Abuthagir & Ors Vs.
State Rep. by Inspector of Police,Madurai  INSC 984 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 26 OF 2007
Abuthagir and Ors. ...Appellants Versus State Rep. by Inspector of Police,
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madras High Court
upholding the conviction of the appellants for offence punishable under Section
302 read with Section 34, Section 120B and Section 148 of the Indian Penal
Code, 1860 (in short the `IPC'). However, the conviction and consequential
sentences imposed for offence punishable under Section 341 IPC was set aside.
facts in a nutshell are as follows:
Balan Alagiri (PW-5)
was working as a Superintendent of Madurai Central Prison during the period May
1996 to October 1998. During that period Krishnan (PW7), Chokkalingam (PW20)
were also working on 30/05/1997. One accused detained under TADA was brought
from Chennai Central prison and produced before Coimbatore Court and returned
back to Madurai Central Prison. When the Assistant Jailor Jayaprakash intend to
have body search and examination of identification marks the accused Sahul
Hameed refused to allow him to have body search and refused to show
identification marks. The intimation was given to PW 20. The accused was taken
to his office and was instructed to concede for body search. But he declined to
do so. The said Jayaprakash tried to remove the shirts. At the time the Sahul
Hameed has proclaimed that "Insha Allah! you have to answer for this"
after that he was examined and sent to 6th block and detained in a separate
cell. Whenever the relatives visit the jail, the Assistant Jailor Jayaprakash
used to verify the things as per rules and regulations.
Enraged by this, the
said Sahul Hameed had complained to PW-5 that the Assistant Jailor has
assaulted and insulted his religion.
Some members of an
association also made an agitation before the District Collector, and affixed
wall-posters. Sahul Hameed also reported the matter against the Jayaprakash to
his superior officers and gave a statement also. The association members of
Sahul Hameed also wrote a letter informing to identify the person who has
caused annoyance to him and we will teach him a lesson. The said letter was
received by PW5 and handed over to Superior Officer for further proceedings.
The letter sent to Sahul Hameed is Ex.P2 series. Letter containing some
religious verses is EX-P-3 and the cover is EX-P.4, printed format sent to a
High Court Judge of the Madras High Court.
This case relates to
an incident on 29.8.1997 around 3 p.m. near the central jail.
According to the
first report and the preliminary investigation of police, three or four
unidentified persons came on motor cycles and attacked the deceased with
sickles and knives and having killed him fled away. The usual investigation
proceeded without much progress on the identity of culprits. The C.B.C.I.D.
Police of the State took up further investigation.
Even they could not
get any clue immediately.
While the big break
through of the case is the Crime No.741/1998 of Kodambakkam Police Station; The
first appellant was arrested in that crime registered under Sections 120(b),
307 IPC. His interrogation disclosed the involvement of all the appellants and
the other absconding accused in this case. Resulting orders of police custody
of the appellants, and their interrogation leading to discovery of
incriminating facts under Section 27 of Indian Evidence Act, 1872 (in short the
`Act') connecting the accused with crime; the fact of arrest of appellants are
published in the media with their photographs. On seeing their photographs the
two witnesses i.e. PW3 and PW4 gave statements to police that they witnessed
the murder and appellants are the assailants. Later the charge sheet was laid.
As accused persons pleaded innocence, trial was held.
Saroja (PW-2) is a
Sugarcane vendor in front of Madurai Prison.
Shannlugam (PW-3) is
a mason, Lakshmi (PW-4) is doing Textile business.
PW3 has stated that 4
years before at about 3 P.M., when he was proceeding on the west to east by his
bicycle to Arsaradi in front of the Jail main gate, he found a sugar cane juice
vehicle and he was taking a sugar cane juice. At that time a person wearing
jail Sub-Inspector Uniform, was riding a bicycle near to Sugarcane vehicle two
Yamaha vehicles were parked. While the Sub-Inspector has crossed the sugar cane
vehicle the person has taken the Aruval from his blue colour jeans bag and
assaulted him on his neck and he has resisted by his left arm and also a cut injury
and he has fallen down.
Along with a person
who has assaulted, yet another 4 persons have inflicted injury by knife and
Aruval. After that three persons on one bike and two persons on another bike
has started proceeding towards east. The occurrence was seen by Saroja (PW2),
Shanmugam (PW-3) and PW4 Lakshmi.
On 29-8-1997 around 3
p.m. Mohammed Sulaiman (PW-1) when he was in the guard duty a person parked his
scooter and informed him that near to the prison main gate a Sub-Inspector who
was riding bicycle with uniform was assaulted by four persons and ran away
Immediately he rushed
to the spot and found that the Assistant Jailor Jayaprakash was found dead and
he has given intimation to his officers. On their instructions PW 1 has preferred
a complaint to the Karimedu P.S. The Inspector of Karimadu P.S, Mary George
(PW-21) has received the complaint EXP1 and preferred an F.I.R. EXP 27 and sent
to Magistrate and other officers. Subsequently she has visited the place of
occurrence and preferred observation mahazar in the presence of Alamarathan
(PW-6) and Pandi EXP 29 is a observation mahazar and ExP28 a rough sketch was
prepared. The police Photographer Shanmugasundaram (PW-18) has taken the
photographs of the place of occurrence and a dead body in different angles. MO
6 is a negative and MO 17 are Photographs. An inquest was conducted in the
presence of Panchayathar and inquest report was prepared and dead body was sent
through David Shamuvel (PW 19) for Post mortem.
MOs 19 to 24 were recovered
in the presence of PW-20 and witnesses were examined and evidences were
recorded. Dr. Maiyazagan (PW-12) has started post mortem on 30-8-1997 at 10.10
a.m. On receipt of the requisition which is ExP 15 from the Inspector (PW-21),
he found 21 injuries and the first injury would be the cause of death. And
injuries 2, 3 and 6 can cause death in natural course. Dr. Maiyazagan has
suggested that all the injuries together would cause death and the rest of
injuries, though it is simple would cause death in future. The injuries were
inflicted by a sharp edged weapon like Aruval and deep injury would cause by
one side sharped weapon and issued a post mortem certificate EX.P. 16.
After post mortem the
MOs 8 to 12 were seized and dead body handed over to his relatives and the
recovered material objects handed over to PW21. During the examination of PW21,
during the pendency of this case as per the order of government, the case was
handed over to CBCID, Madurai on 21-09-1997.
6 During the course
of investigation by the Inspector of CBCID, Sundaram (PW-22) on the basis of
statement given by Ist accused Abuthahir in connection with Kodambakkam
Cr.No.741/98, U/Ss. 307, 305 and 120(b) I.P.C, he came to know that all the
accused and the absconding accused Raja @ Tailor Raja have murdered
Jayaprakash. On 4-5-1998 accused Abuthakir was produced under PT warrant and
brought to Madurai and Police Custody was taken from 26-5-1998 to 30-5-1998 for
four days and he has given a confession before the Village Administrative Officer,
Sethu Ramasamy (PW9) and Thalaiyari Gancsh. On the basis of an admitted portion
of Ex.P.7 the Hotel Service occupance Register from 17-9- 1997 to 27-9-1997
MOI. Bill No.2501 dated 8-8-1997 to Bill No.2600 dated 2-9-1997 Cash Bill Book
M02, and lodge maintenance register for Room No.107 from 25-8-1997 to 16-5-1998
anti Room No. 111 from 2 1-8-1997 to 24-5-1998 maintenance register M04 were
recovered under EX.P-8.
Further the Model
signature denoted as R. Kumar was obtained in the presence of witnesses. MOs I
to 4 were recovered from PW 10 Mayavan, who is a lodge clerk and cashier.
Further an affixation for PT Warrant has been given to Accused Aasik and he was
remanded on 23-6-98 subsequently he was taken to police custody from 23.6.98 to
25.6.98 and he was examined in presence of Village Administrative Officer
(PW-14) Velusamy and Thalaiyari Shanmugavel and confession was recorded.
On the basis of an
admitted portion of Ex.P.33 in the presence of witnesses the accused was taken
to Trichy bus stand and was identified by the accused. Yamaha Motor Cycle (MO5)
was recovered from the two wheeler stand under ExP34. On 24.6.1998 he was sent
to Judicial Custody.
Further on 24-6-1998
an application was given for PT warrant for accused Aslam and Jafru, and they
were remanded on 2-7-1998. From 2-7-1998 to 3- 7-1998 accused were taken under
police custody and examined in the presence of the witnesses and confession was
recorded. As specimen signature name as David in Tamil as well as English was
obtained and the same was sent alongwith the accused for judicial custody on
Accused Jafru was
produced under PT warrant on 16.7.1998 and police custody was ordered from
16.7.1998 to 18-7-1998 on an application. He was examined and confession was
recorded in the presence of Village Administrative Officer Kamaraj (PW5) and
Thalaiyari Mohan. On the basis of an admitted portion of EX-P.35 he has taken
witnesses and the Inspector and identified the STD Booth, run by Ponnazlagu,
Tel.No.705564 situated on the Ist floor of Door No.66A, and he has confessed
that he has made a call to Chennai and in between the periods 27-7-1997 to
12-10-1997 the note book maintained in the office for day time, and charges for
Telephone calls were recovered under EX-P.26. The requisition was given to the
Manager, Tele Communication, Trichy for seeking the Computer printout for the
periods 18-8-1997 to 15-10-1997 regarding the communication to telephone
No.705564 and on 17-7-1998 the accused Jafru was remanded to Judicial Custody.
The requisition given
under EX-14 to Judicial Magistrate No.VI, Madurai for comparison of the
signature of the A 1 & A2 to hand writing Expert Murali (PW-11), Bakhyam
Hotel Cash receipt No.2590 dated 29-8- 1997 and the English Signature of David
was marked as Ql. Hotel receipt No.2589 dated 29-8-1997 the Carban Signature of
K. Kumar is "Q2" and Carbon signature of David in the lodge
attendance register dated 27-8-1997 at Page 564 is "Q3". Carbon
signature of K. Kumar in the lodge attendance register dated 27-8-1997 at Page
564 is "Q4". Specimen name of Aslam sent for report containing 10
papers Ex.P.11 letters marked as S1 to S60 as such specimen signature of
Abuthakir containing 6 papers which is EX.P 2 the letters were marked as S61 to
144 and after research PW 13 has given an opinion that the letters marked as S1
to S24 were written by a person who has signed Q3, S61 to S 144 letters were
written by a person who has signed Q2 and Q4.
Since accused Raja
was absconded the case was split up against him before the lower Court. Twenty
two witnesses were examined, 39 documents were exhibited and 25 material
objects were marked. The trial Court held that the prosecution had established
the accusations and accordingly convicted and sentenced them. Four of the
accused persons filed appeal before the High Court. Before the High Court the primary
stand was that PWs 3 and 4 stated to be the two eye witnesses. Identification
of the accused by PWs 3 and 4 was not established. The so called
discovery/recovery at the instance of the accused persons is not believable.
No motive was
established and no conspiracy was proved. The High Court held that the appeal
was sans merit. It did not find any substance in the plea of the appellants
that there was an inordinate delay in examination of PWs 3 and 4. So far as the
identification is concerned the High Court found that the stand of the
appellants that the identification was not truthful is not correct.
So far as the
discovery of the various photos, the High court noted that the circumstances of
the recovery on its own may not be sufficient to connect the accused, but the
cumulative effect of several factors coupled with the evidence of PWs 3 and 4
strengthened the case of the prosecution. It also held that the motive was
clearly established and so was the conspiracy.
re-iterating the stand taken before the High Court learned counsel for the
appellants submitted that on the purported basis of confession of A-3 that he
has informed through STD booth Trichi informing to Batcha Bai on a particular
telephone that he finished the matter, there was no corroboration.
counsel for the appellants submitted that incrimination materials were not put
to the accused in the examination under Section 313 of the Code of Criminal
Procedure, 1973 (in short the `Code'). Original prosecution case was that four
accused persons attacked the victim and there were no motor cyclists. The first
investigation suspected four different accused. The second investigation came
up with five different accused persons without any evidence against them
excepting their so called admission before the eye witnesses.
counsel for the respondent on the other hand supported the judgment of the
trial Court as affirmed by the High Court.
Devender Pal Singh v. State of N.C.T. of Delhi and Anr. (AIR 2002 SC 1661), it
was observed as follows:
terrorism is not restricted to one country, and it has become a matter of
international concern....Whether the criminal act was committed with an
intention to strike terror in the people or section of people would depend upon
the facts of each case".
Hithendra Vishnu Thakur v. State of Maharashtra (AIR 1994 SC 2623), it is held
"It is a common
feature that hardened criminals today take advantage of situation and by
wearing the cloak of terrorism, aim to achieve acceptability and respectability
in the society;
because in different
parts of the country affected by militancy, a terrorist is projected as a hero
by a group and often even by many misguided youth".. "Cynics have
often commented that one State's "terrorist" is another State's
Mohd. Khalid v. State of West Bengal (2002 (7) SCC 334) at para 46 it is
observed as follows:
is one of the manifestations of increased lawlessness and cult of violence.
Violence and crime constitute a threat to an established order and are a revolt
against a civilised society. "Terrorism" has not been defined under
TADA nor is it possible to give a precise definition of "terrorism"
or lay down what constitutes "terrorism". It may be 12 possible to
describe it as use of violence when its most important result is not merely the
physical and mental damage of the victim but the prolonged psychological effect
it produces or has the potential of producing on the society as a whole.
There may be death,
injury, or destruction of property or even deprivation of individual liberty in
the process but the extent and reach of the intended terrorist activity travels
beyond the effect of an ordinary crime capable of being punished under the
ordinary penal law of the land and its main objective is to overawe the
Government or disturb the harmony of the society or "terrorise"
people and the society and not only those directly assaulted, with a view to
disturb the even tempo, peace and tranquility of the society and create a sense
of fear and insecurity.
Harijana Thirupala and Ors. v. Public Prosecutor Andhra Pradesh (2002 (6) SCC
470), it was held as follows:
"11. In our
administration of criminal justice an accused is presumed to be innocent unless
such a presumption is rebutted by the prosecution by producing the evidence to
show him to be guilty of the offence with which he is charged. Further if two
views are possible on the evidence produced in the case, one indicating to the
guilt of the accused and the other to his innocence, the view favourable to the
accused is to be accepted.
In cases where the
court entertains reasonable doubt regarding the guilt of the accused the
benefit of such doubt should go in favour of the accused. At the same time, the
court must not reject the evidence of the prosecution taking it as false,
untrustworthy or unreliable on fanciful grounds or on the basis of conjectures
and surmises. The case of the prosecution must be judged as a whole having regard
to the totality of the evidence. In appreciating the evidence the approach of
the court must be integrated not truncated or isolated. In other words, the
impact of the evidence in totality on the prosecution case or innocence of the
accused has to be kept in mind in coming to the conclusion as to the guilt or
otherwise of the accused. In reaching a conclusion about the guilt of the
accused, the court has to appreciate, analyse and assess the evidence placed
before it by the yardstick of probabilities, its intrinsic value and the animus
of witnesses. It must be added that ultimately and finally the decision in
every case depends upon the facts of each case."
prosecution version has to be judged as a whole having regard to the totality
of the evidence. In appreciating the evidence the approach of the Court must be
integrated and not truncated or isolated. The Court has to appreciate in
reaching the conclusion about the guilt of the accused, analyse and assess the
evidence placed before it by the yardstick of probabilities, its intrinsic
value and the animus of the witnesses. Much emphasis has been led by learned
counsel for the appellants on the alleged delayed examination of the witnesses.
It is well settled that delay in examination of the prosecution witnesses by
the police during the course of investigation ipso facto may not be a ground to
create a doubt regarding the veracity of the prosecution's case. So far as the
delay in recording a statement of the witnesses is concerned no question was
put to the investigating officer specifically as to why there was delay in
recording the statement. Unless the investigating officer is categorically
asked as to why there was delay in examination of the witnesses the defence
cannot gain any advantage therefrom. It cannot be laid down as a rule of
universal application that if there is any delay in examination of a particular
witness the prosecution version becomes suspect.
It would depend upon
several factors. If the explanation offered for delayed examination is
plausible and possible and the Court accepts the same as plausible there is no
reason to interfere with the conclusion. (See Ranbir and Ors. v. State of
Punjab (AIR 1973 SC 1409), Bodhraj @ Bodha and ors. v. State of Jammu and
Kashmir (2002 (8) SCC 45), Banti @ Guddu v. State of M.P. (2004 (1) SCC 414)
and State of U.P. v. Satish (AIR 1004 SC 261). It is seen that the PWs 3 and 4
disclosed that they had witnessed the incident.
Before PW-22 their
evidence was recorded. The incident took place on 29.8.1997 and the accused
persons were arrested after about 8 months. Till the arrest of the accused the
statements of PWs 3 and 4 were not recorded under Section 161 of Code. After
arrest because their photos were published in the newspapers, that is how PWs 3
and 4 came to the police station on their own accord on two different occasions
and gave statements. It has been submitted by learned counsel for the
appellants that PWs 3 and 4 did not disclose the incident to any one. They have
no interest either for prosecuting the accused or making a statement in the
defence. They are independent witnesses. In such a case it is absurd to hold
that investigating officer had erred in recording the statement of PWs 3 and 4.
The investigating agency was making all possible efforts to know the names of
the witnesses. This factor cannot be doubted. If really as contended by learned
counsel for the appellants the prosecution wanted to tamper some witnesses they
could have immediately done so after the incident.
Bachittar Singh and Anr. v. State of Punjab (2002 (8) SCC 125), it was observed
by this Court as follows:
God Disposes" is exactly what has happened here. What the accused thought
was that they were committing a hidden crime without realizing that they had
left behind clinching evidence against themselves."
was noted by this Court in Vemireddy Satyanarayan Reddy and Ors. v. State of
Hyderabad (AIR 1956 SC 379) that it requires a courage in case of atrocity for
a simple man to come forward and proclaim the truth unmindful of the
consequences to himself. A witness is normally considered to be an independent
witness unless he springs from the sources which are likely to be tainted such
as enmity. Here again it would depend upon the facts of each case. In the
instant case, as PWs 3 and 4 have no enmity with the accused they are
independent and natural witnesses. They are not under the control of the police
and do not have in any sense any obligation to the police. Since they have
revealed the truth after long time after seeing the photos of the accused
persons, that cannot be a factor to discard their evidence. In Sardul Singh v.
State of Haryana (AIR 2002 SC 3462) it was held as follows:
"There cannot be
a prosecution case with a cast iron perfection in all respects and it is
obligatory for the courts to analyser sift and assess the evidence of record,
with particular reference to its trustworthiness and truthfulness, by a process
of dispassionate judicial scrutiny adopting apt objective and reasonable
appreciation of the same, without being obsessed by an air of total suspicion
of the case of the prosecution.
What is to be
insisted upon is not implicit proof. It has been often been said that evidence
of interested witnesses should be scrutinized more carefully to find out
whether it has a ring of truth... Courts have a duty to undertake a complete
and comprehensive appreciation of all vital features of the case and the entire
evidence with reference to the broad and reasonable probabilities of the case
also in their attempt to find out. proof beyond reasonable doubt".
was a mason by profession and PW-4 was a petty seller of sarees. Their courage
in coming forward to depose against the accused persons needs to be
appreciated. Here are two persons from the lowest status of the society who had
taken courage to stand up, picked and identified the accused persons. PWs 2 and
3 have stated that they witnessed the incident from a place which is just near
the Central Jail. In a bright day light the murder took place. Therefore, there
is no infirmity in the identification.
27 of the Indian Evidence Act, 1872 (in short the `Evidence Act') deals with
discovery. The same reads as follows:
"How much of
information received from accused may be proved- Provided that when any fact is
deposed to as discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly
to the fact thereby discovered, may be proved."
In the instant case
the following documents were relied upon:
1. Bakkim Lodge
2. Handwritings of
first and third appellants in the registers.
3. Impersonation as
Kumer and David.
evidence of PWs 10, 19 and 22 clearly proved the aforesaid recoveries and
discoveries. Apart from that there has been recovery of the material objects.
The investigator was able to locate the STD booth from where the accused talked
with others. This also is an important factor which was discovered at the
instance of known accused persons. The concept of conspiracy has been dealt
with by this Court in several cases. In Mohd. Khalid's case (supra), it was
held as follows:
"17. It would be
appropriate to deal with the question of conspiracy. Section 120-B IPC is the
provision which provides for punishment for criminal conspiracy. Definition of
"criminal conspiracy" given in Section 120-A reads as follows:
"120-A. When two
or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2)
an act which is not illegal by illegal means, such an agreement is designated a
Provided that no
agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties
to such agreement in pursuance thereof."
The elements of a
criminal conspiracy have been stated to be:
(a) an object to be
accomplished, (b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons
whereby, they become definitely committed to cooperate for the accomplishment
of the object by the means embodied in the agreement, or by any effectual
means, and (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. Law making
conspiracy a crime, is designed to curb immoderate power to do mischief which
is gained by a combination of the means. The encouragement and support which
co-conspirators give to one another rendering enterprises possible which, if
left to individual effort, would have been impossible, furnish the ground for
visiting conspirators and abettors with condign punishment. The conspiracy is
held to be continued and renewed as to all its members wherever and whenever
any member of the conspiracy acts in furtherance of the common design. (See
American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable
under Section 120-B, the prosecution need not necessarily prove that the
perpetrators expressly agreed to do or caused to be done an illegal act; the
agreement may be proved by necessary implication. The offence of criminal
conspiracy has its foundation in an agreement to commit an offence. A
conspiracy consists not merely in the intention of two or more, but in the
agreement of two or more to do an unlawful act by unlawful means. So long as
such a design rests in intention only, it is not indictable. When two agree to
carry it into effect, the very plot is an act in itself, and an act of each of
the parties, promise against promise, actus contra actum, capable of being
enforced, if lawful, punishable if for a criminal object or for use of criminal
18. No doubt in the
case of conspiracy there cannot be any direct evidence. The ingredients of the
offence are that there should be an agreement between persons who are alleged
to conspire and the said agreement should be for doing an illegal act or for
doing by illegal means an act which itself may not be illegal. Therefore, the
essence of criminal conspiracy is an agreement to do an illegal act and such an
agreement can be proved either by direct evidence or by circumstantial evidence
or by both, and it is a matter of common experience that direct evidence to
prove conspiracy is rarely available. Therefore, the circumstances proved before,
during and after the occurrence have to be considered to decide about the
complicity of the accused.
20 xx xx xx
21. 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."
Devender Pal Singh's case (supra) it was held in paras 50 and 51 as follows:
"50. In Kehar
Singh v. State (Delhi Admn.) (AIR 1988 SC 1883 at p. 1954) this Court observed:
(SCC pp.732-33 para 275) "275. Generally, a conspiracy is hatched in
secrecy and it may be difficult to adduce direct evidence of the same. The
prosecution will often rely on evidence of acts of various parties to infer
that they were done in reference to their common intention. The prosecution
will also more often rely upon circumstantial evidence. The conspiracy can be
undoubtedly proved by such evidence direct or circumstantial. But the court
must enquire whether the two persons are independently pursuing the same end or
they have come together to the pursuit of the unlawful object. The former does
not render them conspirators, but the latter does. It is, however, 21
essential that the offence of conspiracy required some kind of physical
manifestation of agreement. The express agreement, however, need not be proved.
Nor actual meeting of two persons is necessary. Nor is it necessary to prove
the actual words of communication. The evidence as to transmission of thoughts
sharing the unlawful design may be sufficient."
Conspiracy can be
proved by circumstances and other materials.
(See State of Bihar
v. Paramhans Yadav (1986 Pat LJR 688) "To establish a charge of conspiracy
knowledge about indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of unlawful use being made of the
goods or services in question may be inferred from the knowledge itself.
This apart, the
prosecution has not to establish that a particular unlawful use was intended,
so long as the goods or services in question could not be put to any lawful
use. Finally, when the ultimate offence consists of a chain of actions, it
would not be necessary for the prosecution to establish, to bring home the
charge of conspiracy, that each of the conspirators had the knowledge of what
the collaborators would do, so long as it is known that the collaborator would
put the goods or services to an unlawful use." (See: State of Maharashtra
v. Som Nath Thapa (1996 (4) SCC 659)
51. Where trustworthy
evidence establishing all links of circumstantial evidence is available, the
confession of a co- accused as to conspiracy even without corroborative
evidence can be taken into consideration. (See Baburao Bajirao Patil v. State
of Maharashtra (1971 (3) SCC 432). It can in some cases be inferred from the
acts and conduct of the parties. (See Shivnarayan Laxminarayan Joshi v. State
of Maharashtra (1980 (2) SCC 465)."
is a minor discrepancy pointed out as to what PWs 3 and 4 have spoken about the
manner of arrival of the motor riders. PW-3 stated that they came when the
deceased was crossing the road while PW-4 stated that they were already there.
This is too a trivial matter to corrode the credibility of the witnesses who
were being examined after a length of time. The impugned judgment does not
suffer from any infirmity to warrant interference.
appeal is dismissed.
(Dr. ARIJIT PASAYAT)