TMI Blog2004 (3) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved 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 Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udwara 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 enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose 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 (Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary. 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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