offered by the prosecution is that the complainant had been making inquiries at his own level and that being so, the delay came to creep in lodging of the FIR, which is not enough.
As against this, the learned State Counsel canvassed at the bar that of course, there is delay of 12 days in lodging the FIR, but the same has been explained, as during this interregnum, the complainant continued making inquiries about the identity of the accused persons. This contention merits rejection. There is no gainsaying the fact that the case came to be registered after 12 days. As per Ex.PJ- complaint, the complainant went on making inquiries at his own level. If the occurrence had taken place in the Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -6- suggested manner, he was obligated to report the matter to the Police as soon as possible. The law does not contemplate that at such a juncture the complainant should embark upon inquiry of his own without reporting incidence to the police. It is beyond comprehension as to where was the occasion for him to resort to inquiry instead of approaching the police. He seems to have assumed the role of police for the reasons best known to him. The inexplicable delay of twelve days was allowed to creep in. He would have got registered the FIR at the earliest possible detailing out the identifying features of the alleged robbers. The object of the FIR is to set the machinery of law into motion as early as possible. The accused Jai Bhagwan has put forth that he was employed as Palledar at the complainant's shop and the dispute with regards to the payment of labour charges had arisen between him as well as the complainant and that the latter used to hold out threats to implicate him falsely and his signatures were taken on blank papers by the police and no currency notes were got recovered by him. This plea assumes greater importance in view of the considerable delay in lodging the FIR. In re: Bhag Singh v. The State of Haryana, 1979 (Volume LXXXI) Punjab Law Reporter 265, the Division Bench of this Court held that "the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be over estimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of a commission of an offence is to obtain Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -7- early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them, as well as the names of the eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results to embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or connected story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained." If the matter is viewed in the light of the above extracted observations, the prosecution case is rendered highly doubtful as the inordinate delay has gone unexplained.
On behalf of Phool Kumar - appellant, it has been argued that he is neither named in the FIR nor the police had held any test identification parade during investigation. Furthermore, it is neither case of the prosecution nor there is any evidence on the record to the effect that Phool Kumar - appellant was armed with any deadly weapon and used the same in the commission of the alleged offence and caused any grievous hurt to any person.
On behalf of Dinesh - appellant, it has been pressed into service that the learned trial Court has fallen in error by not appreciating the fact that the identity of this appellant has not been established beyond doubt by the prosecution as no test identification parade was ever conducted for this very purpose. It is further argued that Jagdish Bathla PW9 Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -8- complainant has deposed that Jai Bhagwan accused was working as Palledar at his shop but nonetheless he could also not be identified by him at the time of alleged occurrence and thus it would be not free from risk to maintain the conviction qua the appellant.
To tide over these submissions, the learned State Counsel maintained that as is borne out from the testimony of Subhash Chander ASI PW8, the Investigator, the accused Dinesh in pursuance of his disclosure statement had got recovered Rs.1200/- and a pistol of .315 bore and as regards, the appellant Jai Bhagwan, he identified the place of occurrence from where they have looted the currency notes and thus, the occurrence stands well established.
I have well considered the rival submissions. As per the prosecution evidence, accused Jai Bhagwan had got recovered the currency notes of Rs.500/- in pursuance of his disclosure statement, which were taken into possession vide memo Ex.PF/1. The accused Dinesh got recovered Rs.1200/- apart from pistol of .315 bore pursuant to his disclosure statement and the same were also seized vide recovery memo. It is worth pointing out here that as surfaces in the cross-examination of ASI Subhash Chander (sic.) "I recorded statement of accused Dinesh and Jai Bhagwan on 20.12.04. In pursuance of the above said disclosure statement, no recovery was effected from the accused. They made another disclosure statement on 21.12.04 in result of that the recovery was effected. When recovery was effected from accused, they were without handcuff. It is correct that Sanoli Road is the busy place. I tried to join some independent persons in investigation, but Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -9- they had shown their helplessness. No action was taken against them. It is correct that no identification was made from the complainant of the currency notes which were recovered from the possession of the accused. No identification parade was got conducted from the accused. It is correct that nothing was recovered from the possession of accused Phool Kumar." It is in the cross-examination of ASI Prem Singh PW6 that "I do not remember, whether accused Dinesh made any disclosure statement prior to Ex.PE on 21.12.2004. The accused in his disclosure statement Ex.PE stated that his earlier disclosure statement was false. The accused Dinesh got effected recovery at about 2:30 P.M on 21.12.2004. It is correct that persons used to come and go at the place of recovery and that the place of recovery is easily approachable." It emerges out of this evidence that nothing was got recovered by appellant Phool Kumar, who is also not named in the FIR. It also emanates from this evidence that the appellants were not got identified by arranging a test identification parade. The most glaring circumstance in this case is that if nothing was got recovered by the appellants Dinesh as well as Jai Bhagwan in pursuance of disclosure statements on 20.12.2004 how they could be expected to have got recovered the alleged cash amount or the pistol in pursuance of their subsequent disclosure statements on 21.12.2004 i.e. on the next day of the earlier ones. Needless to say, the amount allegedly got recovered by these appellants is a small amount though as alleged by the prosecution, cash amount of Rs.2 lacs was robbed off. Strangely enough that a sum of Rs.500/- by Jai Bhagwan and a sum of Rs.1200/- besides a country made pistol by Dinesh Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -10-
-appellant were concealed at the alleged places which were admittedly accessible to all and sundry. This place could have been accessed by anyone. That being so, it is very difficult to believe these recoveries.
While discussing the evidentiary value of test identification parade carried out under Section 9 of the Evidence Act, the Apex Court in re: Heera & Another v. State of Rajasthan, 2007(3) Recent Criminal Reports (Criminal) 517, laid down as under:-
"(i) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses.
(ii) Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court.
(iii) It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade.
(iv) Substantive evidence is the evidence of identification in Court- Evidence of mere identification of the accused person at the trial for the first time is from its very nature Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -11- inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence.
(v) The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges that investigating agency to hold or confers a right upon the accused to claim, a test identification parade.
(vi) Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court.
(vii) The weight to be attached to such identification should be a matter for the Courts of fact - In appropriate cases it may accept the evidence of identification even without insisting on corroboration. AIR 1958 SC 350 relied.
(viii) Absence of test identification parade is not fatal in all cases - Accused can be convicted on basis of identification in Court corroborated by other circumstantial evidence. (1970) 3 SCC 518 relied.
(ix) Much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -12- made for the first time in Court.
(x) Evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes."
As ruled in re: Sarwan Singh v. State of Punjab, (2003) 1 Supreme Court Cases 240, "Ordinarily identification of an accused for the first time in court by a witness should not be relied upon for the purpose of passing the order of conviction without a definite corroboration - Identification for the first time in court cannot possibly be termed to be non- admissibl,e but it is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration otherwise the justice delivery system may stand affected - Once the requirement of the concept of justice i.e. acceptability and credibility of the evidence of the witnesses, stands completed, it would be difficult if not an impossibility to challenge a conviction only on the ground of failure to hold prior Test identification parade."
In re: Kanan v. State of Kerala, (1979) 3 Supreme Court Cases 319, it was held that "Identification by such witness of the accused in Court raises a serious doubt and his testimony must be excluded. Where a witness identifies an accused who is not known to him, in the Court for the first time, his evidence is absolutely valueless, unless there has been a Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -13- previous T.I. Parade to test his powers of observations. The idea of holding T.I parade under S.9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person, whom the witness may have seen only once. If no T.I. parade is held, then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court." In re: Malkhan Singh v. State of M.P., (2003) 5 Supreme Court Cases 746, it was held as under:-
"The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -14- court.
But failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The identification parades belong to the stage of investigation, and there is no provision in the CrPC which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. These parades do not constitute substantive evidence. The substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration."
Adverting to the facts of the present one, Dinesh as well as Phool Kumar- appellant were strangers to the complainant. There is no gainsaying the fact that the test identification parade was not made in this case. To my mind, if physical description had been given in the FIR that would have been treated as a circumstance pinning down the identity of the appellants. To say the least of it, identification of the appellants in the Court is not being corroborated by any circumstantial evidence. The Apex Court has laid down in clear cut and unambiguous terms that much evidentiary Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -15- value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse on a person identifying or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. It is in the evidence of Ajay Kumar PW7 that "Thereafter, Jagdish Bathla accompanied Ashok and had gone to his shop. After about five minutes, four persons came to agency. They were having pistol and one assailant put pistol on my head. They snatched my purse after putting me in the Bathroom. One driving licence and some other documents and Rs.2,000/- were in my purse. They had also taken out the amount from the drawer, which was taken by Jagdish Bathla. They also snatched Mobile No.94160- 18311 and 93549-37163. Two accused identified which are named Dinesh and Phool Kumar. Accused Dinesh put pistol on my head and they both snatched my purse and cash and mobiles from the shop. Thereafter, I knocked the door from inside and Jagdish Bathla came there, who opened the door." This evidence speaks volumes of the fact that Jagdish Bathla was not in attendance at the time of occurrence though the case has been registered at his instance. Curiously enough that Jagdish Bathla as per the above reproduced evidence came and opened the door of the bathroom in which this witness Ajay Kumar was shut. It bears repetition that identifying features of the appellants have not been given in the FIR and that being so, it would be going to far to say that the appellants are the same persons who had robbed the alleged amount. It is in the cross-examination of this witness Ajay Kumar (sic.) that "I went to Police Station after 10/15 days after the Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -16- occurrence by calling the police." Appallingly, the police was approached after 10/15 days. It is in the further evidence of this witness that "After apprehension of accused, police called me for identification and I identified the accused in police station. The names and address of accused were disclosed by police to us. My statement was recorded by police in police station." This evidence leaves no room for doubt that the appellants were shown to this witness in police station and that being so, it was not difficult for this witness to say in the Court that they are the same persons who had committed robbery. The prosecution has not apportioned any cogent reason for shying away from holding the test identification parade of the appellants. It is apt to be borne in mind that in re: Heera and another (supra), it has been observed that "it is desirable that a test identification parade should be conducted as soon as this becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade." Herein, it is axiomatic from the above referred evidence that the appellants were shown to Ajay Kumar PW in the Police Station before he was examined in the Court. It is in further cross- examination of this witness that "It is correct that after 10/12 days when the accused were apprehended, my statement was recorded by the police in police station. From the very beginning, we suspected on accused Jai Bhagwan that he might have participated in the occurrence and Jagdish Bathla had enquired about the matter. The police had shown me pistol in the police station which was put by accused on my temple and at that time, police had shown me my purse in the police station. The police had also Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -17- shown me 300/- rupees which were lying in my purse at that time and the same belonged to me. Except this, no other amount had been shown by police to me. After 10/15 minutes, I was released from the bathroom by my owner Jagdish Bathla." This evidence tends to show that all these recovered articles were also shown to this witness in the police station, so that he may not face any difficulty in their identification in the Court. In such state of affairs, it is not possible to believe the recoveries allegedly got effected by the appellants in pursuance of their disclosure statements. When the robber placed the pistol on Ajay Kumar (sic.)'s head, out of reaction, he would have raised hue and cry attracting the nearby shopkeepers or the passers-by as the allegedly the occurrence had taken place in day time. Thus, the prosecution story is rendered highly improbable.
The allegations against Jai Bhagwan - appellant are that he had hatched conspiracy with his co-accused. The most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. For the offence of conspiracy, some kind of physical manifestation of agreement is required to be established. As ruled in re: K. Hasim v. State of Tamil Nadu, AIR 2005 Surpeme Court 128, (1) the essence of a 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 overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Encouragement and support which co-conspirators give to one another Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -18- rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. Offence of criminal 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 agreed 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 capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
As ruled in re: Devender Pal Singh v. State of NCT of Delhi and Another, (2002) 5 Supreme Court Cases 234, "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 co-operate 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 overt act. The essence of a 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 overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence."
As ruled in re: Hira Lal Hari Lal Bhagwati v. CBI, New Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -19- Delhi (2003) 5 Supreme Court Cases 257, "To bring home the charge of conspiracy within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence."
The Supreme Court has ruled in re: State of Kerala v. P. Sugathan, 2000(4) Recent Criminal Reports (Criminal) 369 as under:-
(i) Direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference.
(ii) There must be agreement and meeting of minds of two or more persons to commit the offence.
(iii) A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with commission of offence of criminal conspiracy.
(iv) Circumstances relied for purpose of drawing an inference should be prior in time than the actual commission of the offence in furtherance of alleged conspiracy. 1980(2) SCC 665.
(v) In a case where criminal conspiracy is alleged, the court must enquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object.
(vi) For offence of conspiracy some kind of physical Criminal Appeal No.2365-SB of 2006 & Criminal Appeal No.2406-SB of 2006 & Criminal Appeal No.28-SB of 2007 & Criminal Appeal No.221-SB of 2007 -20- manifestation of agreement is required to be established
- Express agreement need not be proved - Evidence as to transmission of thoughts sharing the unlawful act is not sufficient.
(vii) A conspiracy is continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. 1993(3) R.C.R.(Crl.) 34 (SC), 1996 (2) R.C.R. (Crl.) 480 and AIR 1988 SC 1883 relied."
Harking back to the instant one, a careful delving into the entire prosecution evidence would reveal that there is not even a shred of evidence or remote reference to the fact that there had been meeting of minds amongst the appellants. The prosecution evidence too lacks some kind of physical manifestation of such agreement. Sequelly, no offence under Section 120-B of IPC is made out as the evidence falls short of establishing it.
As a sequel of the above discussion, Criminal Appeals No.2365-SB of 2006, 2406-SB of 2006 and 28-SB of 2007 are accepted, setting aside the impugned judgment/ order of sentence, Resultantly, all the three appellants are hereby acquitted of the charged offences. The Criminal Appeal No.221-SB of 2007 filed jointly by all the three appellants is dismissed as having become infructuous.
October 20, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No