TMI Blog2001 (8) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... PC, Section 302 read with section 120-B IPC and sections 34,109,143, 148, 201, 201 read with sections 34, 109 and 120-B and section 194 IPC and also under section 27 of the Arms Act. The learned Additional Sessions Judge by the judgment dated 17.1.1995 found the appellants guilty and sentenced them to undergo imprisonment for life under section 120-B and to undergo a similar sentence under section 302 read with section 120-B and section 34 IPC. The appellants were also found guilty and sentenced to undergo RI for five years under section 201 read with section 120-B and section 34 IPC. The appellants were found not guilty of the offences charged under different sections of the IPC and sections 25 and 27 of the Arms Act. Accused Nos.14 and 16 were found not guilty and were acquitted of all charges. Against the judgment of the Sessions Court, Accused nos.7 and 9 filed criminal appeal No.145/95, Accused nos.3, 4 and 5 filed Criminal Appeal No.167/95 and Accused no.15 filed Criminal Appeal No.218/95. All the three appeals were dismissed by the High Court by judgment dated 17.10.1997, which is under challenge in these appeals. The prosecution case, shorn of unnecessary details, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. P22 which was stated as the FIR and Crime No.229/89 was registered. Thereafter Jaya Prakash PW 90, Circle Inspector took charge of the investigation. Subsequently on 1.5.1989 V. Narayanan PW 100 Circle Inspector, Crime Branch took over the investigation. The investigation was also handled by P.E. Bhaskara Kurup Deputy S.P. (PW 101) Special Investigation team. Subsequently the investigation was taken over by Varghese P. Thomas, Dy. Supdt of Police, CBI(PW 107) from PW 101 by order of the DIG CBI dated 19.7.90 who on completion of the investigation filed the chargesheet against 19 accused persons on 7.1.1992. As noticed earlier, after excluding the three accused persons who turned approvers, 16 were sent up for trial and after deleting the 8 absconding accused the remaining eight accused Nos. 3,5,7,9,14,15 and 16 stood the trial. All the accused persons pleaded not guilty to the charges. They denied their involvement in the case altogether and alleged that they were falsely implicated in the case. The learned trial Judge in his judgment, which covers 115 pages, has discussed in great detail the entire genesis of the case starting from the time when the deceased had cordial rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 44 which was relied upon by the prosecution. He has also discussed the evidence of PW 23 who was a retired Junior Commissioned Officer of the Army who had been hired for killing the deceased and his associate Aboobacker -PW 8 but had failed to carry out the task at the last moment. In para 60 the learned trial Judge has dealt with at length the contentions raised on behalf of the defence to attack the testimony of PW 23 and has given cogent reasons for not accepting the same. The learned trial Judge has also placed reliance on the documentary evidence i.e. Exhibits P-23, 24, and 25 which were proved to be in the handwriting of the accused persons. From para 67 the learned trial Judge has discussed the evidence pertaining to the incident on 29th April, 1989. On this aspect of the case the learned trial Judge has considered the evidence of PWs 4, 5 and 6 who were examined by the prosecution as eye-witnesses to the incident. The learned trial Judge has very fairly pointed out the short-comings in the evidence of PWs 4 and 6 regarding identification of the accused persons. Regarding the evidence of PW 5 who identified A-4, A-5 and A-15 in the test identification parade and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the defence regarding non-examination of certain persons by the prosecution and has rejected the contentions giving cogent reasons. In para 121 of the judgment, the learned trial Judge has recorded the finding that the testimony of PWs 88 and 89 clearly proves that both the Magistrates have duly complied with the requirements of S.306 Cr.P.C in tendering pardon to PWs 1 to 3 and recording the reasons therefor. The conspiracy angle of the case has been discussed from para 129 onwards of the judgment. Referring to the decisions of this Court like N.M.M.Y.Momin v. State of Maharashtra (AIR 1971 SC 885), S.C.Bahri v. State of Bihar (AIR 1994 SC 2420), Kehar Singh Ors. Vs. State (Delhi Administration), 1989 Crl.L.J.1, the learned trial Judge observed, and in our view rightly, that it is settled law that criminal conspiracy can be proved by circumstantial evidence. Relying on the provisions of Section 10 of the Evidence Act, the learned trial Judge has held in para 135 of the judgment that the prosecution has succeeded in establishing conspiracy to murder Hamza and that A3, A4, A5, A7, A9 and A15 were responsible for the death of Hamza. On the findings recorded, the learned trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard like PW-7 wife of the deceased, PW-44 a trader in Kanhangad, PW-76 an officer of the DRI and placed reliance on the documentary evidence like Exhibits P 26, 27, 43, 44, 45. On the discussions of the evidence on the point, the High Court recorded the finding : The plea of issue of estoppel was rightly repelled and we agree with the correctness of the findings and observations in this regard in paragraphs 53 to 56 of the judgment. We also agree that the court below was right in the light of circumstances and the evidence of PWs 7, 8, 44, 53 and 76 that the first accused Pakistan Abdul Rahiman was the owner of the gold that was seized from the two cars from Thalappady and that seizure was made possible as per the advance information, evidenced by Ext.P 27. Thereafter the High Court has proceeded to consider in detail the evidence of PW 8 regarding the smuggling activities which the deceased and the witness had carried on jointly with accused no.1 and his associates; after seizure of the consignment of gold the threat to life given by A-1 to the deceased and the witness. In this regard the High Court referred to the evidence of PWs 7, 8, 11, 23 and 44 and has taken note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after the incident the vehicles were taken to different places; a fiat car was traced at Goa on the information furnished by PW 1 and was seized by PW-101 in Ex.P-96; that the jeep was taken to Bangalore at the instance of A-7 by PW-66 and 93 whose evidence showed the direct involvement of A-7 who paid remuneration for taking the jeep and ultimately the jeep being sold to PWs 71 and 72 as scrap and its engine MO 84 being seized under Ex.P-106. The High Court further observed that the role of PW 23 and Pemmayya played at the instance of A-2 and A-15 was not without significance even if the actual murder was not in contemplation; that the exercise sought through them was to give a signal to the deceased of the impending danger to his life. The High Court concluded :The several items of evidence and circumstances established beyond doubt that there was a criminal conspiracy to murder Hamza at the instance of the first accused, in which A3 to 5, A7, 9 and 15, who stood trial, were involved as co-conspirators. The High Court concluded its judgment with the following observations/findings: Criminal conspiracy is not easy to prove. The conspirators invariably deliberate, plan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Section 120B, which prescribes in sub-section (1) the punishment for criminal conspiracy provides : Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each coconspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not 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. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable. We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy. In the case of Kehar Singh and Others v. State (Delhi Administration, (1988) 3 SCC 609, a bench of three learned Judges in paras 271 to 276 held : Before considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means the design being unlawful? It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy. 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 in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Aggarwal case wherein Ramaswamy, J. stated that the law has developed several or different models or techniques to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other, a role that aides succeeding parties in accomplishing the criminal objectives of the conspiracy. The illustration given was what is done in the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen, retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers know that the middlemen must sell to retailers; and the retailers know that the middlemen must buy from importers. Thus the conspirators at one end of the chain know that the unlawful business would not, and could not, stop with their buyers, and those at the other end know that it had not begun with their settlers. The action of each has to be considered as a spoke in the hub there being a rim to bind all the spokes together in a single conspiracy. The aforesaid decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a view to facilitate an attack on the passengers by the said mob. In spite of the request of passengers he did not start the bus before the mob and had some discussion with the persons of that mob. Thereafter the mob came near the bus and assaulted the passengers. That was the conspiracy alleged by the prosecution. If really the bus had stopped because of the mob coming in front of it then it was not necessary for him to get down from the bus. He could have disclosed his identify even by remaining in the bus. In view of the evidence of the eyewitnesses, the explanation given by him has to be regarded as false. His conduct is also inconsistent with his innocence. The stopping of the bus at a place where there was no necessity to stop it, his getting down from the bus and going across the road right up to the entrance of the Rajpura Pole and talking to the persons in the said mob leads to an irresistible inference that he not only facilitated the attack on the passengers by stopping the bus just opposite the assembly to attack the passengers. Thus an agreement between him and the said unlawful assembly is satisfactorily established by the prosecution and therefore his conviction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. 5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. 6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose A conspirator is not responsible, however, for acts done by a coconspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies. 10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120-A is brought out pithily by this Court in E.G.Barsay v. State of Bombay (1962) 2 SCR 195 (SCR at p.228) thus: 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 not 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. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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