Himachal Pradesh High Court
Rani vs State Of Himachal Pradesh on 19 May, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal Nos. 359 of 2007 and connected matters.
Reserved on: May 17, 2016.
.
Decided on: May 19, 2016.
1. Cr. Appeal No. 359 of 2007.
Rani ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
2. Cr. Appeal No. 352 of 2007.
Nirmal Singh alias Nima ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
of
3. Cr. Appeal No. 353 of 2007.
Raj Pal ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
4. Cr. Appeal No. 360 of 2007.
rt
Nanak Chand alias Manga ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
5. Cr. Appeal No. 361 of 2007.
Rajinder Kumar alias Raju ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
6. Cr. Appeal No. 362 of 2007.
Rajinder Kumar alias Kali ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
7. Cr. Appeal No. 363 of 2007.
Anil Kumar alias Chottu ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
8. Cr. Appeal No. 364 of 2007.
Pawan Kumar ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
9. Cr. Appeal No. 365 of 2007.
Som Chand ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
10. Cr. Appeal No. 366 of 2007.
Ravi Kumar alias Manu ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP
2
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
.
For the appellants: Mr. Anoop Chitkara, Advocate, for appellant in Cr. Appeal
No. 359 of 2007.
Mr. Ramakant Sharma, Sr. Advocate, with Mr. Basant Thakur,
Advocate, for appellants in Cr. Appeals No. 352, 360, 361,
362, 364, 365 and 366 of 2007.
Mr. Satyen Vaidya, Sr. Advocate, with Mr. Vivek Sharma,
Advocate, in Cr. Appeal No. 353 of 2007.
For the respondent(s): Mr. Neeraj K. Sharma, Dy. AG for the respondent-State.
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
of Since all these appeals arise out of a common judgment and common questions of law and facts are involved in these appeals, rt all these were heard together and are being decided by a common judgment.
2. These appeals are instituted against the judgment dated 31.8.2007, rendered by the learned Addl. Sessions Judge, Fast Track Court, Shimla, H.P. in Sessions Trial No. 18-S/7 of 2004, whereby the appellants-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 120-B, 147, 148, 332/149 and 307/149 IPC, have been acquitted under Section 307/149 IPC. However, they were convicted and sentenced to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs. 500 each under Sections 120-B, 147 and 148 IPC and in default of payment of fine to further undergo rigorous imprisonment for two months. They were also convicted and sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs. 1,000/- each under Section 332/149 IPC and in default of payment ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 3 of fine to further undergo rigorous imprisonment for a period of three months. All the sentences were ordered to run concurrently. Ramesh .
Kumar alias Gola died during the pendency of appeal and Smt. Rani was substituted in place of Ramesh Kumar alias Gola to pursue the appeal.
2. The case of the prosecution, in a nut shell, is that Chaman of Singh (since deceased) was resident of Mohalla Krishna Nagar, Shimla Town. He was putting up with his family in the Mohalla. The land in front of the house of Chaman Singh belongs to M.C. Shimla. The same rt was leased out by the M.C. Shimla to Chaman Singh. A dispute qua that land arose between Chaman Singh, his family and the members of the Balmiki Community. On 24.5.2002, the members of the Balmiki Community raised a flag over the disputed land due to which a quarrel ensued. The matter was reported to the police by Chaman Singh and his family members and the police visited the spot. Const.
Yashwant Singh was detailed for duty on the spot so as to preserve and protect the land in question. On 26.5.2002 at 8:20 PM, Const.
Yashwant Singh informed the Police Station Sadar, Shimla that on the disputed land where he was deployed, approximately 60-70 persons, including Nirmal Singh alias Nima (accused No. 1), Rajinder alias Kali (accused No. 7), Manga (accused No. 3), Gola (Accused No. 5), Raju (accused No. 4) and others have assembled with intent to forcibly occupy the land in question. The situation on the spot became tense.
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 4SHO Manohar Lal also proceeded to the spot. Rukka Ext. PJ was sent to the Police Station. SHO Manohar Lal invited Nirmal Singh alias .
Nima and others for talks to diffuse the situation. 3-4 boys who were raising a pucca flag post in the place of the flag which was affixed on 24.5.2002 were also called by the SHO for negotiation. However, they did not come forward. In the meantime, Nirmal Singh alias Nima of (accused No. 1), Raj Pal (accused No. 2) and Gola (accused No. 5) raised the alarm, as a result of which, 100-150 persons, including the ladies came out of their respective houses. Accused No. 1, 2 & 5 in a planned rt manner and after making prior agreement instigated the men and women. Thereafter, the mob assembled on the spot and started pelting stones on the police party. Accused Nirmal Singh prompted his associates to indulge in stone pelting with a view to forcibly occupy the land in question and the police officials who had gone to the area to diffuse the situation. ASI Bhram Dev and Const. Sunil were badly injured. They fell down. Additional force was requisitioned from different Police Stations. When HC Balak Ram and Const. Kushwant Singh were trying to remove the injured, namely, ASI Bhram Dev and Const. Sunil Kumar, stones were also pelted on them. It is, in these circumstances, SHO ordered HC Lal Singh to open fire. HC Lal Singh then fired four rounds in the air from his Rifle. After that the mob dispersed. The injured were removed to DDU Hospital, Shimla for treatment. FIR No. 153/2002 Ext. PF was registered at Police Station ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 5 Sadar, Shimla. The injured were medically examined and their medical certificates were procured. Site Plan was also prepared. On completion .
of the investigation, challan was put up before the Court after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as fourteen witnesses. The accused were also examined under of Section 313 Cr.P.C. According to them, the land was in their possession for the last 40 years. Neither they were on the spot nor have they instigated the mob. The learned trial Court convicted the accused, rt as noticed hereinabove. Hence, these appeals.
4. Mr. Ramakant Sharma, Sr. Advocate, Mr. Satyen Vaidya, Sr. Advocate and Mr. Anoop Chitkara, Advocate for the respective accused have vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Neeraj K. Sharma, learned Dy. Advocate General, for the State has supported the judgment of conviction dated 31.8.2007.
5. I have heard learned counsel for both the sides and gone through the judgment and records of the case minutely.
6. HC Balak Ram, PW-1 testified that on 26.5.2002, he along with Insp. Naresh Kumar (Probationer) and other police officials had gone to Ghora Hospital on duty. Their duty was to remove Const. Sunil Kumar and ASI Bhram Dev who were lying there in injured condition.
When they tried to remove them, the mob already gathered there ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 6 started pelting stones on them. Accused, namely, Nirmal Singh, Manga, Rajinder Kumar alias Kalia and others were also present. They .
started pelting stones. One stone hit him on the ankle of his right foot.
In order to disperse the mob, the police had to fire in the air. In case, the police had not fired in the air, the mob would have killed the police officials. He was medically examined. The MLC is Mark-X. In his of cross-examination, he deposed that there was mob of about 300/400 people. There were no children in the mob. It was dark due to night and for this reason, except accused persons, other members of the mob rt could not be recognized. When he was hit by the stone, at that time, he was present at the lower side of the Ghora Sarain. He denied the suggestion that he could not recognize the accused since it was dark.
7. Const. Sunil Kumar, PW-2 deposed that he had gone to disputed site situated near Ghora Hospital alongwith ASI Bhram Dev and other police officials. When they reached there at about 8:30 PM, there was mob of about 150/200 people. Insp. Manohar Lal was negotiating with the President of the Balmiki Community. In the mean time, the people who were standing on roof of the houses started pelting stones on the police and one of the stone hit him on the back side of the skull. ASI Bhram Dev was also hit by a stone on the arm and he fell on the ground. In order to rescue them, when the police reached on the spot, the mob again started pelting stones. The police had to resort to firing in the air otherwise the mob would have killed ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 7 them. All the accused persons were the members of the mob who were present in the Court, who could be identified on the spot. He was .
taken to the hospital and medically examined. In his cross-
examination, he deposed that it was dark at the place of alleged occurrence, though volunteered that it was not pitch dark. When he was allegedly hit by a stone, at that time, he was standing on the lower of side of the disputed site.
8. Const. Khuswant Singh, PW-3 deposed that on 26.5.2002, he went to the place of occurrence alongwith Insp. Naresh Kumar and rt others because they had been asked to take care of Const. Sunil who was injured due to stone pelting. When they reached on the spot at about 8:30 PM, accused Nirmal Singh, the Pardhan of the Balmiki Community was present. There was mob of about 150/200 persons.
They were raising slogans and hurling abuses. When they tried to remove Const. Sunil, the stone pelting started again and he was also hit by stone on his back. The police had to open fire in the air and then stone pelting stopped. He was taken to DDU Hospital where he was medically examined. MLC Mark-Z-1 bears his signatures. In his cross-
examination, he deposed that he recognized accused Nirmal Singh, Raj Pal, Rajinder alias Raju and Rajinder alias Kali for the reason that they were the office bearers of Balmiki Sabha and in that capacity they used to visit the Police Station. When the alleged occurrence took place, it was night time but it was not pitch dark because nearby there were ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 8 tube lights. He denied the suggestion that due to night time, it was not possible to recognize as to who were allegedly pelting stones. He also .
denied that the accused persons were not in the mob and that they have been falsely implicated for the reason that some of them were known to the police.
9. Dr. Nelneesh Sharma, PW-4 has clinically examined Balak of Ram. He issued MLC Ext. PB. He noticed the following injuries on his person:
"There was abrasion of size 3 x 2 cm on the lower end of rt the right leg on the back side. The injury was simple, caused with blunt weapon within duration of less than 6 hours."
He has also examined Const. Kushwant and issued MLC Ext. PC. He noticed the following injuries on his person:
"There was no external injury tenderness over the left buttock was present. There was no other injury found. The injury was simple caused with blunt weapon within duration of approximately less than 6 hours."
He has also examined Const. Sunil Kumar and issued MLC Ext. PD. He noticed the following injuries on his person:
"1. There was a hematoma on the occipital bone of size around 3 x 2 cm with tenderness.
2. There was abrasion over the front of the left leg just below the patella of size around 2 x 3 cm.
3. There was a contusion over left shoulder of size around 5 x 3 cm.
4. There was a contusion of the size 3 x 4 cm over the left elbow laterally and swelling was present and tenderness was there."::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 9
He has also examined ASI Bhram Dev and issued MLC Ext.
PE. He noticed the following injuries on his person:
.
"There was abrasion of size 5 x 1 cm over middle of the left forearm on the lateral aspect. The tenderness was present and swelling was also present. There was abrasion over upper part of left humerus on lateral aspect of size 1 x 2 cm. Swelling and tenderness was present."
10. Const. Yashwant Singh, PW-6 testified that on 26.5.2002, of he was on duty at Krishna Nagar on the disputed point where a flag was raised. At about 8:20 PM, accused Nirmal Singh, Raj Pal and others having a big flag tried to erect the same there. He asked them rt not to do so. They did not care for his request and misbehaved with him. They raised the flag by uprooting the one which was already in existence. He informed Police Station Sadar. SHO along with other police officials came on the spot. When the SHO tried to negotiate with them, they also did not listen to him and started pelting stones. The stones hit Const. Sunil and ASI Bhram Dev. They got injured. He lifted Const. Sunil and took him to a safe place whereafter he was taken to the hospital. In his cross-examination, he deposed that at that time, it had started getting dark. Volunteered that nearby there was street light.
11. Insp. Manohar Lal, PW-7 deposed that on 26.5.2002, he had left for Krishna Nagar in pursuance to rapat No. 44. When at about 8:30 PM, he reached the site, he called accused Nirmal Singh for negotiation. He sent Sunil Kumar to call 2/3 persons who were ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 10 pitching flag on the disputed site. But, they did not come. In the meantime, there was a big noise and many persons assembled on the .
spot, including the women folk. At the instance of Nirmal Singh, Raj Pal and others, they started pelting stones on the police. Due to this stone pelting, Const. Sunil and ASI Bhram Dev sustained injuries. He requisitioned extra police force from the Police Station. When the of police force went to remove the injured, mob again started pelting stones. In self defence, he ordered HC Lal Singh to fire four rounds in the air so that the mob could be dispersed.
rt In case, they had not resorted to firing in air, the mob could have killed the Constables and ASI Bhram Dev. The injured were sent for medical treatment. The names of the persons who were pelting stones were Nemma alias Nirmal Singh, Raj Pal, Banga, Rajinder, Pummy, Raju and others. He identified the accused persons by their faces who indulged in stone pelting and were members of the mob. He prepared rukka Ext. PJ. In his cross-examination, he deposed that since Nirmal, Raj Pal and Rajinder and others had been coming to the Police Station being the office bearers of Balmiki Sabha, he was knowing them. He denied the suggestion that at the time of alleged occurrence, the light had gone for some time. Volunteered that after the occurrence, there was power failure for some time.
12. ASI Bhram Dev, PW-9 deposed that on 26.5.2012, he along with SHO and other police officials went to the spot at about 8:30 PM.
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 11The flag was being raised/hoisted which was being made pucca by Nirmal and others. Due to darkness he could not recognize them.
.
Adjacent to the side, there was house of Sardar Chaman Singh to whom those persons were hurling abuses. They were also raising slogans. When SHO tried to make them understand, accused Nirmal and others started pelting stones. He sustained injury on his forearm.
of Const. Sunil was also injured in that stone pelting. He was taken to the hospital. He identified his signatures on MLC Ext. PE.
13. Umesh rt Sharda, PW-10 is an independent witness.
According to him, on 26.5.2002, when he was present in his house, at about 8:30 PM, he heard a noise coming from the side of house of Chaman Singh. He went to the house of Chaman Singh. Stones were being pelted on the house of Chaman Singh by a mob. He did not know who were the persons in the mob pelting stones. He was declared hostile and cross-examined by the learned Public Prosecutor.
In his cross-examination by the learned Public Prosecutor, he admitted that members of the Balmiki Community had erected a flag on the spot. The mob was abusing Chaman Singh. The police had reached on the spot. He denied the suggestion that in the mob, there were Nirmal Singh, Raju, Raj Pal, Golla, Pummi, Rajinder alias Kali who were instigating the mob. He did not know that Manu, Chottu, Som Chand, Pawan Kumar, Tiku and Gaffi etc. were also in the mob. He admitted that in order to disperse the mob, the police had to fire in air. In his ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 12 presence the police had taken into possession, blood stained stones.
These were taken into possession vide memo Ext. PL. He identified .
stone Ext. P-4. In his cross-examination by the learned defence counsel, he admitted that it was dark at the time of occurrence.
14. Insp. Naresh Kumar Sharma, PW-11 deposed that after the registration of FIR, the case file was handed over to him for of investigation. On 27.5.2002, he seized a shirt which was produced by Const. Sunil Kumar. It was taken into possession vide memo Ext. PA.
He recorded the statements of the witnesses and also prepared site rt plan Ext. PM. He also seized stone having blood stains. It was taken into possession vide memo Ext. PL.
15. The case of the prosecution, precisely, is that on 24.5.2002 PW-6 Const. Yashwant Singh was deployed on duty at Krishna Nagar on the disputed point where a flag was hoisted. At 8:20 PM, accused persons tried to raise another flag on 26.5.2002 at night. It was objected to by Const. Yashwant Singh PW-6. The accused misbehaved with him. He rang up Police Station Sadar, Shimla. Insp. Manohar Lal, PW-7 reached the spot. He tried to negotiate with the accused. In the meantime, the mob started pelting stones. Const. Sunil Kumar, PW-2 and ASI Bhram Dev, PW-9 received injuries. When the other police officials who were requisitioned from the other Police Stations tried to remove the injured, stones were also pelted on them. They also received injuries.
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 1316. Const. Yashwant Singh, PW-6 testified that at about 8:20 PM, accused persons, namely, Nirmal Singh, Raj Pal and others having .
a big flag tried to erect the same. He asked them not to do so. They did not care for his request and misbehaved with him. They raised the flag by uprooting the one which was already in existence. He informed Police Station Sadar. SHO along with other police officials came on the of spot. When the SHO tried to negotiate with them, they also did not listen to him and started pelting stones. Const. Sunil and ASI Bhram Dev were injured. In his cross-examination, he categorically testified rt that at that time, it had started getting dark and nearby there was street light. HC Balak Ram, PW-1 also deposed that on 26.5.2002, he along with Insp. Naresh Kumar (Probationer) and other police officials had gone to Ghora Hospital on duty. Their duty was to remove Const.
Sunil Kumar and ASI Bhram Dev who were there lying in injured condition. When they tried to remove them, the mob gathered and started pelting stones on them. Accused persons, namely, Nirmal Singh, Manga, Rajinder Kumar alias Kalia and others were also present. In his cross-examination, he deposed that it was dark due to night and for this reason, except accused persons, other members of the mob could not be recognized. Const. Sunil Kumar, PW-2 deposed that one of the stone hit him on the back side of the skull. ASI Bhram Dev was also hit by a stone on the arm and he fell on the ground.
When the police personnel reached the spot to rescue them, the mob ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 14 again started pelting stones. The police had to resort to firing in the air otherwise the mob would have killed them. All the accused persons .
who could be identified on the spot were the members of the mob present in the Court.
17. Const. Khuswant Singh, PW-3 has also corroborated the statements of HC Balak Ram, PW-1 and Const. Sunil Kumar, PW-2.
of According to him, when they tried to lift and remove Const. Sunil Kumar lying on the ground, the mob started pelting stones. He was hit by stone on his back. The police had to open fire in the air. In his rt cross-examination, he specifically deposed that it was dark at the time when the incident has taken place but not pitch dark because there were tube lights nearby. Insp. Manohar Lal, PW-7 has also testified that he reached the spot at 8:30 PM. According to him, at the instance of Nirmal Singh, Raj Pal and others, they started pelting stones on the police. Due to this stone pelting, Const. Sunil and ASI Bhram Dev sustained injuries. He requisitioned extra police force from the Police Station. He ordered HC Lal Singh to fire four rounds in the air so that the mob could be dispersed. According to him, the persons who were pelting stones were Nima alias Nirmal Singh, Raj Pal, Banga, Rajinder, Pummy, Raju and others. They were members of the mob.
In his cross-examination, he denied the suggestion that at the time of alleged occurrence, the light had gone for some time and due to darkness people could not be recognized. ASI Bhram Dev, PW-9 also ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 15 deposed that he received injuries on 26.5.2002 at about 8:30 PM.
Umesh Sharda, PW-10 was though declared hostile, but in his cross-
.
examination by the learned Public Prosecutor, he has admitted that the members of the Balmiki Community had erected a flag on the spot. The mob was abusing Chaman Singh. He recognized stone Ext. P-4.
18. HC Balak Ram, PW-1 was examined by Dr. Nelneesh of Sharma, PW-4. He issued MLC Ext. PB. The injury received by him was simple caused with a blunt weapon within duration of less than six hours. Dr. Nelneesh Sharma, PW-4 has also clinically examined Const.
rt Kushwant Singh, PW-3. According to him, the injury was simple and caused with blunt weapon within duration of approximately less than six hours. He issued MLC Ext. PC. Dr. Nelneesh Sharma, PW-4 also examined Const. Sunil Kumar, PW-2. There was hematoma on the occipital bone of size around 3 x 2 cm with tenderness. There was abrasion over the front of the leg just below the patella of size around 2 x 3 cm. There was a contusion over left shoulder of size around 5 x 3 cm. There was also a contusion of the size 3 x 4 cm over the left elbow laterally and swelling was present and tenderness was present.
He issued MLC Ext. PD. ASI Bhram Dev, PW-9 was also examined by Dr. Nelneesh Sharma, PW-4. He noticed abrasion of size 5 x 1 cm over middle of the left forearm on the lateral aspect. The tenderness and swelling was present. There was abrasion over upper part of left humerus on lateral aspect of size 1 x 2 cm. He issued MLC Ext. PE.
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 16Thus, it is duly proved that the accused persons were the members of the unlawful assembly and had started pelting stones on the police .
force which was present on the spot on 26.5.2002 preventing them from discharge of their official duties. The police officials/officers were also hurt during the stone pelting by the accused. HC Balak Ram, PW-
1 and ASI Bhram Dev, PW-9 received injuries. The police personnel of tried to rescue them, however, Const. Sunil Kumar, PW-2 and Const.
Khuswant Singh, PW-3 also received injuries in the process. The situation was getting out of control, thus, in these circumstances, Insp.
rt Manohar Lal, PW-7 directed HC Lal Singh to open fire in the air. He fired four rounds in the air. Thereafter, the mob dispersed. According to Insp. Manohar Lal, PW-7 in case the police had not resorted to firing, the mob could have killed their Constables and ASI Bhram Dev, PW-9, who were injured. There was imminent danger to the life of the police personnel. The accused have been identified by the witnesses. It has also come in the evidence, discussed hereinabove, that though there was dark but there was street light. The accused were known to the police officials since few of them used to visit the Police Station, being members of the Balmiki Sabha.
19. Mr. Anoop Chitkara, Advocate, has also argued that there was no occasion for Const. Yashwant Singh, PW-6 to be present on the spot. However, the fact of the matter is that he was deputed on 24.5.2002 to protect the disputed point where flag was raised. Const.
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 17Yashwant Singh, PW-6 was detailed for duty on the spot. Thus, his presence on the spot was to ensure that no untoward incident takes .
place. He informed Police Station Sadar on 26.5.2002 when the mob assembled on the spot and tried to raise another flag by uprooting the existing flag.
20. Learned Senior Advocates, appearing on behalf of the of accused have also argued that the street light was not mentioned in the site plan. It is true that in Ext. PM, street light has not been shown but it has come in the ocular evidence that it was dark but not pitch dark rt and the street light was available. The accused were the members of the unlawful assembly and in prosecution of the common object, intimidated the police officials on duty. The police officials were discharging their official duties by preventing the mob from raising another flag on the disputed land. The accused and other members of the mob were armed with stones and they have voluntarily caused hurt to HC Balak Ram PW-1, Const. Sunil Kumar, PW-2, Const. Khuswant Singh PW-3 and ASI Bhram Dev, PW-9. They were public servants and were discharging their duties and were prevented by the mob from performing lawful duties. The prosecution had earlier cited Chaman Singh as a witness but he died during the pendency of the trial. The statements of the official witnesses inspire confidence and are reliable.
Though, Umesh Sharda, PW-10 was declared hostile but the part of his statement corroborated the other evidence available on record and has ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 18 rightly been taken into consideration by the learned trial Court. The contradictions pointed out by the learned counsel appearing on behalf .
of the respective accused are minor. The statements of the official witnesses have been duly corroborated by medical evidence.
21. Their lordships of the Hon'ble Supreme Court in the case of State of Bihar vs. Nathu Pandey and others., reported in AIR 1970 of SC 27, have held that in order to attract provisions of Section 149 IPC, the prosecution must establish that there was unlawful assembly and crime was committed in prosecution of its common object. It has been rt held as follows:
"8. In order to attract the provisions of s. 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the
-assembly. Under the fourth clause of s. 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any Person. Section 141 must be read with ss. 96 to 106 dealing with the right of private defence. Under s. 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or supposed right"
in the fourth clause of s. 141. In Kapildeo Singh v. The King(1) the High Court had affirmed the appellant's conviction and sentence under s. 147 and s. 304 read with s. 149, without considering the question as to who was actually in possession of the plot at the time of the occurrence. The High Court observed that the question of possession was immaterial and that the appellants party were members of an unlawful assembly, "as both sides were determined to vindicate their rights by show of force or use of force." The Federal Court set aside the conviction and sentence. It held that the High Court judge stated the law too loosely "if by the use of the word 'vindicate' he meant to include even cases in which a party is forced to maintain or defend his rights". The assembly could not be designated as an unlawful assembly if its object was to defend property by the use of force within the limits prescribed by law."
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 1922. In the instant case, the accused had formed unlawful .
assembly to raise flag post and the crime was committed in prosecution of its common object by pelting stones on the police. The object of the assembly was unlawful. There was common object/common intention to cause injuries to the police personnel and to prevent them from discharging their official duties.
of
23. Their lordships of the Hon'ble Supreme Court in the case of Chandrika Prasad Singh and others, vs. The State of Bihar, rt reported in AIR 1972 SC 109, have held that where certain accused persons were members of an assembly, the unlawful object of which developed at the spot of occurrence and they continued as its members not merely as passive or innocent spectators but indulged in overt acts along with others, the accused persons must be held liable for conviction. It has been held as follows:
"4. Regarding the other appellants the High Court has observed:
"The learned Sessions Judge has not accepted the story of common object of the assembly to take forcible possession of the paddy crop and the land because he found that this plot was in possession of the accused persons, one of them being Ramdeo Singh. But the common object of the assembly developed on the spot when Ram Sajjan Singh and Shambhu Prasad Singh came to protest against the harvesting of paddy. Most of the appellants had indulged in overt acts and had actually assaulted Ram Sajjan Singh and Shambhu Prasad Singh. So their conviction under Section 326 read with Section 149 of the Indian Penal Code must be said to have been correctly arrived at."
The argument that no overt act has been proved against the appellants 2 to 5 and, therefore, they are entitled to be acquitted ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 20 is difficult to sustain. As observed by the High Court, most of the appellants had indulged in overt acts and had assaulted Ram Sajjan Singh. If the other appellants were members of the .
assembly, the unlawful common object of which developed at the spot and they continued as its members, then, they are clearly liable to be proceeded against and convicted. It has not been shown that the High Court is wrong in its observation on the material on the record and we have not been persuaded to disagree with that Court. From the finding of the High Court it is clear that these appellants were present at the spot at the time of the occurrence not merely as passive or innocent spectators without intending to share the common object of the assembly;
of nor did they happened to be there out of idle curiosity, content by merely gazing on, having nothing to do with the assault."
24. Their lordships of the Hon'ble Supreme Court in the case of rt Ranbir Yadav vs. State of Bihar, reported in (1995) 4 SCC 392, have held that under Section 149 IPC, proof of specific overt act is not necessary. It is sufficient if it is proved that the accused persons shared the common objects of the unlawful assembly and in furtherance of those common objects, some members of that unlawful assembly committed offence attributed to them. It has been held as follows:
"46. In view of the above, interpretation given to Section 149 IPC we need not delve into or decide the contention raised by Mr. Jethmalani that the evidence regarding the specific overt acts ascribed to each of the three appellants herein is not reliable, for the Courts below considered and accepted conclusively prove that all the three appellants shared the common object of the unlawful assembly to commit the offences of loot arson and murder and causing the disappearance of the evidence of murder and that in furtherance of those common objects some members of that unlawful assembly committed those offences for which the appellants are also liable to the convicted under section 149IPC. Even if we leave aside the evidence of Suresh Singh (P.W.46) who testified about the overt acts committed by all the three appellants, of P.C. P.W.2 who spoke about the overt acts of appellants Pandav Yadav and Sukhdeo Yadav and of P.C. P.W.1 ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 21 and P.W. 19 who deposed about the overt acts of Sukhdeo Yadav there are the testimonies of the other eye-witnesses, to whom reference has already been made, and found to be trustworthy, .
who identified the three appellants, besides others, as having been members of the unlawful assembly. Having sifted their evidence and considered the same in the backdrop of the events proceeding the incident that took place in the afternoon of 11.11. 1985 we find that the following conclusions are inevitable: (1) a mob of 500/600 people, most of whom belonged to Yadav com- munity and were residents of different villages came to and attacked the neighbouring village Laxmiour Taufin Bind Toli to exterminate the Bind community :(ii) the three appellants who of belong to Yadav community and are residents of three separate adjoining villages came on horse back armed with fire arms, and led the mob along with some, others; and
(iii) the appellants were also amongst the rioters who chased the villagers and committed the murders at Tisrasia Dhad and the rt bank of the River.
47.In drawing the above conclusions we have taken note of the following passage from the judgment of this Court in., Bajwa & Ors. v. State of UP. (1973) 3 S.C.R. 571 to which our attention was drawn by Mr. Jethmalani.
"The evidence through which we have been taken by the learned counsel at the bar has been examined by us with care and anxiety because in cases like the present where there arc party factions, as often observed in authoritative decisions there is a tendency to include the innocent within the guilty and it is extremely difficult for the Court to guard against such a danger. The only real safeguard against the risk or condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the con- science of the Court. (See Kashmira Singh vs. State of M.P. and Bhaban Sahu vs. The King). In the case in hand, Do doubt the prosecution witnesses claiming to have seen the occurrence have named all the appellants and the approver has even named those acquitted by the High Court., but in our view it would be safe only to convict those who are stated to have taken active part and about whose. identity there can be no reasonable doubt"
25. Their lordships of the Hon'ble Supreme Court in the case of Mahmood & anr. Vs. State of U.P., reported in 2008 Cri. L.J. 696, ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 22 have held that when the membership of unlawful assembly is established, the prosecution need not establish any specific overt act to .
any of the accused for fastening of liability with the aid of Section 149.
It has been held as follows:
"26. The learned counsel for the State rightly contended that in case of attack by members of un- lawful assembly on the victim in furtherance of common object, it is not necessary for the of prosecution to establish overt-act done by each accused. It is required to be noticed that Ram Smujh (A-1) who had fired two shots, convicted by the Sessions Court, did not even challenge his conviction in the High Court. The appellants have been rightly convicted under Section 302 read with aid of Section 149 of IPC. rt PW-5 in his evidence stated that all the injuries sustained by the deceased were from gun. It is further stated that from the body of deceased one bullet, one cover tikli, two dat and 40 'chare' shots were taken out, put in packet and sealed ....." It is also stated in his evidence that injuries caused on the body of the deceased were sufficient in the normal course to cause death. This part of the medical evidence if juxtaposed with the oral evidence of PW-1, 2 and 3 it becomes unnecessary to go into the question as to which accused caused what injury and which was a fatal one. Once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish any specific overt-act to any of the accused for fastening of liability with the aid of section 149 of the IPC. Commission of overt-act by each member of the unlawful assembly is not necessary. The common object of the unlawful assembly of the accused in the present case is evident from the fact that some of them were armed with deadly weapons. None of them were curious onlookers or spectators to the macabre drama that was enacted on 19.2.1977 at 3.30 p.m. at galiyara, village Badipur."
26. Their lordships of the Hon'ble Supreme Court in the case of State of Maharashtra vs. Kashirao and others, reported in AIR 2003 SC 3901, have held that 'common object' of unlawful assembly is different from 'common intention'. It can develop during the course of incident at the spot eo instante. Their lordships have laid down the ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 23 factors necessary to be considered to determine the 'common object'. It has been held as follows:
.
" 12. A plea which was emphasized by the respondents relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of rt the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section
141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'.
It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 24
13. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object .
in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the of crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of rt unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti."
26. The learned Single Judge of the Madras High Court in the case of Neelai Ganesan vs. The State, reported in 1991 Cri. L.J. 2157, has held that to prove conspiracy, direct evidence is not necessary and role played by each accused prima facie pointing to existence of conspiracy pursuant to meeting of minds is necessary. It is also capable of being proved by circumstances pointing out the existence of a conspiracy to commit an unlawful act. The conspiracy is to be inferred from the presence of proved circumstances pointing out ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 25 the one and only hypothesis of the existence of a conspiracy to commit any unlawful or illegal act. It has been held as follows:
.
"2. Two persons by name Govindarajan (accused 2) and Easwaran (accused 3 of Salem approached Karuppan and promised to help him to complete the theatre complex by procuring the requisite financial assistance from one Subramanian (accused 1) of Madurai. They also represented that they came to know of his financial needs through his close friend Mannar Bhai so as to induce him to believe their version. Karuppan agreed to avail of of the promised financial assistance. Thereafter, accused 2 and 3 met Karuppan after sometime and represented that accused 1 was prepared to render financial assistance, provided some collateral security was offered for the amount to be advanced. Karuppan was agreeable for such a course. Consequently, accused 2 and 3 rt took Karuppan to Madurai and introduced him to accused 1. Accused 1 demanded delivery of the title deeds relating to the theatre project for inspection and verification and an amount of Rs. 1,85,000/- towards inspection charges. Karuppan complied with the demand of accused I, who in turn appeared to have passed a receipt for the receipt of Rupees 1,85,000/-. Accused I after getting the signature of Karuppan in many a document prepared, requested him to meet him on intimation so that he could collect cash resources from various sources and pay the same to him. He also made arrangement for his being introduced to one Perumal (accused 5) staying in Hotel Tamil Nadu from whom financial accommodation is to be secured. Accordingly, accused I to 3 took Karuppan to Hotel Tamil Nadu. Accused 5 and one Nellai Ganesan (accused 4) were staying in a room in that Hotel. Accused 4 received accused 1 to 3 and Karuppan at the hotel and took them to the room where accused 5 was staying. Karuppan was introduced to accused 5 by accused 4. Accused 5 also inspected the documents and after a big hanky-panky, declared that the documents were in order and he could release the loan to Karuppan and directed accused 1 to contact him in a week for the money. Karuppan was sent back to Namakkal with an assurance about the loan.
3. On 2-8-1985, Karuppan received a telegram informing him to come on Sunday, i.e. on 4-8-1985 to meet accused 1 at Madurai. Accordingly Karuppan went to Madurai and contacted accused 1. Accused 1 directed him to go over to Trichy and stay at Lakshmi Lodge. Karuppan did so and stayed at Room No. 206 in Lakshmi Lodge. Accused 1 as promised went to Trichy and met Karuppan in his room, at Lakshmi Lodge and handed him over a trunk box stated to contain the requisite cash he was in need of and for ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 26 which he had executed necessary documents. While they with In the room, Crime Branch C.I.D. Police, having a tip off, entered the room and checked the contents of the box. On opening the box, it .
appeared that it contained bundles of 100 rupee and 20 rupee denomination notes. On verification, the 100 rupee note bundles were found arranged in such a way that the bundle at the top had one 100 rupee currency note and the papers below the size and denomination of the currency note so as to give an appearance of the bundle containing full of currency notes. The bundles of 20 rupee notes were found to contain counterfeit currency In the sense of containing only toy notes. After due investigation, a final report had been laid before Court against accused 1 to 5 for of alleged offence under section 120B read with Ss. 420 and 489B, I.P.C., which having been taken on file is pending as C.C. No. 455 of 1986 on the file of the Judicial First Class Magistrate No. II, Trichirapalli. Accused 4, aggrieved by the laying of such a report, has come forward with the present petition to quash the criminal proceedings against him.
rt
5. Learned counsel for the petitioner, while making such a submission, forget the fact that the charge against the petitioner and others is for the offence of conspiracy under section 120B read with the other offences namely, under Sections 420 and 489B, I.P.C. he conspiracy need not necessarily be proved by direct evidence. It is also capable of being proved by circumstances pointing out the existence of a conspiracy to commit an unlawful act. It is also to be taken into account that seldom comes direct evidence for proof of the conspiracy in the very nature of things. In almost all cases, the conspiracy is to be inferred from the presence of proved circumstances pointing out the one and only hypothesis of the existence of a conspiracy to commit any unlawful or illegal act. It cannot be stated that in the instant case, there are no Prima Facie materials in the shape of telling circumstances pointing out the existence of a conspiracy between the petitioner and the other accused to 3 and 5 to commit the offences under Sections 420 and 489E, I.P.C. The materials in the shape of S. 161, Cr.P.C. statements of witnesses prima facie point out that each one of the accused, inclusive of the petitioner, played a different role in the melodrama of cheating Karuppan, pursuant to the meeting of minds between them, the conspirators. As already stated, accused 2 and 3 appeared to have played the part of meeting Karuppan and promised to procure the required financial assistance through the medium of a big-shot, namely, accused 1 of Madurai. They also appeared to have played the part of going to Madurai, meeting accused 1, returning back and representing Karuppan that accused 1 had agreed to oblige Karuppan. Their part did not appear to stop there. What they appeared to have done is that they also took Karuppan to accused ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 27 1 and thereafter, accused 1 to 3 took Karuppan to Hotel Tamil Nadu and introduced him to accused 5. Here comes the part played by the petitioner accused 4. Accused 4 was stated to have .
received accused 1 to 3 and Karuppan in the Hotel and then took them to the room of accused 5. The materials available 'prima facie' further disclose that he came along with accused 5 and took room in the Hotel. This apart he, joining with the company of accused 1 to 3, appeared to have made a big appeal to accused 5 to provide Karuppan necessary financial accommodation he required for the construction of the theatre project. Thus, the various acts of all, prima facie point out that each of them was playing his part, pursuant to the conspiracy in cheating of Karuppan. As such, it cannot be stated that there are no prima facie materials as against the petitioner, as contended by his counsel and in this view of the matter, the petition deserves to be dismissed."
27. Their lordships of the Hon'ble Supreme Court in the case of rt K.T.M.S. Mohd. and another vs. Union of India, reported in (1992) 3 SCC 178, have held that conspiracy under Section 120-B can be established by direct evidence or by circumstantial evidence. It has been held as follows:
" 54. A careful perusal of the complaint leaves an impression that it has been ill-drafted and that necessary ingredients to make out a case for conspiracy are not brought out in the complaint. It is true that in case of conspiracy, an agreement between the conspirators need not be directly proved but it can also be inferred form the established facts in the case. As pointed out by this Court in Bhagwan Swaruop and Ors v. State of Maharashtra, AIR 1965 SC 682 = [1964] 2 SCR 378 that the offence of conspiracy can be established either by direct evidence or by circumstantial evidence and this section will come to play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to the conspiracy. The charges levelled in the complaint in paragraphs 25 (i) (ii) and
(iii) read that the first and the second appellants by sending the letter through their lawyer on 20.10.66 committed an offence under Section 193 IPC and that they, thereafter, individually committed an offence under Section 193 IPC by retracting their earlier statements given before the Enforcement Authorities.::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 28
Under Paragraph 25 (iv), (vi) and (vii) of the complaint, the third appellant is stated to have caused false entries to exist in the account books of M/s precious Stone Trading Company and then .
wilfully made a false statement in verification before the Income-
tax Authority accompanied by a false statement. Nowhere, it is stated that the individual acts of appellants 1 and 2 and that of the third appellant were due to any conspiracy among all the three. On the other hand, the offence said to have been committed by the third appellant is specifically attributed only to him. So the question is whether any conspiracy could be inferred under these circumstances. In our opinion, on the facts of the case, no such inference could by drawn for the simple reason that the appellants of 1 and 2 were interrogated by the Enforcement Authorities on 19.10.66 and they sent their letter of retraction through their advocate on the very next day i.e. on 20.10.66 and that the ITO, Karakudi has recorded the retraction statement of the first appellant even on 16.11.66. It was only thereafter the third appellant sent his letter to the Enforcement Authorities claiming rt the controversial amount on 22.12.66. The charges levelled against appellants 1 and 2 are only on the basis of their retractions made through their lawyer on 20.10.66 and by their subsequent statements. In the letter dated 20.10.66, the appellants 1 and 2 have not stated that the amount belonged to the third appellant. Similarly, it is not the case of the prosecution that the first appellant by his statement dated 16.11.66 explained the amount as belonging to the third appellant. Nor is it the case of the prosecution that the second appellant came forward by his statement recorded in the year 1974 which is the basis for prosecuting him for perjury stating that the amount belonged to the third appellant. Therefore, no agreement to commit the offence punishable under Sections 193 IPC or 277 I.T. Act can be said to have been hatched among all the three appellants. further, it is neither the case of the complainant nor could it be said that the appellants 1 and 2 knew that the third appellant intentionally fabricated false evidence or wilfully made a false return before the ITO. Merely because the third appellant happens to be related to the first appellant and claimed that amount as owner thereof, no irresistible inference can be safely drawn that there was a conspiracy among all the three appellants and the accused Nos. 4 and 5. Moreover, the evidence, direct or circumstantial is very much lacking to bring all the three and the other two accused under the charge of conspiracy. hence the third appellant cannot be put on a joint trial along with appellants 1 and 2 and others under the charge of conspiracy. Therefore, the conviction of the third appellant under the conspiracy charge has to fail."
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 2928. The learned Single Judge of the Andhra Pradesh High Court in the case of M. Srinivasulu Reddy vs. State Inspector of .
Police, Anti Corruption Bureau, Nellore Range, Nellore, reported in 1993 Cri. L.J. 558, has held that it is true that in most cases, it will be difficult to get direct evidence of an agreement of minds to conspire but a conspiracy can be inferred even from circumstances giving rise to a of conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It has been held as follows:
rt "63. It is a case of conspiracy alleged to have been made by A-1 to A-5 and they have drawn large sums of money under the guise of jungle clearance work, which itself is a maintenance work to be attended to by luscars. At each and every stage every authority that is dealing with the work has to apply its mind and satisfy itself on the material placed before it. Unless and until all the minds are put together to prepare all these things, it is not possible to withdraw moneys under the guise of execution of work. In order to prove a criminal conspiracy there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of offence. It is true that in most cases it will be difficult to get direct evidence of an agreement of minds to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence."
29. Their lordships of the Hon'ble Supreme Court in the case of Hardev Singh vs. Harbhej Singh and others, reported in (1997) 1 SCC 80, have held that when the incident has taken place at 7:30 PM, in the month of May and witnesses asserting that there was enough light to identify the accused, the accused persons were known to the ::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 30 witnesses, the High Court erred in recording a finding that it was a blind murder during the dark night. It has been held as follows:
.
"(19) The High Court was totally wrong in recording a finding that it was a blind murder during the dark night. The incident took place at 7.30 p.m on 23rd May , 1985 and the witnesses have emphatically asserted that there was enough light to identify the accused. Moreover the respondents(accused) were known to the eye witnesses since their houses were adjacent to the house of Chanan Singh. This finding, therefore , is totally imaginary of without any material on record."
30. In the instant case also, the witnesses have deposed that though it was dark but it was not pitch dark and there was sufficient rt light to identify the accused in the tube light. Moreover, accused were known to the police party since they used to visit the Police Station.
31. Their lordships of the Hon'ble Supreme Court in the case of Ram Narain Poply vs. Central Bureau of Investigation, reported in AIR 2003 SC 2748, have held that conspiracy is not hatched in open but is secretly planned. Direct evidence is rarely available to prove conspiracy and circumstantial evidence can be relied upon. It has been held as follows:
"349 Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct 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.::: Downloaded on - 15/04/2017 20:23:28 :::HCHP 31
354. It was noticed that Sections 120-A and 120-B IPC have brought the law of conspiracy in India in line with English law by making an overt act I inessential when the conspiracy is to .
commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The of evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B of the Indian Penal Code."
rt
32. In view of the analysis and discussion made hereinabove, there is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 31.8.2007.
33. Consequently, the appeals are dismissed. The accused shall undergo sentence imposed upon them by the learned trial Court vide judgment dated 31.8.2007, except Ramesh Kumar, who has died during the pendency of the appeal, though his wife was substituted to pursue the appeal vide order dated 31.3.2016. The Registry is directed to issue jail warrants accordingly. Bail bonds are cancelled.
May 19, 2016, ( Rajiv Sharma ),
(karan) Judge.
::: Downloaded on - 15/04/2017 20:23:28 :::HCHP