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CASE NO.: Appeal (crl.) 699 1998

PETITIONER: SAJU

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       15/11/2000

BENCH: K.T.Thomas, R.P.Sethi

JUDGMENT:

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     SETHI, J.

     Ms.Jameela  a  young muslim woman was found killed  on 18.9.1991  by Baiju, allegedly hired killer at Vattolikadavu road  after  having received stab injuries.  PW1, the  elder brother  of the deceased lodged the First Information Report in  Police Station Ayyuampuzha without naming any person  as accused.   At  the  time of her death, the deceased  was  in advance  stage of pregnancy.  Accused No.1, namely, Biju was arrested  on  19.9.1991.  The lungi and shirt MOs 12 and  13 respectively worn by him at the time of crime were seized as per Mahazar (P16).  After recording his disclosure statement MO1,  the  weapon of offence was recovered from  the  bushes where  he  had allegedly hidden it.  Accused No.2  was  also arrested  in connection with the murder of Ms.Jameela  after three  days of the occurrence.  Upon trial both the  accused were  found guilty of the offences punishable under Sections 120B  and 302 besides Section 109 of the Indian Penal  Code. They  were  sentenced  to undergo  life  imprisonment.   The appellant was also imposed a fine of Rs.10,000/- and in case of  default, directed to under rigorous imprisonment for two years.   Aggrieved  by the judgment of the  Sessions  Court, both  the accused persons filed appeal before the High Court which  was dismissed on 1.4.1997 vide the judgment  impugned in  this appeal.  This Court on 14.7.1998 dismissed the  SLP in  so  far as it related to Accused No.1, namely, Biju  and granted  leave only with respect to the appellant Saju.  The case  of the prosecution is that Jameela, a young  unmarried woman  of  24 years of age had developed  illicit  relations with  the  appellant,  with  the   result  that  she  became pregnant.   She insisted that the appellant should marry her but her request was declined on the ground that the marriage was  not possible because Jameela and the appellant belonged to  different  religions.  The appellant is stated  to  have quarreled  with  the  deceased  for which  Jameela  filed  a complaint  against  him  at   Police  Station   Ayyuampuzha. Jameela  did  not accede to the advise of the  appellant  to have  abortion.  On the date of occurrence she is stated  to have  gone to the hospital at about 11 a.m.  for a check  up

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and  on  her way back she visited her sister Amina (PW9)  at about  2.30 p.m.  After she left the residence of her sister she  was  fatally  stabbed  by Accused No.1,  Biju  who  had followed  her from the bus stop where she had alighted  from the  bus.   After  inflicting  the stab  injuries  the  said accused  left  the  place of occurrence.   The  offence  was alleged to have been committed by Accused No.1 in conspiracy with  Accused  No.2 who wanted to get rid of  the  deceased. Admittedly  there  is no eye-witness in the case  which  the prosecution  has  sought to prove by leading  circumstantial evidence.   The  Trial Court summed up the circumstances  as under:   "(1)  Jameela  and  the  second  accused  who  were residents of the Kalady Plantation Estate engaged themselves in  love affair and had quarreled when the former  disclosed that  she  was  pregnant and she also  disclosed  about  her pregnancy to her mother (PW6) and other close relations like PW9 and 18.

     (2)  Jameela  requested 2nd accused to marry  her  and that was turned down by second accused because they belonged to different religions.

     (3)  When  the  close relatives of  Jameela  persuaded second  accused  to marry Jameela since she became  pregnant through  him,  second accused proclaimed that she would  not allow   Jameela  to  deliver   the  child.   Second  accused manhandled  Jameela in connection with this dispute and that was seen by her neighbours and there was also involvement of the police.

     (4)  The  conduct  of the accused on the  fateful  day (both  accused were seen together on the date of  occurrence by  several  persons  and from PW.  11’s tea shop  they  had taken food.

     (5)  A1  was  seen washing his face and hands  at  the thodu  near to the place of occurrence by PW 6 at about  the time  of occurrence and dress worn by him on that date  have been recovered and identified as MOs 12 and 13.

     (6)  First  accused was seen at about 3 p.m.   on  the date  of occurrence while he was going through Kappelappalli by persons like PW17.

     (7)  Recovery of MO1 as a result of information  given by  first  accused from the bushes where it was  hidden  and very near to the place of occurrence.

     (8)  Recovery of MO 25 footwears (Hawai Chappals) from the place of occurrence and identified as similar to the one purchased  by first accused from the shop of PW 14 few  days prior to the date of occurrence.

     (9)  Immediately  after the incident the accused  were absconding and arrest of first accused on 19.9.1991 by PW 22 from the place he was hiding."

     According to the prosecution the injuries found on the person  of  the deceased were caused by Accused  No.1,  Biju with  the  weapon  of  offence seized in  the  case  at  his instance  consequent  upon  his disclosure  statement.   His conviction  and  sentence  has already been upheld  by  this Court  while dismissing the SLP filed by him.  The appellant has  been  found  guilty  and convicted  of  offences  under

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Section  302  read with Section 120B and Section 119 of  the IPC.   It may be reiterated that there is no direct evidence either  regarding  abetment  or   the  criminal   conspiracy attributable  to the appellant.  Both the offences are  held to  be  proved on the basis of circumstantial evidence.   To prove  the charge of criminal conspiracy the prosecution  is required to establish that two or more persons had agreed to do  or caused to be done, an illegal act or an act which  is not illegal, by illegal means.  It is immaterial whether the illegal  act  is  the ultimate object of such  crime  or  is merely   incidental   to  that   object.   To  attract   the applicability  of Section 120B it has to be proved that  all the  accused had the intention and they had agreed to commit the  crime.  There is no doubt that conspiracy is hatched in private  and  in  secrety for which  direct  evidence  would rarely  be  available.  It is also not necessary  that  each member  to  a  conspiracy must know all the details  of  the conspiracy.   This  Court  in Yash Pal Mittal v.   State  of Punjab  [AIR  1977 SC 2433] held:  "The offence of  criminal conspiracy under S.120A is a distinct offence introduced for the  first time in 1913 in Chapt.V-A of the Penal Code.  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- conspirators 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 mis-fire  or over-shooting  by  some of the conspirators.  Even  if  some 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  S.120A  is brought out pilthily  by  this Court  in EG Barsay v.  The State of Bombay (1962) 2 SCR 195 at p.229 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 S.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 be liable".

     We   are  in  respectful   agreement  with  the  above

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observations   with  regard  to   the  offence  of  criminal conspiracy."

     In a criminal case the onus lies on the prosecution to prove  affirmatively  that  the  accused  was  directly  and personally connected with the acts or omissions attributable to  the  crime committed by him.  It is settled position  of law  that act or action of one of the accused cannot be used as  evidence against other.  However, an exception has  been carved  out under Section 10 of the Evidence Act in the case of  conspiracy.  To attract the applicability of Section  10 of  the Evidence Act, the Court must have reasonable  ground to  believe that two or more persons had conspired  together for  committing  an  offence.   It is  only  then  that  the evidence  of action or statement made by one of the  accused could  be used as evidence against the other.  This Court in Kehar Singh & Ors.  v.  The State (Delhi Admn.) [AIR 1988 SC 1883]  has held:  "Section 120A provides for the  definition of  criminal  conspiracy and it speaks of that when  two  or more persons agree to do or cause to be done an act which is an illegal act and S.120-B provides for the punishment for a criminal  conspiracy  and it is interesting to note that  in order  to prove a conspiracy it has always been felt that it was  not  easy  to  get direct evidence.   It  appears  that considering  this  experience about the proof of  conspiracy that  S.10 of the Indian Evidence Act was enacted.   Section 10 reads:

     "Things  said  or done by conspirator in reference  to common  design - when there is reasonable ground to  believe that  two or more persons have conspired together to  commit an  offence  or an actionable wrong, anything said, done  or written  by  any one of such persons in reference  to  their common  intention,  after the time when such  intention  was first  entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well  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."

     This  section  mainly could be divided into two:   the first  part  talks  of where there is reasonable  ground  to believe that two or more persons have conspired to commit an offence  or  an actionable wrong, and it is only  when  this condition precedent is satisfied that the subsequent part of the  section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to S.120-A where it is provided "When two or more persons agree to do, or cause to be done". This  further  has been safeguarded by providing  a  proviso that  no agreement except an agreement to commit an  offence shall  amount to criminal conspiracy.  It will be  therefore necessary  that  a prima facie case of conspiracy has to  be established  for  application of S.10.  The second  part  of Section  talks of anything said, done or written by any  one of  such persons in reference to the common intention  after the  time  when such intention was first entertained by  any one  of  them is relevant fact against each of  the  persons believed  to  be so conspiring as well for the  purpose  for proving  the existence of the conspiracy as for the  purpose of  showing  that any such person was a party to it.  It  is clear  that  this  second part permits the use  of  evidence which  otherwise  could  not  be used  against  the  accused

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person.  It is well settled that act or action of one of the accused  could  not be used as evidence against  the  other. But  an  exception has been carved out in S.10 in  cases  of conspiracy.   The  second part operates only when the  first part  of the section is clearly established i.e.  there must be  reasonable  ground to believe that two or  more  persons have  conspired  together  in the light of the  language  of S.120A.   It  is  only  then   the  evidence  of  action  or statements  made  by  one of the accused, could be  used  as evidence   against  the  other.   In  Sardar  Sardul   Singh Caveeshar  v.  State of Maharashtra (1964) 2 SCR 378,  Subba Rao, J.  (as he then was) analysed the provision of S.10 and made the following observations:

     "This section, as the opening words indicate will come into  play  when  the  court  is  satisfied  that  there  is reasonable  ground to believe that two or more persons  have conspired  together  to commit an offence or  an  actionable wrong,  that  is  to  say, there should  be  a  prima  facie evidence  that a person was a party to the conspiracy before his acts can be used against his co-conspirators.  Once such a  reasonable ground exists, anything said, done or  written by  one  of  the  conspirators in reference  to  the  common intention,  after  the  said intention was  entertained,  is relevant  against  the others, not only for the  purpose  of proving the existence of the conspiracy but also for proving that  the  other person was a party to it.  The  evidentiary value  of  the  said acts is limited by  two  circumstances, namely,  that the acts shall have reference to their  common intention  and  in respect of a period after such  intention was  entertained  by  any one of them.   The  expression  in reference  to  their common intention 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.   Another   important limitation  implicit  in  the language is indicated  by  the expressed scope of its relevancy.  Anything so said, done or written  is  a  relevant fact only ’as against each  of  the person  believed to be so conspiring as well 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’. It can be used only for the purpose of proving the existence of  the  conspiracy or that the other person was a party  to it.   It cannot be said in favour of the other party or  for the purpose of showing that such a person was not a party to the  conspiracy.   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;   (5) it can only be used against a co- conspirator  and not in his favour."

     It was further held:

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     "From an analysis of the section, it will be seen that Sec.10  will come into play only when the court is satisfied that  there is reasonable ground to believe that two or more persons have conspired together to commit an offence.  There should  be, in other words, a prima facie evidence that  the person  was a party to the conspiracy before his acts can be used  against  his  co-conspirator.  One  such  prima  facie evidence  exists,  anything said, done or written by one  of the conspirators in reference to the common intention, after the  said  intention  was  first  entertained,  is  relevant against the others.  It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that  the  other person was a party to it.  It is true  that the observations of Subba Rao, J.  in Sardul Singh Caveeshar v.   State of Maharashtra, (1964) 2 SCR 378 lend support  to the contention that the admissibility of evidence as between co-conspirators  would be liberal than in English Law.   The learned Judge said (at 390):

     "The  evidentiary value of the said acts is limited by two  circumstances,  namely,  that  the  acts  shall  be  in reference  to  their  common intention and in respect  of  a period  after  such intention was entertained by any one  of them.    The  expression  "in   reference  to  their  common intention" is very comprehensive and it appears to have been designedly  used to give it a wider scope than the words "in furtherance  of " in 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...."

     But,  with  respect, the above observations  that  the words  of  Sec.10 have been designedly used to give a  wider scope than the concept of conspiracy in English Law, may not be  accurate.   This particular aspect of the law  has  been considered  by  the  Privy Council in Mirza Akbar  v.   King Emperor,  AIR  1940 PC 176 at p.180, where Lord Wright  said that  there  is no difference in principle in India  Law  in view Sec.10 of the Evidence Act.

     The  decision  of the Privy Council in  Mirza  Akbar’s case  has  been  referred to with approval in  Sardul  Singh Caveeshar  v.  State of Bombay, 1958 SCR 161 at p.193:  (AIR 1957 SC 747 AT P.760) where Jagannadhadas, J., said:

     "The  limits  of  the  admissibility  of  evidence  in conspiracy  case  under S.10 of the Evidence Act  have  been authoritatively laid down by the Privy Council in Mirza King v.   King Emperor (supra).  In that case, their Lordships of the Privy Council held that S.10 of the Evidence Act must be construed  in  accordance with the principle that the  thing done,  written or spoken was something done in carrying  out the  conspiracy and was receivable as a step in the proof of the  conspiracy.  They notice that evidence receivable under S.10 of the Evidence Act of "anything said, done or written, by any one of such persons" (i.e.  conspirators) must be "in reference  to their common intention".  But their  Lordships held  that in the context (notwithstanding the amplitude  of the above phrase) the words therein are not capable of being widely  construed having regard to the well- known principle above enunciated."

     In  Suresh Chandra Bahri v.  State of Bihar [AIR  1994

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SC 2420] this Court reiterated that the essential ingredient of  criminal  conspiracy  is  the  agreement  to  commit  an offence.   After referring to the judgments in NMMY Momin v. State  of  Maharashtra  [AIR 1971 SC 885] and  State  (Delhi Admn)  v.   V.C.  Shukla [AIR 1980 SC 1382] it was  held  in S.C.  Bahri’s case (Supra) as under:  "A cursory look to the provisions  contained  in  S.120-A reveal  that  a  criminal conspiracy  envisages  an  agreement  between  two  or  more persons  to commit an illegal act or an act which by  itself may  not  be  illegal but the same is done  or  executed  by illegal means.  Thus 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 fact  situation criminal  conspiracy  is  established  by  proving  such  an agreement.   In other words, where the conspiracy alleged is with  regard to commission of a serious crime of the  nature as  contemplated  in  S.120-B  read  with  the  provisio  to sub-sec.(2)  of S.120-A of the IPC, 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  S.120-B 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  fulfilment   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 S.120-B  since  from  its very nature a conspiracy  must  be conceived and hatched in complete secrecy, because otherwise the  whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come  across  direct  evidence of a criminal  conspiracy  to commit  any  crime and in most of the cases it is  only  the circumstantial  evidence  which is available from  which  an inference  giving  rise  to the conclusion of  an  agreement between  two  or  more persons to commit an offence  may  be legitimately drawn."

     It has thus to be established that the accused charged with  criminal  conspiracy had agreed to pursue a course  of conduct  which he knew leading to the commission of a  crime by  one  or more persons to the agreement, of that  offence. Besides  the fact of agreement the necessary mens rea of the crime  is  also required to be established.  In the  instant case  the hatching of conspiracy between the accused persons has  been  sought  to be proved on the ground  that  as  the deceased  had  declined  to get the pregnancy  aborted,  the appellant wanted to get rid of her, suggesting the existence of circumstance of motive.  Another circumstance relied upon by  the  prosecution  is  that both the  accused  were  seen together  on  the date of murder near or about the place  of occurrence.   Some conversation is also stated to have taken place between the accused persons, the contents of which are neither  disclosed  nor suggested.  Accused No.1  alone  was found  to  have  boarded the bus in which the  deceased  was travelling  and alighted from it along with her.   Regarding the  circumstance  relating to the existence of motive,  PW9 who  is  the  sister  of the  Ms.Jameela  deposed  that  the deceased  had  told her that the pregnancy conceived by  her

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was  through the appellant.  According to her the  appellant admitted  the  paternity of conceived child in  the  initial stage  but denied the paternity attributed to him six months thereafter.   The  trial  court found that "in  the  answers elicited  in  the  further cross-examination also  it  would appear  that her version about the first source of knowledge about   the  pregnancy  of   Jameela  was  inconsistent  and unnatural".   Dealing  with her statement, the  trial  court observed that PW9 had no occasion to meet Jameela as she was not  visiting her mother’s house and also because the second accused  had consented for the marriage.  The only  evidence regarding the appellant being responsible for the conception of  the child is the testimony of Nabeesa (PW6), the  mother of the deceased.  She had stated that she came to know about the  pregnancy  of  Jameela only when she tried to  fix  her marriage  with some person and Jameela told her that she was in  love  with the appellant.  It is not discerned from  the testimony  of PW6 that Jameela had conceived the child  from the  appellant.   What  the  witness stated  was  only  that Jameela  and  the appellant were in love and they knew  each other for a period of two years before the death of Jameela. According  to her the marriage between the deceased and  the appellant  could  not  be  solemnised as  they  belonged  to different  religions.   She never saw the deceased  and  the appellant talking as according to her they used to talk only in her absence.  The appellant is stated to have visited the house  of  the aforesaid witness on 15.5.1991 and  assaulted the  deceased regarding which report Exhibit P-4 was lodged. According to her Jameela was killed while returning from the hospital  where she had gone for a check up.  Nowhere in her testimony Nabeesa (PW6) stated that the appellant wanted the child,  conceived  by Jameela, to be aborted.  There  is  no positive  evidence proving or suggesting that the  appellant was  responsible for the pregnancy of the deceased.  In  the absence  of evidence regarding the circumstance  attributing the  pregnancy  of  the deceased to the  appellant  and  his insistence   for  abortion  of   the  child,  the  important circumstance  of motive cannot be held to have been  proved. The  trial  court, therefore, rightly did not rely upon  the testimony  of PW9 Amina with respect to the existence of the said  circumstance.   The testimony of PW18 Meharban who  is the  sister-in-law  of  the deceased also does  not  inspire confidence  to link the appellant with the pregnancy of  the deceased.   PW2 who is the neighbour of the deceased  stated that she had known about the pregnancy from Jameela herself. According to her the appellant had quarreled with Jameela in connection  with  the  pregnancy.   Despite  denial  of  the appellant  Jameela was stated to have asserted that she  did not  have  sexual  intercourse with anyone  other  than  the appellant.   In  her cross-examination the witnesses  stated that  the appellant never threatened Jameela.  She  admitted that  the appellant had apparently told Jameela that he  was not  the  father  of  the child in her  womb.   The  witness conceded  that  she  had  no   direct  knowledge  about  the relationship of the deceased with the appellant.  PW3 who is a  neighbour  and husband of PW2 was declared hostile as  he did not support the case of the prosecution.  It was deposed by  him that he was not aware that Jameela had requested the appellant  to marry her.  PW2 stated that the appellant  had categorically  stated  that he was not responsible  for  the pregnancy  as  someone-else  was responsible  for  it.   The courts  below, therefore, were not justified in holding this circumstance proved for the existence of criminal conspiracy to  commit  the  crime of murder of the  deceased.   In  the absence  of  any  evidence  suggesting the  existence  of  a

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circumstance of insistence by the appellant for abortion, an important  link  in  the chain of  circumstances  attributed against  him  is missing.  Even otherwise motive  by  itself cannot  be a proof of conspiracy.  In Girja Shankar Misra v. State  of U.P.  [AIR 1993 SC 2618] though it was found  that there were serious misunderstanding between the deceased and the  appellant  because of the illicit relationship  between the  appellant  and the wife of the deceased, yet the  Court held  that despite the fact that the appellant had a motive, he  could not be held responsible for hatching a conspiracy. The  other important circumstance relied by the  prosecution and  believed  both by the trial and the High Court  is  the presence  of  the appellant in the company of  Accused  No.1 near  or  about  the  place of occurrence  on  the  date  of incident.   It  is  true  that a number  of  witnesses  have deposed  that they had seen both the accused together on the date  of occurrence but it is equally true that such meeting was  not unusual as admittedly they were working together in the  plantation.   Mere  meeting  would  by  itself  not  be sufficient  to infer the existence of a criminal conspiracy. There  is  no  suggestion, much less legal evidence  to  the effect  that  both the accused were so intimate which  would have compelled Accused No.1 to agree to be a conspirator for the  killing  of  the  deceased  at  the  instance  of   the appellant.   The  Accused  No.1 is also not stated to  be  a habitual  criminal.   There is no suggestion of the  accused No.1  being  hired for the purpose of killing the  deceased. Ramakrishnan  (PW3)  did  not  support   the  case  of   the prosecution  of  having  seen both the accused  sitting  and talking  to  each  other  near  the bushes  on  the  day  of occurrence.   To  a specific question as to whether  he  had seen  any  other person going through the road  towards  the side  where Accused No.1 had gone, the witness  emphatically replied  in  the negative.  Davis (PW5) stated that  on  the date  of  occurrence  he had seen Accused No.1 at  about  2o clock  in  the  afternoon.   In reply to a  question  as  to whether he had seen anyone-else going through the road while Accused No.2 was talking to PW4, the witness replied "I have not  noticed".   Nabeesa  (PW6)  who is the  mother  of  the deceased  has stated that on the date of occurrence both the accused  were sitting near her house on some timber logs  at about  2  p.m.  but at 2.45 p.m.  she saw only Accused  No.1 washing  his knife near the stream which is on the  southern side of her house.  What happened between 2.00 p.m.  to 2.45 p.m.  is not known to the witness.  Her deposition is mainly with  respect  to the relationship of the deceased with  the appellant.  Jose (PW7) stated in the trial court that on the date  of  occurrence at about 2.45 p.m., the  appellant  had called  him.  He told him to come after some time.  He  went there  and talked to the appellant, George (PW8) and Mohanan (PW10).   He saw Jameela, deceased getting down from the bus at  about 2.30 p.m.  She had gone to the house of her sister Amina (PW9).  He did not see Accused No.1 with Accused No.2. He  saw only the appellant, PW8, PW10 and some other people. George  PW8  stated  that he saw appellant on  the  date  of occurrence  at  about 2.30 p.m.  at the gate of  his  house. Both  the witness and the appellant had conversation on  the steps  of the house of the witness.  Appellant was there for about  half  an  hour.   This statement of  PW8  belies  the averments  of  other witnesses that the appellant  committed the crime in conspiracy with Accused No.1 at about 2.45 p.m. Amina (PW9), the sister of the deceeased stated that she had seen  both  the accused together sitting on the  timber  log near  the road.  She did not see appellant accompanying  the accused  No.1 thereafter.  Devasi (PW11) Stated that on  the

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day  of occurrence both the accused had come to his shop  at about  1  p.m.   and each had one plate  tapioca  and  meat. Meharban  (PW18) stated "I saw Accused No.2 at 2.30 p.m.  at the  timber  log.   I did not see accused No.1.  I  saw  A-2 calling  PW-7  Jose.   Then I saw he was talking  with  PW-8 George.   That  was about 2.45 in the afternoon.  I saw  A-1 following Jameela when she alighted the bus.  Then I saw A-1 swiftly  walking  from eastern side to western side".   This statement  of the prosecution witness does not suggest, even by  implication  that both the accused were together on  the day  of occurrence.  The statement of the witnesses  noticed hereinabove may probabilise the presence of both the accused together  but  does  not prove beyond doubt that  they  were together  near  the road at the place of occurrence  on  the fateful  day.   Assuming  they   were  together,  would  not necessarily  lead  to  the conclusion that they had  met  in furtherance  of  the conspiracy to murder the deceased.   We are  of the opinion that the prosecution did not succeed  in proving   this   circumstance   beyond   reasonable   doubt. Conviction of the appellant on the basis of the existence of the alleged circumstance cannot be justified.  The appellant is  entitled  to the benefit of the reasonable  doubt.   The High  Court  was, therefore, not justified to hold that  the accused  persons had been seen together before and after the incident  when Jameela boarded the bus for the Hospital  and alighted  at  the bus stop around 2.30 p.m.  The High  Court was  also not justified to hold that there was no particular reason  for  them  to be together except as  stated  by  the prosecution.   It has come in the prosecution evidence  that the  witnesses  and the accused were plantation workers  and would  usually  meet  each  other.  In the  absence  of  the existence  of  circumstances  suggesting   the  hatching  of criminal  conspiracy,  we  are  of   the  opinion  that  the appellant  could not have been convicted and sentenced  with the  aid  of  Section 120B or Section 109 IPC.  No  fact  or circumstance  with  respect to the abetment  attracting  the applicability  of  Section 109 IPF has been brought  to  our notice.  To prove the charge of abetment, the prosecution is required  to  prove that the abettor had instigated for  the doing  of  a  particular thing or engaged with one  or  more other  person or persons in any conspiracy for the doing  of that  thing  or  intentionally aided by an  act  of  illegal omission,  doing  of that thing.  The prosecution  miserably failed  to prove the existence of any of the ingredients  of Section   107  IPC.   Learned   counsel  appearing  for  the respondent-State  submitted that after the dismissal of  the appeal of Accused No.1, the charge of conspiracy against the appellant  should  be deemed proved.  We are  not  impressed with such a submission particularly when the prosecution had alleged  that  the said accused had committed the  crime  of murder  by  stabbing  the deceased with his  knife.   Merely because   the  charge  of   conspiracy  fails  against   the appellant,  it  cannot  be  said  that  the  conviction  and sentence  awarded  to  the Accused No.1 was  illegal.   This Court in Babu Singh v.  State of Punjab [JT 1996 (9) SC 753] held  that in a case where two accused were alleged to  have conspired and killed their younger brother, the acquittal of one  would  not entitle the other accused to  be  acquitted. The  Court  observed:  "Consequently, it was held  that  the prosecution  failed  to establish the charge of  conspiracy. But  merely  because  the charge of conspiracy  failed,  the prosecution case so far as the actual assault being given by appellant Babu Singh cannot be ipso facto thrown away."

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     In  view  of  what has been held hereinabove,  we  are inclined  to  hold  that the prosecution did not  prove  the charge  of  conspiracy  against  the  appellant  beyond  all reasonable  doubt.  We are of the opinion that the appellant is  entitled to the benefit of reasonable doubt existing  in the  case.   The  appeal  is  accordingly  allowed  and  the impugned judgment of the trial as well as of the High Court, in  so far as it relates to the appellant, is set aside  and the  appellant is acquitted of the charges for which he  was convicted  and  sentenced.   The appellant shall be  set  at liberty forthwith unless required in some other case.