REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 26 OF 2007

Abuthagir and Ors. ...Appellants  

Versus

State Rep. by Inspector of Police, Madurai ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the  

Madras High Court upholding the conviction of the appellants for offence  

punishable  under  Section  302  read  with  Section  34,  Section  120B  and  

Section 148 of the Indian Penal Code, 1860 (in short the ‘IPC’). However,  

the conviction and consequential sentences imposed for offence punishable  

under Section 341 IPC was set aside.  

2. Background facts in  a nutshell are as follows:

Balan Alagiri  (PW-5) was working as a Superintendent  of  Madurai  

Central  Prison during the period May 1996 to October 1998. During that  

period  Krishnan  (PW7),  Chokkalingam  (PW20)  were  also  working  on  

30/05/1997. One accused detained under TADA was brought from Chennai  

Central prison and produced before Coimbatore Court and returned back to  

Madurai  Central  Prison.  When the Assistant  Jailor  Jayaprakash  intend to  

have body search and examination of identification marks the accused Sahul  

Hameed refused  to  allow him to  have body search  and refused to  show  

identification marks. The intimation was given to PW 20. The accused was  

taken to his office and was instructed to concede for body search. But he  

declined to do so. The said Jayaprakash tried to remove the shirts. At the  

time  the  Sahul  Hameed  has  proclaimed  that  "Insha  Allah!  you  have  to  

answer  for  this"  after  that  he  was  examined  and  sent  to  6th  block  and  

detained in a separate cell. Whenever the relatives visit the jail, the Assistant  

Jailor  Jayaprakash used to  verify  the  things as  per  rules  and regulations.  

Enraged by this, the said  Sahul Hameed had complained to PW-5 that the  

Assistant Jailor has assaulted and insulted his religion.  

Some members of  an association also made an agitation before the  

District Collector, and affixed wall-posters. Sahul Hameed also reported the  

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matter against the Jayaprakash to his superior officers and gave a statement  

also.  The  association  members  of  Sahul  Hameed  also  wrote  a  letter  

informing to identify the person who has caused annoyance to him and we  

will teach him a lesson. The said letter was received by PW5 and handed  

over to Superior  Officer  for further  proceedings.  The letter  sent to Sahul  

Hameed is Ex.P2 series. Letter containing some religious verses is EX-P-3  

and the cover is EX-P.4, printed format sent to a High Court Judge of the  

Madras High Court.

This case relates to an incident on 29.8.1997 around 3 p.m. near the  

central jail.

According  to  the  first  report  and  the  preliminary  investigation  of  

police, three or four unidentified persons came on motor cycles and attacked  

the deceased with sickles and knives and having killed him fled away. The  

usual  investigation  proceeded  without  much  progress  on  the  identity  of  

culprits.  The C.B.C.I.D. Police of the State took up further investigation.  

Even they could not get any clue immediately.   

While the big break through of the case is the Crime No.741/1998 of  

Kodambakkam Police Station; The first appellant was arrested in that crime  

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registered under Sections 120(b), 307 IPC.  His interrogation disclosed the  

involvement of all the appellants and the other absconding accused in this  

case.  Resulting  orders  of  police  custody  of  the  appellants,  and  their  

interrogation leading to discovery of incriminating facts under Section 27 of  

Indian Evidence Act, 1872 (in short the ‘Act’) connecting the accused with  

crime; the fact of arrest of appellants are published in the media with their  

photographs.  On seeing their photographs the two witnesses i.e. PW3 and  

PW4  gave  statements  to  police  that  they  witnessed  the  murder  and  

appellants are the assailants.  Later the charge sheet was laid. As accused  

persons pleaded innocence, trial was held.

Saroja  (PW-2)  is  a  Sugarcane  vendor  in  front  of  Madurai  Prison.  

Shannlugam (PW-3) is a mason,  Lakshmi (PW-4) is doing Textile business.  

PW3 has stated that 4 years before at about 3 P.M., when he was proceeding  

on the west to east by his bicycle to Arsaradi in front of the Jail main gate,  

he found a sugar cane juice vehicle and he was taking a sugar cane juice. At  

that time a person wearing jail Sub-Inspector Uniform, was riding a bicycle  

near  to  Sugarcane  vehicle  two Yamaha vehicles  were  parked.  While  the  

Sub-Inspector has crossed the sugar cane vehicle the person has taken the  

Aruval from his blue colour jeans bag and assaulted him on his neck and he  

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has resisted by his left arm and also a cut injury and he has fallen down.  

Along with a person who has assaulted, yet another 4 persons have inflicted  

injury by knife and Aruval. After that three persons on one bike and two  

persons on another bike has started proceeding towards east. The occurrence  

was seen by Saroja (PW2),  Shanmugam (PW-3) and  PW4 Lakshmi.

On 29-8-1997 around 3 p.m. Mohammed Sulaiman (PW-1) when he  

was in the guard duty a person parked his scooter and informed him that  

near to the prison main gate a Sub-Inspector who was riding bicycle with  

uniform  was  assaulted  by  four  persons  and  ran  away  towards  east.  

Immediately  he  rushed  to  the  spot  and  found  that  the  Assistant  Jailor  

Jayaprakash was found dead and he has given intimation to his officers. On  

their instructions  PW 1 has preferred a complaint to the Karimedu P.S. The  

Inspector  of  Karimadu  P.S,    Mary  George  (PW-21)  has  received  the  

complaint EXP1 and preferred an F.I.R. EXP 27 and sent to Magistrate and  

other  officers.  Subsequently  she  has  visited  the  place  of  occurrence  and  

preferred observation mahazar in the presence of Alamarathan (PW-6) and  

Pandi  EXP 29 is  a  observation mahazar  and ExP28 a  rough sketch  was  

prepared. The police Photographer Shanmugasundaram (PW-18) has taken  

the  photographs of  the  place of  occurrence  and a  dead body in different  

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angles. MO 6 is a negative and MO 17 are Photographs. An inquest was  

conducted in the presence of Panchayathar and inquest report was prepared  

and dead body was sent through David Shamuvel (PW 19) for Post mortem.  

MOs 19  to 24 were recovered in the presence of PW-20 and witnesses were  

examined  and  evidences  were  recorded.    Dr.  Maiyazagan  (PW-12)  has  

started post mortem on 30-8-1997 at 10.10 a.m. On receipt of  the requisition  

which is ExP 15 from the Inspector (PW-21), he found 21 injuries and the  

first injury would be the cause of death. And injuries 2, 3 and 6 can cause  

death in natural course.  Dr. Maiyazagan has suggested that all the injuries  

together would cause death and the rest of injuries, though it is simple would  

cause death in future.  The injuries were inflicted by a sharp edged weapon  

like Aruval and deep injury would cause by one side sharped weapon and  

issued a post mortem certificate EX.P. 16.

After  post  mortem the  MOs 8 to  12 were  seized and dead body  

handed over to his relatives and the recovered  material objects handed over  

to PW21. During the examination of PW21, during the pendency of this  

case as per the order of government, the case was handed over to CBCID,  

Madurai on 21-09-1997.

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During   the  course  of  investigation  by  the  Inspector  of  CBCID,  

Sundaram  (PW-22)   on  the  basis  of  statement  given  by  Ist  accused  

Abuthahir in connection with Kodambakkam Cr.No.741/98, U/Ss. 307, 305  

and 120(b) I.P.C, he came to know that all the accused and the absconding  

accused  Raja  @  Tailor  Raja  have  murdered  Jayaprakash.  On  4-5-1998  

accused Abuthakir was produced under PT warrant and brought to Madurai  

and Police Custody was taken from 26-5-1998 to 30-5-1998 for four days  

and he has given a confession before the Village Administrative Officer,  

Sethu  Ramasamy  (PW9)   and  Thalaiyari  Gancsh.  On  the  basis  of  an  

admitted portion of Ex.P.7 the Hotel Service occupance Register from 17-9-

1997 to 27-9-1997 MOI. Bill No.2501 dated 8-8-1997 to Bill No.2600 dated  

2-9-1997 Cash Bill Book M02, and lodge maintenance register for Room  

No.107 from 25-8-1997 to 16-5-1998 anti Room No. 111 from 2 1-8-1997 to  

24-5-1998 maintenance register M04 were  recovered under EX.P-8.

Further the Model signature denoted as R. Kumar was obtained in the  

presence of witnesses. MOs I to 4 were recovered from PW 10 Mayavan,  

who is a lodge clerk and cashier. Further an affixation for PT Warrant has  

been given to Accused Aasik and he was remanded on 23-6-98 subsequently  

he was taken to police custody from 23.6.98 to 25.6.98 and he was examined  

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in  presence  of  Village  Administrative  Officer  (PW-14)  Velusamy  and  

Thalaiyari Shanmugavel and confession was recorded.

On the basis  of  an admitted portion of  Ex.P.33 in the presence  of  

witnesses the accused was taken to Trichy bus stand and was identified by  

the  accused.   Yamaha  Motor  Cycle  (MO5)  was  recovered  from the  two  

wheeler stand under ExP34. On 24.6.1998 he was sent to Judicial Custody.  

Further on 24-6-1998 an application was given for PT warrant for accused  

Aslam and Jafru, and they were remanded on 2-7-1998. From 2-7-1998 to 3-

7-1998  accused  were  taken  under  police  custody  and  examined  in  the  

presence  of  the  witnesses  and  confession  was  recorded.  As  specimen  

signature name as David in Tamil as well as English was obtained and the  

same  was  sent  alongwith  the  accused  for  judicial  custody  on  3.7.1998.  

Accused  Jafru  was  produced  under  PT warrant  on  16.7.1998  and  police  

custody was ordered from 16.7.1998 to 18-7-1998 on an application.  He  

was  examined  and  confession  was  recorded  in  the  presence  of  Village  

Administrative Officer Kamaraj (PW5) and Thalaiyari Mohan. On the basis  

of an admitted portion of EX-P.35 he has taken witnesses and the Inspector  

and identified the STD Booth, run by Ponnazlagu, Tel.No.705564 situated  

on the Ist   floor of Door No.66A, and he has confessed that he has made a  

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call to Chennai and in between the periods 27-7-1997 to 12-10-1997 the note  

book maintained in the office for day time, and charges for Telephone calls  

were recovered under EX-P.26. The requisition was given to the Manager,  

Tele  Communication,  Trichy  for  seeking  the  Computer  printout  for  the  

periods 18-8-1997 to 15-10-1997 regarding the communication to telephone  

No.705564 and on 17-7-1998 the accused Jafru was remanded to Judicial  

Custody.

The  requisition  given  under  EX-14  to  Judicial  Magistrate  No.VI,  

Madurai for comparison of the signature of the A 1 & A2 to hand writing  

Expert Murali (PW-11), Bakhyam Hotel Cash receipt No.2590 dated 29-8-

1997 and the English Signature of David was marked as Ql. Hotel receipt  

No.2589 dated 29-8-1997 the Carban Signature of K. Kumar is "Q2" and  

Carbon signature of David in the lodge attendance register  dated 27-8-1997  

at Page 564 is "Q3". Carbon  signature of K. Kumar in the lodge attendance  

register dated 27-8-1997 at Page 564 is "Q4". Specimen name of Aslam sent  

for report containing 10 papers Ex.P.11 letters marked as S1 to S60 as such  

specimen signature of Abuthakir containing 6 papers which is EX.P 2 the  

letters were marked as S61 to 144 and after research PW 13 has given an  

opinion that the letters marked as S1 to S24 were written by a person who  

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has signed Q3, S61 to S 144 letters were written by a person who has signed  

Q2 and Q4.   

Since accused Raja was absconded the case was split up against him  

before  the  lower  Court.  Twenty  two  witnesses  were  examined,  39  

documents were exhibited and 25 material objects were marked. The trial  

Court  held  that  the  prosecution  had  established  the  accusations  and  

accordingly convicted and sentenced them.   Four of the accused persons  

filed appeal before the High Court.  Before the High Court the primary stand  

was that PWs 3 and 4 stated to be the two eye witnesses. Identification of the  

accused  by  PWs  3  and  4  was  not  established.  The  so  called  

discovery/recovery at the instance of the accused persons is not believable.  

No motive was established and no conspiracy was proved.  The High Court  

held that the appeal was sans merit. It did not find any substance in the plea  

of  the appellants that there was an inordinate delay in examination of PWs 3  

and 4. So far as the identification is concerned the High Court found that the  

stand of the appellants that the identification was not truthful is not correct.  

So far as the discovery of the various photos, the High court noted that the  

circumstances of the recovery on its own may not be sufficient to connect  

the accused, but the cumulative effect of several factors  coupled with the  

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evidence of PWs 3 and 4 strengthened the case of the prosecution.  It also  

held that the motive was clearly established and so was the conspiracy.  

Apart from re-iterating the stand taken before the High Court learned  

counsel  for  the  appellants  submitted  that  on  the  purported  basis  of  

confession of A-3 that he has informed through STD booth Trichi informing  

to Batcha Bai on a particular telephone that he finished the matter, there was  

no corroboration.  

3. Learned  counsel  for  the  appellants  submitted  that  incrimination  

materials were not put to the accused in the examination under Section 313  

of  the  Code of  Criminal  Procedure,  1973 (in  short  the  ‘Code’).  Original  

prosecution case was that four accused persons attacked the victim and there  

were  no  motor  cyclists.  The  first  investigation  suspected  four  different  

accused.  The  second  investigation  came  up  with  five  different  accused  

persons  without  any  evidence  against  them  excepting  their  so  called  

admission before the eye witnesses.

4. Learned counsel for the respondent on the other hand supported the  

judgment of the  trial Court as affirmed by the High Court.

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5. In Devender Pal Singh v. State of N.C.T. of Delhi and Anr. (AIR  

2002 SC 1661), it was observed as follows:

“Menace of terrorism is not restricted to one country, and it has  become  a  matter  of  international  concern….Whether  the  criminal act was committed with an intention to strike terror in  the people or section of people would depend upon the facts of  each case".

6. In Hithendra Vishnu Thakur v. State of Maharashtra (AIR 1994 SC  

2623), it is held as follows:  

"It  is  a  common  feature  that  hardened  criminals  today  take  advantage of situation and by wearing the cloak of terrorism,  aim to achieve acceptability and respectability in the society;  because in different parts of the country affected by militancy, a  terrorist is projected as a hero by a  group and often even by  many misguided youth".. "Cynics have often commented that  one State’s “terrorist” is another State’s “freedom fighter.”

7. In Mohd. Khalid v. State of West Bengal (2002 (7) SCC 334) at para  

46 it is observed as follows:  

“46. Terrorism  is  one  of  the  manifestations  of  increased  lawlessness and cult of violence. Violence and crime constitute  a  threat  to  an  established  order  and  are  a  revolt  against  a  civilised  society.  “Terrorism”  has  not  been  defined  under  TADA  nor  is  it  possible  to  give  a  precise  definition  of  “terrorism” or lay down what constitutes “terrorism”. It may be  

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possible  to  describe  it  as  use  of  violence  when  its  most  important result is not merely the physical and mental damage  of the victim but the prolonged psychological effect it produces  or  has  the potential  of  producing on the  society as  a  whole.  There may be death, injury, or destruction of property or even  deprivation of individual liberty in the process but the extent  and reach of the intended terrorist activity travels beyond the  effect of an ordinary crime capable of being punished under the  ordinary  penal  law  of  the  land  and  its  main  objective  is  to  overawe the Government or disturb the harmony of the society  or “terrorise” people and the society and not only those directly  assaulted,  with  a  view to  disturb the  even tempo, peace  and  tranquility  of  the  society  and  create  a  sense  of  fear  and  insecurity.

8. In  Harijana Thirupala and Ors. v.  Public Prosecutor Andhra Pradesh  

(2002 (6) SCC 470), it was held as follows:

“11. In  our  administration  of  criminal  justice  an  accused  is  presumed to be innocent unless such a presumption is rebutted  by the prosecution by producing the evidence to show him to be  guilty of the offence with which he is charged. Further if two  views are possible on the evidence produced in the case, one  indicating  to  the  guilt  of  the  accused  and  the  other  to  his  innocence, the view favourable to the accused is to be accepted.  In cases where the court entertains reasonable doubt regarding  the guilt of the accused the benefit of such doubt should go in  favour of  the accused.  At the same time,  the court  must  not  reject  the  evidence  of  the  prosecution  taking  it  as  false,  untrustworthy or unreliable on fanciful grounds or on the basis  of conjectures and surmises. The case of the prosecution must  be  judged  as  a  whole  having  regard  to  the  totality  of  the  evidence. In appreciating the evidence the approach of the court  must be integrated not truncated or isolated. In other words, the  impact of the evidence in totality on the prosecution case or  innocence of the accused has to be kept in mind in coming to  the conclusion as to the guilt or otherwise of the accused. In  

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reaching a conclusion about the guilt of the accused, the court  has to appreciate, analyse and assess the evidence placed before  it  by the yardstick of probabilities,  its intrinsic value and the  animus  of  witnesses.  It  must  be  added  that  ultimately  and  finally the decision in every case depends upon the facts of each  case.”

9. The prosecution version has to be judged as a whole having regard to  

the totality of the evidence. In appreciating the evidence the approach of the  

Court must be  integrated and not truncated or isolated.  The Court has to  

appreciate in reaching the conclusion about the  guilt of the accused, analyse  

and assess the evidence placed before it by the yardstick of probabilities, its  

intrinsic value and the animus of the witnesses. Much emphasis has been led  

by learned counsel for the appellants on the alleged delayed examination of  

the witnesses.  It is well settled that delay in examination of the prosecution  

witnesses by the police during the course of investigation ipso facto may not  

be a ground to create a doubt regarding the veracity of the prosecution’s  

case.   So  far  as  the  delay  in  recording  a  statement  of  the  witnesses  is  

concerned no question was put to the investigating officer specifically as to  

why there was delay in recording the statement.  Unless the investigating  

officer is categorically asked as to why there was delay in examination of the  

witnesses the defence cannot gain any advantage therefrom. It cannot be laid  

down  as  a  rule  of  universal  application  that  if  there  is  any  delay  in  

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examination of a particular witness the prosecution version becomes suspect.  

It would depend upon several factors.  If the explanation offered for delayed  

examination is plausible  and possible and the Court accepts the same as  

plausible there is no reason to interfere with the conclusion. (See Ranbir and  

Ors. v. State of Punjab (AIR 1973 SC 1409), Bodhraj @ Bodha and ors. v.  

State of Jammu and Kashmir (2002 (8) SCC 45), Banti @ Guddu v. State of  

M.P. (2004 (1) SCC 414) and State of U.P. v. Satish (AIR 1004 SC 261).  It  

is seen that the PWs 3 and 4 disclosed that they had witnessed the incident.  

Before  PW-22  their  evidence  was  recorded.  The  incident  took  place  on  

29.8.1997 and the accused persons were arrested after about 8 months. Till  

the arrest of the accused the statements of PWs 3 and 4 were not recorded  

under Section 161 of Code.  After arrest because their photos were published  

in the newspapers, that is how PWs 3 and 4 came to the police station on  

their own accord on two different occasions and gave statements. It has been  

submitted by learned counsel for the appellants that PWs  3 and 4 did not  

disclose the incident to any one. They have no interest either for prosecuting  

the accused or  making a statement  in the defence.  They are independent  

witnesses.  In such a case it is absurd to hold that investigating officer had  

erred in recording the statement of PWs 3 and 4.  The investigating agency  

was making all possible efforts to know the names of the witnesses. This  

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factor cannot be doubted. If really as contended by learned counsel for the  

appellants the prosecution wanted to tamper some witnesses they could have  

immediately done so after the incident.  

10. In  Bachittar Singh and Anr. v.  State of Punjab (2002 (8)  SCC 125),  

it was observed by this Court as follows:

“Man  proposes,  God  Disposes”  is  exactly  what  has  happened here. What the accused thought was that they were  committing a hidden crime without realizing  that they had left  behind clinching evidence against themselves.”      

11. It was noted by this Court in Vemireddy Satyanarayan Reddy and Ors.  

v. State of Hyderabad (AIR 1956 SC 379) that it requires a courage in case  

of  atrocity  for  a  simple  man  to  come  forward  and  proclaim  the  truth  

unmindful of the consequences to himself.  A witness is normally considered  

to be an independent witness unless he springs from the sources  which are  

likely to be tainted such as enmity. Here again it would depend upon the  

facts of each case. In the instant case, as PWs 3 and 4 have no enmity with  

the accused they are independent and natural witnesses. They are not under  

the control of the police and do not have in any sense  any obligation to the  

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police. Since they have  revealed the truth after long time after seeing the  

photos  of  the  accused  persons,  that  cannot  be  a  factor  to  discard  their  

evidence. In  Sardul Singh v.  State of Haryana (AIR 2002 SC 3462) it was  

held as follows:

"There cannot be a prosecution case with a cast  iron perfection in all respects and it is obligatory for the  courts to analyser sift and assess the evidence of record,  with  particular  reference  to  its  trustworthiness  and  truthfulness,  by  a  process  of  dispassionate  judicial  scrutiny  adopting  apt  objective  and  reasonable  appreciation of the same, without being obsessed by an  air  of  total  suspicion  of  the  case  of  the  prosecution.  What is to be insisted upon is not implicit proof. It has  been  often  been  said  that  evidence  of  interested  witnesses should be scrutinized more carefully to find  out whether it has a ring of truth... Courts have a duty to  undertake a complete and  comprehensive appreciation  of all vital features of the case and the  entire  evidence  with  reference  to  the   broad  and   reasonable  probabilities of the case also in their  attempt   to find  out. proof beyond reasonable doubt”.

12. PW-3 was a  mason by profession  and PW-4 was a  petty  seller  of  

sarees.  Their  courage  in  coming  forward  to  depose  against  the  accused  

persons needs to be appreciated. Here are two persons from the lowest status  

of the society who had taken courage to stand up, picked and identified the  

accused persons.  PWs 2 and 3 have stated that they witnessed the incident  

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from a place which is just near the Central Jail.  In a bright day light the  

murder took place. Therefore, there is no infirmity in the identification.  

13. Section 27 of the Indian Evidence Act, 1872 (in short the ‘Evidence  

Act’) deals with discovery. The same reads as follows:

“How much of information received from accused may be  proved-  Provided  that  when  any  fact  is  deposed  to  as  discovered  in  consequence  of  information  received  from  a  person  accused  of  any  offence,  in  the  custody  of  a  police  officer, so much of such information, whether it amounts to a  confession  or  not,  as  relates  distinctly  to  the  fact  thereby  discovered, may be proved.”

In the instant case the following documents were relied upon:

1. Bakkim Lodge record.

2. Handwritings of first and third appellants in the registers.

3. Impersonation as Kumer and David.

14. The  evidence  of  PWs  10,  19  and  22  clearly  proved  the  aforesaid  

recoveries and discoveries.  Apart from that there has been recovery of the  

material objects.  The investigator was able to locate the STD booth from  

where the accused talked with others. This also is an important factor which  

was discovered at the instance of known accused persons. The concept of  

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conspiracy has been dealt with by this Court in several cases.  In Mohd.  

Khalid’s case (supra),  it was held as follows:

“17. It  would  be  appropriate  to  deal  with  the  question  of  conspiracy. Section 120-B IPC is the provision which provides  for punishment for criminal conspiracy. Definition of “criminal  conspiracy” given in Section 120-A reads as follows:

“120-A. When two or more persons agree to do, or  cause to be done,— (1) an illegal act, or (2)  an act  which  is  not  illegal  by  illegal  means,  such  an  agreement  is  designated  a  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 cooperate for the  accomplishment  of  the object  by the means  embodied in the  agreement, or by any effectual means, and (d) in the jurisdiction  where  the  statute  required  an  overt  act.  The  essence  of  a  criminal conspiracy is the unlawful combination and ordinarily  the offence is complete when the combination is framed. From  this, it necessarily follows that unless the statute so requires, no  overt act need be done in furtherance of the conspiracy, and that  the  object  of  the  combination  need  not  be  accomplished,  in  

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order  to  constitute  an  indictable  offence.  Law  making  conspiracy a crime, is designed to curb immoderate power to do  mischief which is gained by a combination of the means. The  encouragement and support which co-conspirators give to one  another  rendering  enterprises  possible  which,  if  left  to  individual  effort,  would  have  been  impossible,  furnish  the  ground  for  visiting  conspirators  and  abettors  with  condign  punishment.  The  conspiracy  is  held  to  be  continued  and  renewed  as  to  all  its  members  wherever  and  whenever  any  member of the conspiracy acts in furtherance of the common  design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.)  For an offence punishable under Section 120-B, the prosecution  need  not  necessarily  prove  that  the  perpetrators  expressly  agreed to do or caused to be done an illegal act; the agreement  may  be  proved  by  necessary  implication.  The  offence  of  criminal  conspiracy  has  its  foundation  in  an  agreement  to  commit  an  offence.  A conspiracy  consists  not  merely  in  the  intention of two or more, but in the agreement of two or more  to do an unlawful act by unlawful means.  So long as such a  design rests  in intention only,  it  is  not indictable.  When two  agree to carry it into effect, the very plot is an act in itself, and  an act  of each of the parties,  promise against  promise,  actus  contra actum, capable of being enforced, if lawful, punishable if  for a criminal object or for use of criminal means.

18. No doubt  in  the  case  of  conspiracy  there  cannot  be  any  direct  evidence.  The ingredients  of  the offence are that there  should be an agreement  between persons  who are  alleged to  conspire and the said agreement should be for doing an illegal  act or for doing by illegal means an act which itself may not be  illegal.  Therefore,  the  essence  of  criminal  conspiracy  is  an  agreement to do an illegal act and such an agreement can be  proved either by direct evidence or by circumstantial evidence  or by both, and it is a matter of common experience that direct  evidence to prove conspiracy is rarely available. Therefore, the  circumstances proved before,  during and after the occurrence  have  to  be considered  to  decide  about  the  complicity  of  the  accused.

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xx xx xx

21. Privacy  and  secrecy  are  more  characteristics  of  a  conspiracy, than of a loud discussion in an elevated place open  to  public  view.  Direct  evidence  in  proof  of  a  conspiracy  is  seldom available, offence of conspiracy can be proved by either  direct  or circumstantial evidence. It  is not always possible to  give affirmative evidence about the date of the formation of the  criminal  conspiracy,  about  the  persons  who  took  part  in  the  formation  of  the  conspiracy,  about  the  object,  which  the  objectors set before themselves as the object of conspiracy, and  about the manner  in which the object  of  conspiracy is  to be  carried out, all this is necessarily a matter of inference.”

15. In Devender Pal Singh’s case (supra) it was held in paras 50 and 51 as  

follows:  

“50. In  Kehar  Singh v.  State  (Delhi  Admn.) (AIR 1988 SC  1883 at p. 1954) this  Court  observed: (SCC pp.732-33 para  275)

“275.  Generally,  a  conspiracy  is  hatched  in  secrecy and it may be difficult to adduce direct  evidence of the same. The prosecution will often  rely on evidence of acts of various parties to infer  that they were done in reference to their common  intention.  The prosecution will  also more often  rely  upon  circumstantial  evidence.  The  conspiracy can be undoubtedly  proved by such  evidence direct  or  circumstantial.  But  the court  must  enquire  whether  the  two  persons  are  independently  pursuing  the  same  end  or  they  have come together to the pursuit of the unlawful  object.  The  former  does  not  render  them  conspirators,  but the latter does. It  is,  however,  

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essential that the offence of conspiracy required  some  kind  of  physical  manifestation  of  agreement.  The  express  agreement,  however,  need not be proved. Nor actual meeting of two  persons is necessary. Nor is it necessary to prove  the  actual  words  of  communication.  The  evidence as to transmission of thoughts sharing  the unlawful design may be sufficient.”

Conspiracy can be proved by circumstances and other materials.  (See State of Bihar     v. Paramhans Yadav (1986 Pat LJR 688)   

“To establish a charge of conspiracy knowledge about  indulgence in either  an illegal  act  or  a legal  act  by  illegal  means  is  necessary.  In  some cases,  intent of  unlawful use being made of the goods or services in  question may be inferred from the knowledge itself.  This apart, the prosecution has not to establish that a  particular unlawful use was intended, so long as the  goods or services in question could not be put to any  lawful use. Finally, when the ultimate offence consists  of a chain of actions, it would not be necessary for the  prosecution to establish, to bring home the charge of  conspiracy,  that  each  of  the  conspirators  had  the  knowledge  of  what  the  collaborators  would  do,  so  long as it is known that the collaborator would put the  goods or services to an unlawful use.” (See:  State of  Maharashtra v. Som Nath Thapa (1996 (4) SCC 659)   

51. Where  trustworthy  evidence  establishing  all  links  of  circumstantial  evidence  is  available,  the  confession  of  a  co- accused as to conspiracy even without corroborative evidence  can be taken into consideration. (See  Baburao Bajirao Patil v.  State of Maharashtra (1971 (3) SCC 432). It can in some cases  be  inferred  from  the  acts  and  conduct  of  the  parties.  (See  Shivnarayan Laxminarayan Joshi v. State of Maharashtra (1980  (2) SCC 465).”

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16. There is a minor discrepancy pointed out as to what PWs 3 and 4 have  

spoken about the manner of arrival of the motor riders. PW-3 stated that they  

came when the deceased was crossing the road while PW-4 stated that they  

were already there. This is too a trivial matter to corrode the credibility of  

the  witnesses  who  were  being  examined  after  a  length  of  time.  The  

impugned  judgment  does  not  suffer  from  any  infirmity  to  warrant  

interference.  

17. The appeal is dismissed.   

………………………….J. (Dr. ARIJIT PASAYAT)

…………………………J. (P. SATHASIVAM)

New Delhi, May 08, 2009

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