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The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.

It was the submission of learned APP that, it is not necessary to prove the extent of physical participation, once it is demonstrated that the appellant is a party to the agreement for conspiracy. Sharing of thought is sufficient to be a member of the conspiracy. According to learned APP, the prosecution has evidence against the appellant in the form of statements of five witnesses recorded under Section 161 of Cr.P.C., of six witnesses, whose statements are recorded under Section 164 before Magistrate and confessional statements of two accused persons recorded under Section 32 of POTA. According to her, these statements together contain sufficient material to demonstrate that the appellant is a part and parcel of the conspiracy, by agreement. He is not impleaded by the prosecution in the absence of his knowledge about conspiracy. On the contrary, he has knowledge and he has shared the intentions. She has provided copies of eleven statements. Out of these eleven, serial numbers 3 and 11 are the confessions recorded under Section 32(1) of POTA and serial Nos. 1, 2 and 4 to 10 are the statements recorded either under Section 161 or 164 of Cr.P.C.1973. These statements are marked by us for convenient reference as PW-1, 2 and 4 to 10. Out of those, statements of PWs. 6 and 7 are recorded twice under both the provisions i.e. 161 and 164 of the Cr.P.C. Learned APP did not dispute the proposition of learned counsel for the appellant that, confessions recorded under Section 32 of POTA are not admissible, as against co-accused, as laid down by the Supreme Court in the case of Navjot (supra). However, she added that, the prosecution cannot be deprived of the use of the said confession for the purpose of demonstrating the horizons of the conspiracy. The portions from these statements relied upon by learned APP, in order to impute knowledge and comity of intentions of the appellant, shall be discussed at a later stage.

In criminal appeal No. 56 of 2005, the prosecution had relied upon grounds to claim that the appellant therein was a member of criminal conspiracy. It was alleged that there was discovery of AK-56 rifle at the instance of the appellant and he had also taken part in training terrorists to use AK-56 rifle. It was also pleaded that the appellant had given shelter to a Pakistani citizen. After considering the material placed before it, the court arrived at a conclusion that excepting recovery of AK-56 rifle, the prosecution has no evidence to connect the accused-appellant with the crime. In spite of considering the links putforth by the prosecution to demonstrate involvement of the appellant in conspiracy, the court arrived at a conclusion that those were not sufficient to hold that he was member of the conspiracy, or he had knowledge of conspiracy. (para 26 of the judgment).

Earlier, in paragraph 25, the court also observed that newspaper report in Mid-day daily, dated 3.5.2003, created some doubts about recovery, claimed to be at the instance of that appellant on 3.5.2003 between 5.50 a.m. to 9.30 a.m., although court hastened to add that, it was only prima facie observation. The court was of the view that the Public Prosecutor could not demonstrate that any trainees were trained by the appellant in the camps held for the purpose (paragraph 13 of the judgment).

Regarding giving shelter to Pakistani citizen, the prosecution relied upon confessional statement of one Anwar Ali-co-accused. After considering the said statement, the court arrived at a conclusion that the appellant-accused had no knowledge about the conspiracy, had no knowledge about the antecedents and activities of the Pakistani national Irfan.

Thus, practically coming to the conclusion that the appellant therein had no knowledge of conspiracy while giving shelter to Pakistani citizen, that there was no evidence to show that the appellant had trained some terrorists in using AK-56 rifle and that the recovery at the instance of the appellant was doubtful, other bench of this court was inclined to consider bail plea of the appellant therein, favourably.

If this is taken into account, reliance on the earlier decision was not necessary. In case, we arrive at a conclusion that no prima facie case is made out against present appellant, he would be entitled to bail without reference to decision in criminal appeal No. 56 of 2005. It may also be taken into account that the allegations against present appellant are different. He is alleged to have transported the weapons to the training centre and also carried some trainees to the training centre. Whether this amounted to overtacts contributing to the common object of the conspiracy with knowledge about the same, would be an aspect to be considered in the present matter and in case, we arrive at an affirmative finding,the decision in earlier appeal would again be of no assistance.