Esher Singh Vs. State of Andhra Pradesh [2004] Insc 165 (15 March 2004)
Doraiswamy
Raju & Arijit Pasayat.
WITH CRIMINAL
APPEAL NOS.1523 and 1524/2003 ARIJIT PASAYAT,J
The
matrix of these three appeals is a judgment rendered by the III Additional
Metropolitan Session Judge, Hyderabad acting as the Designated court under the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the
'TADA').
Nine
persons were alleged to be responsible for homicidal death of one Joga Singh
(hereinafter referred to as the 'deceased'). Five of them faced trial and one
of them Nishan Singh (A-3) died during the trial and therefore the case abated
so far he is concerned. The accused persons who faced trial were Esher Singh
(A-1), Nanak Singh Nishter (A- 2), Nishan Singh (A-3), Dilbagh Singh (A-4) and Rajender
Singh Dhingra (A-6). Ram Singh (A-9) absconded. Charge sheet was filed against
A-1 to A-9 for offences punishable under Sections 120B and 302 read with
Section 120B of the Indian Penal Code, 1860 (in short the 'IPC'), Section 3(3)
of TADA and Section 27 of the Indian Arms Act, 1959 (in short the 'Arms Act'),
read with Sections 5 and 6 of TADA.
The
trial Court found that accused Esher Singh, (appellant in Crl.A. No. 1363/2003)
was guilty of offence punishable under Section 4 of TADA and while further
holding that the other allegations were not established so far as appellant Esher
Singh and other co-accused are concerned.
Esher
Singh was convicted as afore-noted and sentenced to suffer rigorous
imprisonment for five years and to pay a fine of Rs.1,000/- with default
stipulation. While Esher Singh questions legality of the conviction and
sentence imposed, the State of Andhra Pradesh
has questioned acquittal of the accused persons who faced trial, and their
non-conviction for the charged offences.
The
State's appeal is numbered as Criminal Appeal No.1524/2003. Balbir Singh son of
deceased Joga Singh has filed Criminal Appeal NO.1523/2003 with grievances
similar as that of the State of Andhra Pradesh.
Accusations
which led to the trial of the accused persons are essentially as follows:
Accused
persons conspired to kill deceased Joga Singh, to abet terrorist and disruptive
activities. Deceased had established many educational institutions to serve
Sikh community like Gurunanak Hospital in 1969, Gurunanak Public School Bidar in 1975, Gurunanak School at Hyderabad in 1978 and could successfully
establish Gurunanak Dev Engineering College at Bidar in August, 1980. Accused persons intended to take
over the said institutions and make a base for Khalisthan movement. After
"Operation Blue Star" which wounded the religious feelings of Sikhs,
the Pro-Khalistan militant Sikh Students Organisation had its watchful eyes on
Sikh student population of Bidar to establish its base.
Dilbagh
Singh (A-4) an activist of all India Sikh Students Federation (AISSF) who was
studying in II year in the Gurunanak Dev Engineering College came in contact with Deepender
Singh (A-5) who was student of Regional Engineering College, Balky. Others involved were some wanted activists of
AISSF. After proposed move of the Government of India to have a comprehensive
legislation for all Gurudwaras, the deceased Joga Singh created a trust in the
name of Shree Nanak Jheera Sahib Trust (Foundation) and transferred all the
Educational Institutions to the trust while delinking religious activities of
the Gurudwara to Gurudwara Nanak Jheera Sahib and Mai Bhago. Deceased continued
to be the head of both the trust and Gurudwara.
Esher
Singh (A-1) who was working as Sub-Inspector of Central Reserve Police Force
left the service after "Operation Blue Star" and started moving about
in Hyderabad City wearing Bhindranwale type garments and organised
processions carrying Bhindranwale pictures and held Bhog ceremony at Gowliguda Gurudwara,
Hyderabad. He was making efforts to inject
hatred and disaffection among the Sikhs and could successfully take over the Barambala
Gurudwara at Rajendranagar, Attapur in Sikh Chavani and successfully tried to
bring some militant youth under his fold and indoctrined Pro-Khalistan ideology
by imparting training to them in Shastra Vidya and Karate at Sikh Chavani Attapur
and Gowliguda. He also attempted to advocate the said ideology in Bidar among
the students. Nanak Singh Nishter (A-2) who was president of Central Gurudwara,
Gowliguda and also an Executive Member of Shree Nanak Jhira Sahib, Bidar, and Gurudwara
Mai Bhago at Janwada was actively assisting the deceased in his religious
activities, felt disappointed and aggrieved by his non-inclusion as member of
the Trust of Prabhandak Committee, Nanak Jheera Trust in 1987. Nishan Singh
(A-3) was residing in Bidar since September 1987 as representative of Baba Charan
Singh who was incharge of Karseva of Kurukshetra Gurudwara.
Attempts
to pursue deceased Joga Singh to transfer the Kar Seva agreement in his name cancelling
the earlier agreement of Baba Charan Singh did not yield any result. A-1 to A-3
developed hatred against the deceased, and launched tirade against the deceased
with a view to take over the seat of the deceased. Dilbagh Singh (A-4) a native
of Amritsar and active member of All India Sikh
Student Federation, Punjab, sought his admission in Gurunanak Dev Engineering College, Bidar, and started enlisting students from North India into his Pro-Khalistan activities
and became close associate of A-3. Deepender Singh (A-5), resident of Nabha, Patiala, and student of Rural Engineering College, Bhalki which is at a distance of
40 kms. from Bidar came in contact with A-1 and A-3 and was frequently visiting
Dhera of Karseva. A-1 and others were rigorously pursing their plan and
propagating Pro-Khalistan ideology among Sikh students of Bidar Rajender Singh Dhingra
(A-6) of Hind Motor Driving School and Sony Travels and relative of A-2 is
staunch supporter of A-1. Mohinder Singh (A-7) a native of Haryana, a
proclaimed offender and terrorist of Punjab who was involved in number of terrorist cases was also close associate
of A-3. Gurmail Singh (A-8) of Punjab is also
a terrorist of Punjab and participated in various crimes alongwith
A-5, A-7 and A-9.
Ram
Singh (A-9) also is a wanted terrorist of Punjab who participated in the present occurrence.
A-1
and A-2 who were entertained for their religious affiliation misused the same
by collecting donations from students seeking admissions in Gurunanak Dev Engineering College, Bidar. On coming to know of the same, deceased discarded
them. Movement started by deceased to start a Medical College heightened the tensions which was
building up with the arrival of some Sikh boys from North India.
Several
non-Sikh educational institutions joined hands to organise an agitation against
granting of permission to start medical college, because they feared that it
would be further increasing the number of Sikhs to about 1200, of which 1000
from North India having anti-established stands.
There
was organised violence and riots in September, 1988, in which six Sikh students
were killed, besides many were injured and houses and shops of Sikhs were
damaged and burnt, besides religious institutions. A-1 to A-3 who were waiting
for an opportunity to make their inroads to contain the growing influence of
the deceased Joga Singh and also to occupy his position, made number of visits
to Bidar, contacted A-3, A-4 and A-5 and other militant Sikhs having Pro-Khalistan
ideas for starting tirade against the deceased Joga Singh. They also started an
active propaganda that contributions made by the Sikh community to the
educational trust were misused with a view to deprive the Sikh community. They
also accused the deceased of many improprieties including indifference to the
security of Sikhs. At the instance of A-1 and A-2, a meeting of Sikh community
was convened on 22.9.1988 at Sikh Hostel Narayanguda, Hyderabad to pay homage to departed souls of
students who were killed in Bidar riots. In the meeting A-1 and A-2 proposed to
hold Deewan-E Aam on 2.10.88 at Bidar Gurudwara with an ulterior motive of
defaming and excommunicating the deceased and trustees and usurp the control of
Gurudwara and the trust. A-1, A-2, A-3, A-4, A-6 and others marshalled their
associates, and mustered their strength having successfully augmented majority
among the students who attended. A-1 and A-2 gave highly inflammatory speeches
making wild allegations against the deceased and levelling allegations of
mal-administration of religious funds of the community, made the deceased
responsible for the misery to Sikh students and accused him of having failed in
his responsibility to protect the Sikhs at Bidar. In that way A-1 to A-3 could
successfully make a dent in establishing a base for Pro-Khalistan movement and
trying to get support of those who were openly opposing the deceased Joga
Singh. A-1 and A-2 made their own henchmen as Punj Pyaras and imposed
punishment of "Thankayya" on the deceased and four others holding
them responsible for the death of Sikh students and for their religious
impropriety.
The
deceased and his supporters resisted the said move and the matter was referred
to Thakhat Such Khand Shri Hazur Saheb, Nanded, which is considered as Southern
region religious head of the Sikh community. Hazura Singh (DW-36) who is one of
the Punj Pyaras of Nanded Gurudwara made enquiries from A-1 and deceased,
disapproved the move of A-1 of ex-communication and imposition of punishment on
the deceased. A-1 questioned the propriety of decision taken by Hazura Singh
(DW-36), but later obeyed the religious order.
Accused
persons proclaimed that they will retaliate if the culprits are not booked
before 23rd November, 1988 (i.e. Guru Nanak Jayanthi) as a
part of terrorist activity to create terror in the minds of moderate Sikhs.
On
28.12.1988, two vehicles bearing Nos. AHS 9424 AHA 1168 which were carrying
sixty ceiling fans were burnt by mob of students in Gurudwara premises. In that
regard a case i.e. Cr. No. 422/88 U/Ss. 143, 211, 136 r/w 149 IPC was
registered at Gandhigunj P.S. of Bidar District against unknown students in
which the complicity of A-4 was strongly suspected. A-1 and A-2 started
printing, publishing and circulating highly inflammatory, defamatory propaganda
against the deceased Joga Singh, instigating student community against the
deceased with a view to bring them under their fold and propagate Pro-Khalistan
among Sikh community and organise an organisation, calling itself as "SIKH
COMMANDO FORCE". They threatened the Government with dire consequences
under the pretext of championing the cause of Sikh Community.
Deceased
was apprehensive of A-1 and his associates and made earnest appeal to the
authorities concerned requesting to contain the anti-national activities, for
protection and also to take steps to contain the Pro-Khalistan activities.
As a
security measure, check post was established on the outskirts of Bidar to check
the vehicles in which the Sikhs were entering into Bidar and systematically
check and numbers noted with a view to prevent inflow of wanted Pro- Khalistan
activities and arms and ammunition. Another check post was established at the
entrance of Gurdwara, Bidar, besides various other major steps for tightening
security at Bidar Gurudwara under charge of M. Srivastava, Superintendent of
Police, Bidar. One officer was also posted as Personal Security Officer to the
deceased with a service revolver and ammunitions.
A-1 to
A-3 intensified their war against the deceased by abusing, threatening,
intimidating him. By the end of 1988 A-1 to A-3 could successfully establish
contact with the underground dreaded terrorist Mohinder Singh (A-7) in Nanded
who was taking his shelter there. Thereafter A-7 shifted to Bidar alongwith his
family and took shelter with A-3 in his Dhera as a Kar Sevadar. A-5, A-8 and
A-9 used to frequently move in the company of Kar Sevadar alongwith A-3, A-4
and A-7. A-8 approached Dayal Singh (PW-32), Avtar Singh (PW-26) and other
residents of Hyderabad and requested them to join hands with them in removing
deceased from being a religious head. A-7 shifted to Hyderabad and got
accommodation through PW-26 at Hyderabad. A-1 and A-2 held secret meetings in Kishan
Bagh Chavani and made efforts to enlist services of Sikh youth to liquidate
deceased Joga Singh. A-1, A-2, A-3, A-4, A-5 to A-9 held number of meetings in
the house of A-2.
In the
month of February 1989, during the examination of B.E. II year at G.N.D.E.
College, numbers of students including A-4 were caught while they were
indulging in mal- practices. At that time deceased refused to interfere with
the enquiry in the matter. At that time, A-3 and A-4 nourished hatred against
the deceased. A-1 to A-9 entered into criminal conspiracy to do away with
deceased. A-1 was mastermind of conspiracy for liquidating the deceased. A-5
and A-7 were entrusted with the job of securing weapons. A-2 and A-3 provided
shelter and finance for the operation, A-1 was entrusted to select youth for
operation of annihilation, while A-6 was to provide information and conveyance.
A-8 and A-9 were entrusted with execution of annihilation of deceased. In
pursuance of said conspiracy, A-5 and A-9 went to Punjab and secured A.K.47
rifles, one .32 revolver and 200 rounds of ammunition. The accused persons
surveyed the topography of proposed scene of offence and were noticed late in
the night of 29.3.89. On 24.3.89 A-1, A-7, A-8 and A-9 alongwith Professor Darshan
Singh Ragi visited Bidar when the latter attended Keertan arranged by some
devotees.
At
that time, the plan of action proposed to liquidate Joga Singh could not be
executed. A-8 through A-6 secured a red colour Maruti Car bearing Registration
No. AEY 222 belonging to PW-11 on payment of Rs.64,000/-. A-7, A-8 and A-9
visited Bidar on 28.3.1989 in the said Maruti Car and contacted A-3, A-4 and
A-5 to track down the movements of deceased Joga Singh. In pursuance of said
criminal conspiracy, A-5, A-7, A-8 and A-9 went to the house of deceased in the
red colour Maruti Car while A-5 was waiting in the Car. A-8 armed with a .32
Revolver was guarding at the scene. A-7 and A-9 entered the house armed with
AK.47 assault rifle. On 30.3.89 at about 21.05 hours, while PW-1 was serving
dinner while other family members of deceased were witnessing the T.V. in the
drawing-cum-dining hall, A-7 and A-9 entered into the drawing cum dinning hall,
opened fire with A.K. Assault rifle, pumped bullets on Joga Singh who succumbed
to gun shot injuries and on seeing the same Devender Singh (PW-1) and Balwanth
Singh (PW-2) raised cries, tried to chase them, but the A-7 and A-9 while
retreating fired at them indiscriminatively to scare them away. PW-1 chased
them upto main road and came to know through P. Satyanarayan ( PW-8) that 4 to
5 persons fled away in a red Maruti Car towards Darussalam while scaring the
public by opening fire in the air. A-5, A-7 and A-9 returned to the house where
they were staying and tried to quit the house immediately.
Meanwhile
Darshan Singh (PW-14) and others surrounded the house in which A-5, A-7 and
A-9, tried to apprehend them, but they fled away into the dark. A-8 who made
attempt to escape on Luna bearing Registration No. AEA 1326 was surrounded by
them. He left the Luna and took to heels and he was chased by them and on
finding no way to escape, he fired in the air to scare them and finally shot
himself dead with his Revolver.
On
receipt of the complaint a case (Cr.No.63/89) under Section 302 IPC and
Sections 25 and 27 of the Arms Act was registered, inquest was conducted over
the dead body, and it was sent for post mortem. Blood stained clothes of the
deceased, empty cartridges and spent bullets were seized under panchanamas.
Residential portion of house of A-7 was searched and a driving license, a
receipt, H.P. Gas cylinder, clothes, utensils and other household articles were
seized. Naganath (PW-15) identified A-7 to be Mohinder Singh alias Satwender
Singh @ Satta involved in number of terrorist cases in Punjab and Haryana. C. Narasingha
Rao (PW-47) seized the application form, reservation slip written by A-5 for
himself and A-9 for their return journey from Delhi to Hyderabad. Subsequently
A-7 was killed in an encounter in the intervening night of 16/17-5-1989. In
that regard also one A.K. rifle was seized from his possession which was
deposited in the Court of Judicial Magistrate of First Class, Sangrur. A-3,
A-6, and A-5 were arrested on 3.4.1989, 7.4.1989 and 20.4.1989 respectively.
Confessional statement of A-5 was recorded under TADA and A-2 and A-1 were
arrested on 27.4.1989 and 11.5.1989 respectively.
The
trial Court on the basis of evidence tendered by PWs 16 and 32 as corroborated
by the confessional statement of A-5 held that the accused appellant Esher
Singh had committed the offence punishable under Section 4 of TADA. It was
concluded that A-1 was giving provocative speeches for formation of Khalistan
and was inciting violence fanning the religious feelings. Therefore the
accusations clearly established commission of offence punishable under Section
4 of TADA. It further came to hold that the other accusations were not
established. It was noted that the two assailants who fired the guns leading to
the death of the deceased were not identified. Since some of the statements made
in Court were not stated during investigation, the trial Court did not attach
any importance thereto.
In
support of the appeal filed by accused Esher Singh, Mr. R.K. Jain learned
senior counsel submitted that the evidence of PWs 16 and 32 do not prove the
accusations. It was not stated during investigation regarding the need for
establishing Khalistan or about the claim alleged to have been made that the
accused appellant was Deccan Bhindrawala. Merely because he was wearing clothes
of a particular colour, that also did not establish commission of any offence.
Statements made for the first time in court without having been told during
investigation should not have been acted upon by the trial Court. No specific
instance of the so called statements that allegedly led communal dis-harmony or
fanning of religious feelings, and the nature of provocation alleged to have
been made in the speeches for formation of Khalistan was stated. The alleged
confessional statement could not be relied upon because A-5 who was claimed to
have made the confession died on 13.4.1991, even before the charges were framed
and therefore was not admissible in law. Even otherwise, the so called
confessional statement was recorded when the custody of A-5 was illegal as was
observed by the High Court of Andhra Pradesh in Writ Petition No.14403/1989 The
High Court has categorically held that the custody was illegal for the period
between 31.3.1989 and 1.10.1989. Reference was made to Kalpnath Rai v. State
(Through CBI) (1997 (8) SCC 732) to contend that the conclusions drawn by the
trial Court were erroneous. In essence, it was submitted that the trial Court
was not justified in convicting the accused Esher Singh.
Learned
counsel for the State submitted that A-5 had categorically stated about the
involvement of A-1. Not only PWs 16 and 32 but other witnesses i.e. PWs 1, 3,
14, 17, 19, 21 and 24 spoke in detail about the role played by various accused
persons. The evidence of PW-21 has not been discarded and the evidence of PW-24
should not have been dis-believed on mere surmises. The role played by accused Esher
Singh was graphically described by the prosecution witnesses and the trial
Court has noted them. Therefore, the consideration should not have been
restricted only to the evidence of PWs 16 and 32. The pamphlet distributed were
published by A-1 and it clearly indicates what was in the mind of accused
persons regarding giving a boost to the Khalistan movement and creating
communal disturbances and disharmony. The evidence of certain witnesses has
been discarded on the ground of relationship, which is not the correct
approach. Merely because A-5 died before charges were framed, that does not
affect the confessional statement which has been held to be voluntary. On the
peculiar facts of the case, when initially A-5 was not arrayed as an accused
subsequently the doubts regarding certain aspects were set right by this Court
and proceedings continued so far as A-5 is concerned, the fact that he died
before framing of charge cannot affect the authenticity of his confessional
statement. Even if for the sake of argument it is conceded that the same was
not to be acted upon in terms of Section 15 of TADA, yet by operation of
Section 30 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') it
can be considered. Initially, the trial Court had held that TADA had no
application to the facts of this case but this Court held that TADA applies.
There is no magical charm in the expression "charged and tried" used
in Section 15 of TADA. It can very well mean charged for trial. A person can be
treated to be charged when allegations are made and not necessarily when
charges are framed. The confession of a co- accused is in the nature of
substantive nature and Kalpnath Rai's case (supra) has been over-ruled in State
Through Superintendent of Police,CBI/SIT v. Nalini and Ors. (1999 (5) SCC 253).
The chain of circumstances were clearly established, the car used for
commission of the offence was traced and therefore the circumstances clearly
established that the accused respondents along with others named were
responsible for the killing of deceased and therefore the acquittal from
offence relatable to Section 120B and 302 cannot be maintained. The use of the
car standing near the house of the deceased and the purchase and sale of the
car are links which have been overlooked. The circumstances like association of
an accused with others, and sharing of common/similar animus against the
deceased have been established. A-1 and A-2 had strong animosity and motive so
far as deceased is concerned. The movement in the close proximity of the house
of deceased Joga Singh clearly brings out the patent object and conspiracy has
been well established. According to the prosecution version, two persons
entered, fired and killed. The search for the accused started immediately when
people came running. One person who was traveling on a Luna was chased
committed suicide. There is evidence to show that he was A-8. The materials on
record show that the deceased A-5 was connected with accused Gurmail and this
also provides an additional link to the chain of circumstances. The motive of
the crime has been spoken to by various witnesses. The animosity of A- 1 so far
as deceased is concerned is well brought out by the evidence which shows that
because of deceased's refusal to pay money he was killed. Prior to that, he was
ex- communicated, was receiving threatening letters and was being made
responsible for the killing of six Sikh students through riots. Significance of
the statement relating to the Blue Star Operation and the proclamation of A-1
to be Deccan Bhindrawala are circumstances of great significance. The deceased
accused was falsely claiming to be one Mohinder Singh, and had got an identity
card in that name. But the evidence shows that he was A-8. His presence in the
car used for get away and the evidence showing that he knew A-1 closely and
that they were meeting and moving together has been established. Ext. P-18
shows that in October 1988 there was a demand of money. These aspects have not
been properly considered.
The
rigor of Section 15 TADA which is diluted after the amendment has also been
noted in Nalini's case (supra) and has full application to the facts of the
case. A-5 was shown as an accused in the charge sheet. Subsequently there was
an order of discharge, which was set aside by this Court so far as proceedings
under TADA are concerned.
Learned
counsel for Balbir Singh, the son of the deceased Joga Singh adopted the
submissions made by learned counsel for the State. Additionally, according to
him, the too technical interpretation of the expression "charged and
tried" would not be in line with the legislative intent.
The
Act has been enacted to take care of all terrorist activities. Since direct
evidence is hard to find because of fear psychosis created by the accused
persons and normally people try to remain behind doors. Special provisions
relating to nature of substantive evidence have been provided in TADA. Both
learned counsel for the State and Balbir Singh submitted that this is a fit
case where Section 3(3) of TADA and offences under the IPC have been clearly
found established.
We
shall first deal with the question whether confessional statement of A-5 can be
acted upon. Section 15 reads as follows:
"15.
Certain confessions made to police officers to be taken into consideration. –
(1)
Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of
1872), but subject to the provisions of this section, a confession made by a
person before a police officer not lower in rank than a Superintendent of
Police and recorded by such police officer either in writing or on any
mechanical device like cassettes, tapes or soundtracks from out of which sounds
or images can be reproduced, shall be admissible in the trial of such person or
co-accused, abettor or conspirator for an offence under this Act or rules made thereunder
:
Provided
that co-accused, abettor or conspirator is charged and tried in the same case
together with the accused.
(2)
The police officer shall, before recording any confession under sub-section
(1), explain to the person making it that he is not bound to make a confession
and that, if he does so, it may be used as evidence against him and such police
officer shall not record any such confession unless upon questioning the person
making it, he has reason to believe that it is being made voluntarily."
(Underlined for emphasis) Crucial words in the provision are "charged and
tried". The use of the expression "charged and tried" imposes cumulative
conditions. Firstly, the two persons who are the accused and the co-accused in
the sense used by the Legislature under Section 15, must be charged in the same
trial, and secondly, they must be tried together. Kalpnath Rai's case (supra)
has been overruled in Nalini's case (supra) making the position clear that the
confession of a co-accused is substantive evidence.
Section
2(b) of the Code of Criminal Procedure, 1973 (in short the 'Code') defines
"charge" as follows:
"2(b)
'charge' includes any head of charge when the charge contains more heads than
one:" The Code does not define what a charge is. It is the precise
formulation of the specific accusation made against a person who is entitled to
know its nature at the earliest stage. A charge is not an accusation made or
information given in abstract, but an accusation made against a person in
respect of an act committed or omitted in violation of penal law forbidding or
commanding it. In other words, it is an accusation made against a person in respect
of an offence alleged to have been committed by him. A charge is formulated
after inquiry as distinguished from the popular meaning of the word as implying
inculpation of a person for an alleged offence as used in Section 224 of IPC.
Chapter
XVII of the Code deals with "charge". Section 211 thereof deals with
content of charge. Section 273 appearing in Chapter XXIII provides that
evidence is to be taken in presence of the accused. The person becomes an
accused for the purpose of trial after the charges are framed. The expression
used in Section 15 TADA is "charged and tried". The question of
having a trial before charges are framed does not arise. Therefore, the only
interpretation that can be given to the expression "charged and tried"
is that the use of a confessional statement against a co-accused is permissible
when both the accused making the confessional statement and the co-accused are
facing trial after framing of charges. In State of Gujarat v. Mohammed Atik and
Ors. (1998 (4) SCC 351) this position was highlighted. Unless a person who
charged faces trial along with the co-accused the confessional statement of the
maker of the confession cannot be of any assistance and has no evidentiary
value as confession when he dies before completion of trial. Merely because at
some stage there was some accusation, unless charge has been framed and he has
faced trial till its completion, the confessional statement if any is of no
assistance to the prosecution so far as the co-accused is concerned. In fact, in
para 10 in Mohammed Atik's case (supra) it was observed that when it was
impossible to try them together the confessional statement has to be kept out
of consideration.
So far
as application of Section 30 of Evidence Act is concerned, in Nalini's case (supra)
this question was examined and it was held in paragraphs 90 and 91 as follows:
"90.
But the amendment of 1993 has completely wiped out the said presumption against
a co- accused from the statute-book. In other words, after the amendment a Designated Court could not do what it could have
done before the amendment with the confession of one accused against a
co-accused. Parliament has taken away such empowerment. Then what is it that
Parliament did by adding the words in Section 15(1) and by inserting the
proviso? After the amendment the Designated Court could use the confession of one accused against another
accused only if two conditions are fulfilled :
(1)
The co-accused should have been charged in the same case along with the
confessor.
(2) He
should have been tried together with the confessor in the same case.
Before
amendment the Designated
Court had no such
restriction as the confession of an accused could have been used against a co-
accused whether or not the latter was charged or tried together with the
confessor.
91.
Thus the amendment in 1993 was a clear climbing down from a draconian
legislative fiat which was in the field of operation prior to the amendment
insofar as the use of one confession against another accused was concerned. The
contention that the amendment in 1993 was intended to make the position more
rigorous as for a co-accused is, therefore, untenable. " So far as the
appeal filed by accused Esher Singh is concerned, the basic question is that
even if the confessional statement purported to have been made by A-5 is kept
out of consideration, whether residuary material is sufficient to find him
guilty. Though it is true as contended by learned counsel for the
accused-appellant Esher Singh that some statements were made for the first time
in Court and not during investigation, it has to be seen as to what extent they
diluted the testimony of Balbeer Singh and Dayal Singh (PWs 16 and 32) used to
bring home the accusations. A mere elaboration cannot be termed as discrepancy.
When the basic features are stated, unless the elaboration is of such nature
that it creates a different contour or colour of the evidence, the same cannot
be said to have totally changed the complexion of the case. It is to be noted
that in addition to the evidence of PWs 16 and 32, the evidence of S. Narayan
Singh (PW-21) provides the necessary links and strengthens the prosecution
version. We also find substance in the plea taken by learned counsel for the
State that evidence of Amar Singh Bungai (PW-24) was not tainted in any way,
and should not have been discarded and dis-believed only on surmises. Balbeer
Singh (PW-3) the son of the deceased has also stated about the provocative
statements in his evidence. Darshan Singh (PW-14) has spoken about the speeches
of the accused Esher Singh highlighting the Khalistan movement. We find that
the trial Court had not given importance to the evidence of some of the
witnesses on the ground that they were relatives of the deceased. The approach
is wrong. Mere relationship does not dis-credit the testimony of a witness.
What is required is careful scrutiny of the evidence. If after careful scrutiny
the evidence is found to be credible and cogent, it can be acted upon. In the
instant case, the trial Court did not indicate any specific reason to cast
doubt on the veracity of evidence of the witnesses whom it had described to be
the relatives of the deceased. PW-24 has categorically stated about the
provocative speeches by A-1. No definite cross- examination on provocative nature
of speech regarding Khalistan movement was made, so far as this witness is
concerned.
Section
4 of TADA reads as under:
"4.
Punishment for disruptive activities. –
(1)
Whoever commits or conspires or attempts to commit or abets, advocates,
advises, or knowingly facilitates the commission of, any disruptive activity or
any act preparatory to a disruptive activity shall be punishable with
imprisonment for a term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to fine.
(2)
For the purposes of sub-section (1), "disruptive activity" means any
action taken, whether by act or by speech or through any other media or in any
other manner whatsoever, -
(i)
which questions, disrupts or is intended to disrupt, whether directly or
indirectly, the sovereignty and territorial integrity of India; or
(ii) which
is intended to bring about or supports any claim, whether directly or
indirectly, for the cession of any part of India or the secession of any part of
India from the Union.
Explanation. - For the purposes of this sub-
section, - (a) 'cession' includes the admission of any claim of any foreign
country to any part of India, and (b) 'secession' includes the assertion of any
claim to determine whether a part of India will remain within the Union.
(3)
Without prejudice to the generality of the provisions of sub-section (2), it is
hereby declared that any action taken, whether by act or by speech or through
any other media or in any other manner whatsoever, which –
(a) advocates,
advises, suggests or incites; or
(b) predicts,
prophesies or pronounces or otherwise expresses, in such manner as to incite,
advise, suggest or prompt, the killing or the destruction of an person bound by
oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be
deemed to be a disruptive activity within the meaning of this section.
(4)
Whoever harbours or conceals, or attempts to harbour or conceal, any disruptionist
shall be punishable with imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for life and shall also be
liable to fine."
The
evidence makes the position crystal clear so far as accusations against
appellant Esher are concerned.
Section
4 of TADA covers a wide range of disruptive activities. It not only encompasses
commission of disruptive activities, but also conspiracy, attempt, abetment,
advocating, advising or facilitation of such activity or an act preparatory to
such activity. What is disruptive activity is described in sub-section (2) of
Section 4. Sub- section (3) further widens the coverage of generality given by
sub-section (2). For the purpose of applying sub-section (2), the explanation
appended thereto assumes great significance for the case at hand; more
particularly in view of the inclusive definition of "secession".
Demand for Khalistan is clearly encompassed by the said definition.
The
ingredients necessary to bring in application of Section 4 of TADA have been
clearly established. Therefore, the appeal filed by Esher Singh is devoid of
merit and stands dismissed as the sentence imposed is found to be commensurate
with the gravity of the offence and also needs no interference.
Coming
to the appeal filed by Balbir Singh, we shall first deal with the objection
regarding maintainability of the appeal, as learned counsel for the accused Esher
Singh has questioned maintainability thereof.
A
doubt has been raised in many cases about the competence of a private party as
distinguished from the State, to invoke the jurisdiction of this Court under
Article 136 of the Constitution of India, 1950 (in short the 'Constitution')
against a judgment of acquittal by the High Court. We do not see any substance
in the doubt. Appellate power vested in this Court under Article 136 of the
Constitution is not to be confused with ordinary appellate power exercised by
appellate courts and appellate tribunals under specific statutes. It is a
plenary power, 'exercisable outside the purview of ordinary law' to meet the
pressing demands of justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh
(AIR 1954 SC 520). Article 136 of the Constitution neither confers on anyone
the right to invoke the jurisdiction of this Court nor inhibits anyone from
invoking the Court's jurisdiction. The power is vested in this Court but the
right to invoke the Court's jurisdiction is vested in no one. The exercise of
the power of this Court is not circumscribed by any limitation as to who may
invoke it. Where a judgment of acquittal by the High Court has led to a serious
miscarriage of justice this Court cannot refrain from doing its duty and
abstain from interfering on the ground that a private party and not the State
has invoked the Court's jurisdiction. We do not have slightest doubt that we
can entertain appeals against judgments of acquittal by the High Court at the
instance of interested private parties also. The circumstance that the Code
does not provide for an appeal to the High Court against an order of acquittal
by a subordinate Court, at the instance of a private party, has no relevance to
the question of the power of this Court under Article 136. We may mention that
in Mohan Lal v. Ajit Singh (1978 (3) SCC 279) this Court interfered with a
judgment of acquittal by the High Court at the instance of a private party. An
apprehension was expressed that if appeals against judgments of acquittal at
the instance of private parties are permitted there may be a flood of appeals.
We do not share the apprehension. Appeals under Article 136 of the Constitution
are entertained by special leave granted by this Court, whether it is the State
or a private party that invokes the jurisdiction of this Court, and special
leave is not granted as a matter of course but only for good and sufficient
reasons, well established by the practice of this Court.
Above
was the view expressed by this Court in Arunachalam v. P.S.R. Sadhanantham and Anr.
(1979 (2) SCC 279). The view has again been reiterated by the Constitution
Bench in P.S.R. Sadhanantham v. Arunachalam and Anr. (1980 (3) SCC 141).
It is
to be seen whether the broad spectrum spread out of Article 136 fills the bill
from the point of view of "procedure established by law". In express
terms, Article 136 does not confer a right of appeal on a party as such but it
confers a wide discretionary power on this Court to interfere in suitable
cases. The discretionary dimension is considerable but that relates to the
power of the Court.
Article
136 is a special jurisdiction. It is residuary power; it is extraordinary in
its amplitude, its limits, when it chases injustice, is the sky itself. This
Court functionally fulfils itself by reaching out to injustice wherever it is
and this power is largely derived in the common run of cases from Article 136.
Is it merely a power in the court to be exercised in any manner it fancies? Is
there no procedural limitation in the manner of exercise and the occasion for
exercise? Is there no duty to act fairly while hearing a case under Article 136,
either in the matter of grant of leave or, after such grant, in the final
disposal of the appeal? There cannot be even a shadow of doubt that there is a
procedure necessarily implicit in the power vested in this Court. The founding
fathers unarguably intended in the very terms of Article 136 that it shall be
exercised by the judges of the highest Court of the land with scrupulous
adherence to settled judicial principles, well established by precedents in our
jurisprudence.
It is
manifest that Article 136 is of composite structure, is power-cum-procedure -
power in that it vests jurisdiction in this Court and procedure in that it
spells a mode of hearing. It obligates the exercise of judicial discretion and
the mode of hearing so characteristic of the court process with the avowed
purpose of averting miscarriage of justice. In the instant case, both the State
and Balbir Singh (son of the deceased) have questioned correctness of the
impugned judgment. Appeal filed by Balbir Singh is first in point of time. We
are of the view that on the facts of the case, there is no question of holding
the appeal filed by Balbir Singh to be not maintainable.
The
aspects highlighted by learned counsel for the State and Balbir Singh do not
disturb the positive conclusions of the trial Court about the absence of any
positive and cogent evidence so far as the respondents except accused Esher
Singh is concerned. None of the witnesses examined on behalf of the prosecution
stated anything about the descriptive particulars of the assailants. There was
also no evidence of A-1 indulging in any manner armed with firearms or
explosives. The evidence of witnesses goes only to the extent of showing, as
noted earlier that A-1 was giving provocative speeches for formation of Khalistan
and inciting the Sikhs for violence fanning the religious feelings. The
evidence shows that A-1 was inciting the Sikhs to form separate Khalistan State and making Hyderabad as
base for Khalistan movement.
Merely
because the accused A-1 was holding the deceased, as alleged, to be responsible
for the killing of six Sikh students that per se does not prove conspiracy.
Section
120B of IPC is the provision which provides for punishment for criminal
conspiracy. Definition of 'criminal conspiracy' given in Section 120A reads as
follows:
"120A-
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
criminal conspiracy;
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 co-operate for the accomplishment of the
object by the means embodied in the agreement, or by any effectual means,
(d) in
the jurisdiction where the statute required an overt act. The essence of a
criminal conspiracy is the unlawful combination and ordinarily the offence is
complete when the combination is framed. From this, it necessarily follows that
unless the statute so requires, no overt act need be done in furtherance of the
conspiracy, and that the object of the combination need not be accomplished, in
order to constitute an indictable offence. Law making conspiracy a crime, is
designed to curb immoderate power to do mischief which is gained by a
combination of the minds. 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 encompass all its members wherever and whenever any
member of the conspiracy acts in furtherance of the common design. (See:
American Jurisprudence Vol.II See 23, p. 559).
For an
offence punishable under section 120-B, prosecution need not necessarily prove
that the perpetrators expressly agree to do or cause to be done illegal act;
the agreement may be proved by necessary implication. 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
means.
No
doubt in the case of conspiracy there cannot be any direct evidence. The
ingredients of 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 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.
In Halsbury's
Laws of England (vide 4th Ed. Vol.11, page 44, page 58), the English Law as to
conspiracy has been stated thus:
"Conspiracy
consists in the agreement of two or more persons to do an unlawful act, or to
do a lawful act by unlawful means. It is an indictable offence at common law,
the punishment for which is imprisonment or fine or both in the discretion of
the Court.
The
essence of the offence of conspiracy is the fact of combination by agreement.
The agreement may be express or implied, or in part express and in part
implied. The conspiracy arises and the offence is committed as soon as the
agreement is made; and the offence continues to be committed so long as the
combination persists, that is until the conspiratorial agreement is terminated
by completion of its performance or by abandonment or frustration or however,
it may be. The actus rues in a conspiracy is the agreement to execute the
illegal conduct, not the execution of it. It is not enough that two or more
persons pursued the same unlawful object at the same time or in the same place;
it is necessary to show a meeting of minds, a consensus to affect an unlawful
purpose. It is not, however, necessary that each conspirator should have been
in communication with every other." There is no difference between the
mode of proof of the offence of conspiracy and that of any other offence, it
can be established by direct or circumstantial evidence. (See: Bhagwan Swarup Lal
Bishan Lal etc.etc vs. State of Maharashtra [AIR 1965 SC 682 at p.686]) It was
held that the expression "in reference to their common intention" in
Section 10 is very comprehensive and it appears to have been designedly used to
give it a wider scope than the words "in furtherance of" in the
English law; with the result, anything said, done or written by a
co-conspirator, after the conspiracy was formed, will be evidence against the
other before he entered the field of conspiracy or after he left it.
Anything
said, done or written is a relevant fact only.
"as
against each of the persons believed to be so conspiring, as well as for the
purpose of proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it".
"In
short, the section can be analysed as follows:
(1)
There shall be a prima facie evidence affording a reasonable ground for a court
to believe that two or more persons are members of a conspiracy;
(2) if
the said condition is fulfilled, anything said, done or written by any one of
them in reference to their common intention will be evidence against the other;
(3) anything
said, done or written by him should have been said, done or written by him
after the intention was formed by any one of them;
(4) it
would also be relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he entered the
conspiracy or after he left it, and
(5) it
can only be used against a co-conspirator and not in his favour."
We are
aware of the fact that direct independent evidence of criminal conspiracy may
not ordinarily and is generally not available and its existence invariably is a
matter of inference except as rare exceptions. The inferences are normally deduced
from acts of parties in pursuance of a purpose in common between the
conspirators. This Court in V.C.Shukla v. State (Delhi Admn.) (1980 2 SCC 665) held that to prove criminal
conspiracy there must be evidence direct or circumstantial to show that there
was an agreement between two or more persons to commit an offence. There must
be a meeting of minds resulting in ultimate decision taken by the conspirators
regarding the commission of an offence and where the factum of conspiracy is
sought to be inferred from circumstances, the prosecution has to show that the
circumstances give rise to a conclusive or irresistible inference of an
agreement between two or more persons to commit an offence. As in all other
criminal offences, the prosecution has to discharge its onus of proving the
case against the accused beyond reasonable doubt. The circumstances in a case,
when taken together on their face value, should indicate the meeting of the
minds between the conspirators for the intended object of committing an illegal
act or an act which is not illegal, by illegal means. A few bits here and a few
bits there on which the prosecution relies cannot be held to be adequate for
connecting the accused with the commission of the crime of criminal conspiracy.
It has to be shown that all means adopted and illegal acts done were in
furtherance of the object of conspiracy hatched. The circumstances relied for
the purposes of drawing an inference should be prior in point of time than the
actual commission of the offence in furtherance of the alleged conspiracy.
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.
The
provisions of Section 120A and 120B, IPC have brought the law of conspiracy in India in line with the English Law by
making the overt act unessential when the conspiracy is to commit any
punishable offence. The English Law on this matter is well settled. Russell on
Crime (12 Ed.Vol.I, p.202) may be usefully noted- "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." Glanville Williams in the "Criminal
Law" (Second Ed. P. 382) states- "The question arose in an lowa case,
but it was discussed in terms of conspiracy rather than of accessoryship. D,
who had a grievance against P, told E that if he would whip P someone would pay
his fine. E replied that he did not want anyone to pay his fine, that he had a
grievance of his own against P and that he would whip him at the first
opportunity. E whipped P. D was acquitted of conspiracy because there was no
agreement for 'concert of action', no agreement to 'co-operate'.
Coleridge,
J. while summing up the case to Jury in Regina v. Murphy [(1837) 173 ER 502 at p. 508] states:
"I
am bound to tell you, that although the common design is the root of the
charge, it is not necessary to prove that these two parties came together and
actually agreed in terms to have this common design and to pursue it by common
means, and so to carry it into execution. This is not necessary, because in
many cases of the most clearly established conspiracies there are no means of
proving any such thing and neither law nor common sense requires that it should
be proved. If you find that these two persons pursued by their acts the same
object, often by the same means, one performing one part of an act, so as to
complete it, with a view to the attainment of the object which they were
pursuing, you will be at liberty to draw the conclusion that they have been
engaged in a conspiracy to effect that object. The question you have to ask
yourselves is, had they this common design, and did they pursue it by these
common means the design being unlawful." As noted above, the essential
ingredient of the offence of criminal conspiracy is the agreement to commit an
offence. In a case where the agreement is for accomplishment of an act which by
itself constitutes an offence, then in that event no overt act is necessary to
be proved by the prosecution because in such a situation, criminal conspiracy
is established by proving such an agreement. Where the conspiracy alleged is
with regard to commission of a serious crime of the nature as contemplated in
Section 120B read with the proviso to sub-section (2) of Section 120A, then in
that event mere proof of an agreement between the accused for commission of
such a crime alone is enough to bring about a conviction under Section 120B and
the proof of any overt act by the accused or by any one of them would not be
necessary. The provisions, in such a situation, do not require that each and
every person who is a party to the conspiracy must do some overt act towards
the fulfillment of the object of conspiracy, the essential ingredient being an
agreement between the conspirators to commit the crime and if these
requirements and ingredients are established, the act would fall within the
trapping of the provisions contained in section 120B [See: S.C. Bahri v. State
of Bihar (AIR 1994 SC 2420)] The conspiracies are not hatched in open, by their
nature, they are secretly planned, they can be proved even by circumstantial
evidence, the lack of direct evidence relating to conspiracy has no
consequence. [See: E.K. Chandrasenan v. State of Kerala (AIR 1995 SC 1066)].
In Kehar
Singh and Ors. v. The State (Delhi Administration) [AIR 1988 SC 1883 at p.
1954], this Court observed:
"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, 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 the two persons is
necessary. Nor it is 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 [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 service 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 collaborator would do so, so long as it is known that the collaborator
would put the goods or service to an unlawful use. (See: State of Maharashtra
v. Som Nath Thapa [JT 1996 (4) SC 615]) 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 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 IPC.
In
Ajay Agarwal vs. Union of India and Ors. (JT 1993 (3) SC 203), it was held as follows:- x x
x x x x "8.....It is not necessary that each conspirator must know all the
details of the scheme nor be a participant at every stage.
It is
necessary that they should agree for design or object of the conspiracy.
Conspiracy
is conceived as having three elements:
(1) agreement;
(2) between
two or more persons by whom the agreement is effected; and
(3) a
criminal object, which may be either the ultimate aim of the agreement, or may
constitute the means, or one of the means by which that aim is to be
accomplished. It is immaterial whether this is found in the ultimate objects.
The common law definition of 'criminal conspiracy' was stated first by Lord
Denman in Jones' case that an indictment for conspiracy must "charge a
conspiracy to do an unlawful act by unlawful means" and was elaborated by
Willies, J. on behalf of the judges while referring the question to the House
of Lords in Mulcahy v. Reg and House of Lords in unanimous decision reiterated
in Quinn v. Leathem:
'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, or to do a lawful act by
unlawful means.
So
long as such a design rest in intention only, it is not indictable. When two
agree to carry it into effect, the very plot is an act in itself, and the act
of each of the parties, promise against promise, actus contra actum, capable of
being enforced, if lawful; punishable of for a criminal object, or for the use
of criminal means.' This Court in B.G. Barsay v. State of Bombay held:
"The
gist of the offence is an agreement to break the law. The parties to such an
agreement will be guilty of criminal conspiracy, though the illegal act agreed
to be done has not been done. So too, it is an ingredient of the offence that
all the parties should agree to do a single illegal act. It may comprise the
commission of a number of acts. Under Section 43 of the Indian Penal Code, an
act would be illegal if it is an offence or if it is prohibited by law."
In Yash Pal Mittal v. State of Punjab [(1977)
4 SCC 540] the rule was laid as follows: (SCC p. 543 para 9) "The very
agreement, concert or league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and every detail of the
conspiracy as long as they are co-participators in the main object of the
conspiracy. There may be so many devices and techniques adopted to achieve the
common goal of the conspiracy and there may be division of performances in the
chain of actions with one object to achieve the real end of which every
collaborator must be aware and in which each one of them must be interested.
There must be unity of object or purpose but there may be plurality of means
sometimes even unknown to one another, amongst the conspirators. In achieving
the goal several offences may be committed by some of the conspirators even
unknown to the others. The only relevant factor is that all means adopted and
illegal acts done must be and purported to be in furtherance of the object of
the conspiracy even though there may be sometimes misfire or overshooting by
some of the conspirators.
In
Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra (1981)
2 SCC 443, it was held that for an offence under Section 120B IPC, the
prosecution need not necessarily prove that the perpetrators expressly agreed
to do or cause to be done the illegal act, the agreement may be proved by
necessary implication." After referring to some judgments of the United
States Supreme Court and of this Court in Yash Pal Mittal's case (supra) and
Ajay Aggarwal's case (supra) the Court in State of Maharashtra v. Som Nath Thapa
(referred to in Kehar Singh's case (supra) summarized the position of law and
the requirements to establish the charge of conspiracy, as under: (SCC p. 668, para
24).
"24.
The aforesaid decisions, weighty as they are, lead us to conclude that 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 service in question could not be put to nay
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
collaborator would do, so long as it is known that the collaborator would put
the goods or service to an unlawful use." [Also see State of Kerala v. P. Sugathan and Anr. (2000 (8)
SCC page 203); and Devender Pal Singh v. State of N.C.T. of Delhi and Anr. (2002 (5) SCC 234)] Even in the light of the
principles highlighted above when the evidence is tested, the inevitable
conclusion is that the trial Court was justified in holding that accusations
under Section 120B were not made out so far as the offences under IPC are
concerned. So far as the motive for the killing is concerned, the evidence is
clear to the extent that A-1 wanted removal of the deceased from the bodies of
various trusts and educational institutions and not his removal from this
world. In the absence of adequate material to establish commission of offences
punishable under Section 302 or 302 read with Section 120B and Section 3(3), 5
and 6 of TADA and Section 27 of the Arms Act, as rightly held to have been not
established by the trial Court, the appeals filed by the State and Balbir Singh
are without merit. In the ultimate, all the three appeals are without merit and
are dismissed.
Back