Topandas Vs. The State of Bombay
 INSC 54 (14 October 1955)
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
CITATION: 1956 AIR 33 1955 SCR (5) 881
Indian Penal Code (Act XLV of 1860), ss.
120-A, 120-B-Criminal conspiracy-Two or more persons must be parties
thereto-One person alone cannot be held guilty-If other alleged co-conspirators
are acquitted of the charge.
According to the definition of criminal
conspiracy in s. 120-A' of the Indian Penal Code two or more persons must be
patties, to such an agreement and one person alone can never be held guilty of
criminal conspiracy for the simple reason that one cannot conspire with
Where, therefore, 4 named individuals as in
the present case eye charged with having committed an offence under s. 120-.B.
I.P.C. and three out of those four were acquitted of the charge, the fourth
accused could not be held guilty of the offence of criminal conspiracy.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 42 of 1955.
On Appeal by Special leave from the Judgment
and Order dated the 8th October 1954 of the Bombay High Court in Criminal
Appeal No. 315 of 1954 arising out of the Judgment and Order dated the 6th
January 1954 of the Court of the 4th Presidency Magistrate, Bombay in Cases
H. J. Umrigar, J. B. Dadachanji and Rajinder
Narain for the appellant.
Porus A. Mehta and P. G. Gokhale for the
1955. October 14. The Judgment of the Court
was delivered by BHAGWATI J.-The accused No. 1, the Appellant before us, and
accused Nos. 2, 3 and 4 were charged that they, at Bombay, between about June
1950 and November 1950, were parties to a criminal conspiracy by agreeing to do
certain illegal acts, to wit: Firstly, 882 that they used as genuine forged
bills of entry which included bills of entry Exhibit Z; Secondly, that they
-,heated the Deputy Chief Controller of Imports, Bombay, by fraudulently I and
dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an
import licence bearing No. 248189/48 to import cycles from United Kingdom of
the value of Rs. 1,98,960; Thirdly, that they cheated the Deputy Chief
Controller of Imports, Bombay, by falsely and dishonestly inducing him to
deliver to the firm of J. Sobhraj & Co., an import licence bearing No.
203056/48 to import watches from Switzerland of the value of Rs. 3,45,325; and
Fourthly, that they cheated the Deputy Chief Controller of Imports, Bombay, by
fraudulently and dishonestly inducing him to deliver to the firm of J. Sobhraj
& Co., an import licence bearing No. 250288/48 to import artificial silk
piece goods from Switzerland of the value of Rs. 12,11,829; and the above said
illegal acts were done in pursuance of the said agreement and that they thereby
committed an offence punishable under section 120-B of the Indian Penal Code.
There were also charges against all the
accused under section 471 read with section 465 and section 34 and also under
section 420 read with section 34 of the Indian Penal Code in respect of each of
the three illegal acts aforesaid.
The learned Presidency Magistrate, 23rd
Court, Esplanade, Bombay, tried all the accused for the said offences and
acquitted all of them. The State of Bombay thereupon took an appeal to the High
Court of Judicature at Bombay, and the High Court reversed the acquittal of
accused No. I and held him guilty of all the offences with which he had been
charged including the offence under section 120-B of the Indian Penal Code. The
acquittal of accused 2, 3 and 4 was confirmed.
The High Court, even though it acquitted
accused 2) 3 and 4 of the charge under section 120-B of the Indian Penal Code,
was of the opinion that the deed of assignment put forward by the accused No. I
in his defence was a false and fabricated document and the ,said document along
with its accompaniments was 883 forged or was got forged by or with the
knowledge or connivance of the accused No. 1 and his co-conspirators and it was
impossible to believe that this conspiracy carried out with such meticulous
care could be the work of only accused No. 1. There was no evidence on the
record to warrant any inference that the accused No. I was acting in the matter
in collaboration with any other 'co-conspirators and the only evidence was in
regard to the various acts alleged to have been done by accused 2, 3 and 4 in
the matter of the conspiracy and the furtherance of the objects thereof While
considering the question of sentence to be passed on the accused No. 1 who, in
spite of the circumstances aforesaid, was convicted of the offence under
section 120-B of the Indian Penal Code, the High Court observed that "the
conspirators, whoever they were, had shown considerable ingenuity and daring in
carrying out the object of the conspiracy and that it felt no hesitation in
Coming to the conclusion that it was not straitened circumstances or financial
difficulties which were the basis of the conspiracy but it was the greed for
money on such a large scale as could never be regarded as an extenuating
circumstance". It, therefore, directed that the accused No. I should
undergo rigorous imprisonment for 18 months for the offence under section 120-B
of the Indian Penal Code.
The application for leave to appeal to this
Court filed by accused No. 1 was rejected by the High Court. The accused No. 1
thereupon applied for and obtained special leave to appeal against the decision
of the High Court. The special leave was, however, limited to the question of
law, whether the conviction under section 120-B is maintainable in view of the
fact that the other alleged conspirators had been acquitted.
The charge as framed under section 120-B of
the Indian Penal Code was levelled against 4 named individuals, the accused
Nos. 1) 2, 3 and 4. It was not a charge against them and other persons unknown
with the result that if accused 2, 3 and 4 were acquitted of that charge, there
remained only accused No. 1 and 112 884 the question, therefore, arises for our
consideration whether, under the circumstances, the accused No. I could be
convicted of the offence under section 120-B of the Indian Penal Code.
Criminal conspiracy has been defined in
section 120-A of the Indian Penal Code:-"When two or more persons agree to
do or cause to be done (i) an illegal act, or (ii) an act which is, not illegal
by illegal means, such an agreement is designated a criminal conspiracy".
By the terms of the definition itself there ought to be two or more persons who
must be parties to such an agreement and it is trite to say that one person
alone can never be held guilty of criminal conspiracy for the simple reason
that one cannot conspire with oneself. If, therefore, 4 named individuals were
charged with having committed the offence under section 120B of the Indian
Penal Code, and if three out of these 4 were acquitted of the charge, the
remaining accused, who was the accused No. 1 in the case before us, could never
be held guilty of the offence of criminal conspiracy.
If authority for the above proposition were
needed, it is to be found in Archbold's Criminal Pleading, Evidence and
Practice, 33rd edition, page 201, paragraph 361:"Where several prisoners
are included in the same indictment, the jury may find one guilty and acquit
the others, and vice versa. But if several are indicted for a riot, and the jury
acquits all but two, they must acquit those two also, unless it is charged in
the indictment, and proved that they committed the riot together with some
other person not tried upon that indictment. 2 Hawk. c. 47.
s. 8. And, if upon an indictment for a
conspiracy, the jury acquit all the prisoners but one, they must acquit that
one also, unless it is charged in the indictment, and proved, that he conspired
with some other person not tried upon that indictment. 2 Hawk. c. 47. s. 8; 3 Chit.
Cr. L., (2nd ed.) 1141; R. v. Thompson, 16 Q.B.D. 832; R. v. Manning, 12.
Q.B.D. 241; R. v. Plummer  2 K.B.
The King v. Plummer ( 2 K.B. 339) which
is 885 cited in support of this proposition was a case in which, on a trial of
indictment charging three persona jointly with conspiring together, one person
had pleaded guilty and a judgment passed against him, and the other two were
acquitted. It was held -that the judgment passed against one who had pleaded
guilty was bad and could not stand.
Lord Justice Wright observed at page 343:"There
is much authority to the effect that, if the appellant had pleaded not guilty
to the charge of conspiracy, and the trial of all three defendants together had
proceeded on that charge, and had resulted in the conviction of the appellant
and the acquittal of the only alleged co-conspirators, no judgment could have
been passed on the appellant, because the verdict must have been regarded as
repugnant in finding that there was a criminal agreement. Between the appellant
and the others and none between them and him: see Harrison v. Errington
(Popham, 202), where upon an indictment of three for riot two were found not
guilty and one guilty, and upon error brought it was held a "void
verdict", and said to be "like to the case in 11 Hen. 4, c. 2,
conspiracy against two, and only one of them is found guilty, it is void, for
one alone cannot conspire"." Lord Justice Bruce at page 347 quoted
with approval the statement in the Chitty's Criminal Law, 2nd ed., Vol. III,
page 1141:"And it is holden that if all the defendants mentioned in the
indictment, except one, are acquitted, and it is not stated as a conspiracy
with certain persons unknown, the conviction of the single defendant will be
invalid, and no judgment can be passed upon him".
The following observations made by Lord
Justice Bruce are apposite in the context before us:"The point of the
passage turns upon the circumstance that the defendants are included in the
same indictment, and I think it logically follows from the nature of the
offence of conspiracy that, where two or more persons are charged in the same
indictment with conspiracy with another, and the indictment 886 contains no
charge of their conspiring with other persons not named in the indictment,
then, if all but one of the persons named in the indictment are acquitted, no
valid judgment can be passed upon the one remaining person, whether he has been
convicted by the verdict of a jury or upon his own confession, because, as the
record of conviction can only be made up in the terms of the indictment, it
would be inconsistent and contradictory and so bad on its face. The gist of the
crime of conspiracy is that two or more persons did combine, confederate, and
agree together to carry out the object of the conspiracy".
This position has also been accepted in
India. In Gulab Singh v. The Emperor (A.I.R. 1916 All. 141) Justice Knox
followed the case of The King v. Plummer, supra, and held that "it is
necessary in a prosecution for conspiracy to prove that there were two or more
persons agreeing for the purpose of conspiracy" and that "there could
not be a conspiracy of one".
To similar effect was the judgment in
King-Emperor v. Osman Sardar (A.I.R. 1924 Cal. 809) where Chief Justice
Sanderson observed that "the gist of an offence under section 120-B was an
alleged agreement between the two accused and when the jury found that one of
them was not a party to the agreement and acquitted him of that charge, it
followed as a matter of course that the other accused could not be convicted of
that charge. The assent of both of them was necessary to constitute the
agreement which was the basis of the charge".
Ratanlal in his Law of Crimes, 18th ed., page
270, has summarised the position as it emerges from the above two cases in the
manner following:"Where, therefore, three persons were charged with having
entered into a conspiracy, and two of them were acquitted, the third person
could not be convicted of conspiracy whether the conviction be upon the verdict
of a jury or upon his own confession".
The position in law is, therefore, clear that
on the charge as it was framed against the accused Nos. 1, 2 3 and 4 in this
case, the accused No. I could not 887 be convicted of the offence under section
120-B of the Indian Penal Code when his alleged co-conspirators accused 2, 3
and 4 were acquitted of that offence.
In our opinion, therefore, the conviction of
the accused No. I of the charge under section 120-B of the Indian Penal Code
was clearly illegal. The appeal of the accused No. 1 will, therefore, be
allowed to the extent that his conviction under section 120-B of the Indian
Penal Code and the sentence of rigorous imprisonment of 18 months awarded to
him as the result thereof would be quashed. We are not concerned here with the
conviction of the accused No I of the offences under section 471 read with
section 465 and also his conviction for each of the three offences under
section 420 of the Indian Penal Code and the concurrent sentences of rigorous
imprisonment for one year in respect of each of them passed by the lower Courts
upon him in regard to the same. These convictions and sentences will of course