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CASE NO.: Appeal (crl.)  1363 of 2003

PETITIONER: Esher Singh  

RESPONDENT: State of Andhra Pradesh  

DATE OF JUDGMENT: 15/03/2004

BENCH: DORAISWAMY RAJU &  ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

WITH

CRIMINAL APPEAL NOS.1523 and 1524/2003

ARIJIT PASAYAT,J

       The matrix of these three appeals is a judgment  rendered by the III Additional Metropolitan Session Judge,  Hyderabad acting as the Designated court under the Terrorist  and Disruptive Activities (Prevention) Act, 1987 (in short  the ’TADA’).

       Nine persons were alleged to be responsible for  homicidal death of one Joga Singh (hereinafter referred to  as the ’deceased’). Five of them faced trial and one of them  Nishan Singh (A-3) died during the trial and therefore the  case abated so far he is concerned. The accused persons who  faced trial were Esher Singh (A-1), Nanak Singh Nishter (A- 2), Nishan Singh (A-3), Dilbagh Singh (A-4) and Rajender  Singh Dhingra (A-6).  Ram Singh (A-9) absconded. Charge  sheet was filed against A-1 to A-9 for offences punishable  under Sections 120B and 302 read with Section 120B of the  Indian Penal Code, 1860 (in short the ’IPC’), Section 3(3)  of TADA and Section 27 of the Indian Arms Act, 1959 (in  short the ’Arms Act’), read with Sections 5 and 6 of TADA.  

       The trial Court found that accused Esher Singh,  (appellant in Crl.A. No. 1363/2003) was guilty of offence  punishable under Section 4 of TADA and while further holding  that the other allegations were not established so far as  appellant Esher Singh and other co-accused are concerned.  Esher Singh was convicted as afore-noted and sentenced to  suffer rigorous imprisonment for five years and to pay a  fine of Rs.1,000/- with default stipulation. While Esher  Singh questions legality of the conviction and sentence  imposed, the State of Andhra Pradesh has questioned  acquittal of the accused persons who faced trial, and their  non-conviction for the charged offences.   

       The State’s appeal is numbered as Criminal Appeal  No.1524/2003. Balbir Singh son of deceased Joga Singh  has  filed Criminal Appeal NO.1523/2003 with grievances similar  as that of the State of Andhra Pradesh.

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       Accusations which led to the trial of the accused  persons are essentially as follows:

       Accused persons conspired to kill deceased Joga Singh,  to abet terrorist and disruptive activities. Deceased had  established many educational institutions to serve Sikh  community like Gurunanak Hospital in 1969, Gurunanak Public  School Bidar in 1975, Gurunanak School at Hyderabad in 1978  and could successfully establish Gurunanak Dev Engineering  College at Bidar in August, 1980.  Accused persons intended  to take over the said institutions and make a base for  Khalisthan movement.  After "Operation Blue Star" which  wounded the religious feelings of Sikhs, the Pro-Khalistan  militant Sikh Students Organisation had its watchful eyes on  Sikh student population of Bidar to establish its base.  Dilbagh Singh (A-4) an activist of all India Sikh Students  Federation (AISSF) who was studying in II year in the  Gurunanak Dev Engineering College came in contact with  Deepender Singh (A-5) who was student of Regional  Engineering College, Balky. Others involved were some wanted  activists of AISSF.     After proposed move of the Government of  India to have a comprehensive legislation for all  Gurudwaras, the deceased Joga Singh created a trust in the  name of Shree Nanak Jheera Sahib Trust (Foundation) and  transferred all the Educational Institutions to the trust  while delinking religious activities of the Gurudwara to  Gurudwara Nanak Jheera Sahib and Mai Bhago. Deceased  continued to be the head of both the trust and Gurudwara.

       Esher Singh (A-1) who was working as Sub-Inspector of  Central Reserve Police Force left the service after  "Operation Blue Star" and started moving about in  Hyderabad City wearing Bhindranwale type garments and  organised processions carrying Bhindranwale pictures and  held Bhog ceremony at Gowliguda Gurudwara, Hyderabad.  He  was making efforts to inject hatred and disaffection among  the Sikhs and could successfully take over the Barambala  Gurudwara at Rajendranagar, Attapur in Sikh Chavani and  successfully tried to bring some militant youth under his  fold and indoctrined Pro-Khalistan ideology by imparting  training to them in Shastra Vidya and Karate at Sikh Chavani  Attapur and Gowliguda. He also attempted to advocate the  said ideology in Bidar among the students.  Nanak Singh  Nishter (A-2) who was president of Central Gurudwara,  Gowliguda and also an Executive Member of Shree Nanak Jhira  Sahib, Bidar, and Gurudwara Mai Bhago at Janwada was  actively assisting the deceased in his religious activities,  felt disappointed and aggrieved by his non-inclusion as  member of the Trust of Prabhandak Committee, Nanak Jheera  Trust in 1987.  Nishan Singh (A-3) was residing in Bidar  since September 1987 as representative of Baba Charan Singh  who was incharge of Karseva of Kurukshetra Gurudwara.   Attempts to pursue deceased Joga Singh to transfer the Kar  Seva agreement in his name cancelling the earlier agreement  of Baba Charan Singh did not yield any result. A-1 to A-3  developed hatred against the deceased, and launched tirade  against the deceased with a view to take over the seat of  the deceased.  Dilbagh Singh (A-4) a native of Amritsar and  active member of All India Sikh Student Federation, Punjab,  sought his admission in Gurunanak Dev Engineering College,  Bidar, and started enlisting students from North India into  his Pro-Khalistan activities and became close associate of  A-3.  Deepender Singh (A-5), resident of Nabha, Patiala, and  student of Rural Engineering College, Bhalki which is at a  distance of 40 kms. from Bidar came in contact with A-1 and

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A-3 and was frequently visiting Dhera of Karseva. A-1 and  others were rigorously pursing their plan and propagating  Pro-Khalistan ideology among Sikh students of Bidar Rajender  Singh Dhingra (A-6) of Hind Motor Driving School and Sony  Travels and relative of A-2 is staunch supporter of A-1.   Mohinder Singh (A-7) a native of Haryana, a proclaimed  offender and terrorist of Punjab who was involved in number  of terrorist cases was also close associate of A-3.  Gurmail  Singh (A-8) of Punjab is also a terrorist of Punjab and  participated in various crimes alongwith A-5, A-7 and A-9.   Ram Singh (A-9) also is a wanted terrorist of Punjab who  participated in the present occurrence.

       A-1 and A-2 who were entertained for their religious  affiliation misused the same by collecting donations from  students seeking admissions in Gurunanak Dev Engineering  College, Bidar. On coming to know of the same, deceased  discarded them. Movement started by deceased to start a  Medical College heightened the tensions which was building  up with the arrival of some Sikh boys from North India.   Several non-Sikh educational institutions joined hands to  organise an agitation against granting of permission to  start medical college, because they feared that it would be  further increasing the number of Sikhs to about 1200, of  which 1000 from North India having anti-established stands.  There was organised violence and riots in September, 1988,  in which six Sikh students were killed, besides many were  injured and houses and shops of Sikhs were damaged and  burnt, besides religious institutions.  A-1 to A-3 who were  waiting for an opportunity to make their inroads to contain  the growing influence of the deceased Joga Singh and also to  occupy his position, made number of visits to Bidar,  contacted A-3, A-4 and A-5 and other militant Sikhs having  Pro-Khalistan ideas for starting tirade against the deceased  Joga Singh. They also started an active propaganda that  contributions made by the Sikh community to the educational  trust were misused with a view to deprive the Sikh  community. They also accused the deceased of many  improprieties including indifference to the security of  Sikhs.  At the instance of A-1 and A-2, a meeting of Sikh  community was convened on 22.9.1988 at Sikh Hostel  Narayanguda, Hyderabad to pay homage to departed souls of  students who were killed in Bidar riots.  In the meeting A-1  and A-2 proposed to hold Deewan-E Aam on 2.10.88 at Bidar  Gurudwara with an ulterior motive of defaming and  excommunicating the deceased and trustees and usurp the  control of Gurudwara and the trust. A-1, A-2, A-3, A-4, A-6  and others marshalled their associates, and mustered their  strength having successfully augmented majority among the  students who attended. A-1 and A-2 gave highly inflammatory  speeches making wild allegations against the deceased and  levelling allegations of mal-administration of religious  funds of the community, made the deceased responsible for  the misery to Sikh students and accused him of having failed  in his responsibility to protect the Sikhs at Bidar. In that  way A-1 to A-3 could successfully make a dent in  establishing a base for Pro-Khalistan movement and trying to  get support of those who were openly opposing the deceased  Joga Singh. A-1 and A-2 made their own henchmen as Punj  Pyaras and imposed punishment of "Thankayya" on the  deceased and four others holding them responsible for the  death of Sikh students and for their religious impropriety.  The deceased and his supporters resisted the said move and  the matter was referred to Thakhat Such Khand Shri Hazur  Saheb, Nanded, which is considered as Southern region

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religious head of the Sikh community. Hazura Singh (DW-36)  who is one of the Punj Pyaras of Nanded Gurudwara made  enquiries from A-1 and deceased, disapproved the move of A-1  of ex-communication and imposition of punishment on the  deceased. A-1 questioned the propriety of decision taken by  Hazura Singh (DW-36), but later obeyed the religious order.   Accused persons proclaimed that they will retaliate if the  culprits are not booked before 23rd November, 1988 (i.e.  Guru Nanak Jayanthi) as a part of terrorist activity to  create terror in the minds of moderate Sikhs.           On 28.12.1988, two vehicles bearing Nos. AHS 9424 AHA  1168 which were carrying sixty ceiling fans were burnt by  mob of students in Gurudwara premises.  In that regard a  case i.e. Cr. No. 422/88 U/Ss. 143, 211, 136 r/w 149 IPC was  registered at Gandhigunj P.S. of Bidar District against  unknown students in which the complicity of A-4 was strongly  suspected.  A-1 and A-2 started printing, publishing and  circulating highly inflammatory, defamatory propaganda  against the deceased Joga Singh, instigating student  community against the deceased with a view to bring them  under their fold and propagate Pro-Khalistan among Sikh  community and organise an organisation, calling itself as  "SIKH COMMANDO FORCE". They threatened the Government with  dire consequences under the pretext of championing the cause  of Sikh Community.

       Deceased was apprehensive of A-1 and his associates and  made earnest appeal to the authorities concerned requesting  to contain the anti-national activities, for protection and  also to take steps to contain the Pro-Khalistan activities.  As a security measure, check post was established on the  outskirts of Bidar to check the vehicles in which the Sikhs  were entering into Bidar and systematically check and  numbers noted with a view to prevent inflow of wanted Pro- Khalistan activities and arms and ammunition. Another check  post was established at the entrance of Gurdwara, Bidar,  besides various other major steps for tightening security at  Bidar Gurudwara under charge of M. Srivastava,  Superintendent of Police, Bidar. One officer was also posted  as Personal Security Officer to the deceased with a service  revolver and ammunitions.

       A-1 to A-3 intensified their war against the deceased  by abusing, threatening, intimidating him. By the end of  1988 A-1 to A-3 could successfully establish contact with  the underground dreaded terrorist Mohinder Singh (A-7) in  Nanded who was taking his shelter there. Thereafter A-7  shifted to Bidar alongwith his family and took shelter with  A-3 in his Dhera as a Kar Sevadar.  A-5, A-8 and A-9 used to  frequently move in the company of Kar Sevadar alongwith A-3,  A-4 and A-7. A-8 approached Dayal Singh (PW-32), Avtar Singh  (PW-26) and other residents of Hyderabad and requested them  to join hands with them in removing deceased from being a  religious head. A-7 shifted to Hyderabad and got  accommodation through PW-26 at Hyderabad.  A-1 and A-2 held  secret meetings in Kishan Bagh Chavani and made efforts to  enlist services of Sikh youth to liquidate deceased Joga  Singh.  A-1, A-2, A-3, A-4, A-5 to A-9 held number of  meetings in the house of A-2.

       In the month of February 1989, during the examination  of B.E. II year at G.N.D.E. College, numbers of students  including A-4 were caught while they were indulging in mal- practices.  At that time deceased refused to interfere with

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the enquiry in the matter.  At that time, A-3 and A-4  nourished hatred against the deceased. A-1 to A-9 entered  into criminal conspiracy to do away with deceased. A-1 was  mastermind of conspiracy for liquidating the deceased.  A-5  and A-7 were entrusted with the job of securing weapons. A-2  and A-3 provided shelter and finance for the operation, A-1  was entrusted to select youth for operation of annihilation,  while A-6 was to provide information and conveyance.  A-8  and A-9 were entrusted with execution of annihilation of  deceased.  In pursuance of said conspiracy, A-5 and A-9 went  to Punjab and secured A.K.47 rifles, one .32 revolver and  200 rounds of ammunition.  The accused persons surveyed the  topography of proposed scene of offence and were noticed  late in the night of 29.3.89.  On 24.3.89 A-1, A-7, A-8 and  A-9 alongwith Professor Darshan Singh Ragi visited Bidar  when the latter attended Keertan arranged by some devotees.  At that time, the plan of action proposed to liquidate Joga  Singh could not be executed. A-8 through A-6 secured a red  colour Maruti Car bearing Registration No. AEY 222 belonging  to PW-11 on payment of Rs.64,000/-. A-7, A-8 and A-9 visited  Bidar on 28.3.1989 in the said Maruti Car and contacted A-3,  A-4 and A-5 to track down the movements of deceased Joga  Singh.  In pursuance of said criminal conspiracy, A-5, A-7,  A-8 and A-9 went to the house of deceased in the red colour  Maruti Car while A-5 was waiting in the Car.  A-8 armed with  a .32 Revolver was guarding at the scene.  A-7 and A-9  entered the house armed with AK.47 assault rifle. On 30.3.89  at about 21.05 hours, while PW-1 was serving dinner while  other family members of deceased were witnessing the T.V. in  the drawing-cum-dining hall, A-7 and A-9 entered into the  drawing cum dinning hall, opened fire with A.K. Assault  rifle, pumped bullets on Joga Singh who succumbed to gun  shot injuries and on seeing the same Devender Singh (PW-1)  and Balwanth Singh (PW-2) raised cries, tried to chase them,  but the A-7 and A-9 while retreating fired at them  indiscriminatively to scare them away.  PW-1 chased them  upto main road and came to know through P. Satyanarayan (  PW-8) that 4 to 5 persons fled away in a red Maruti Car  towards Darussalam while scaring the public by opening fire  in the air.  A-5, A-7 and A-9 returned to the house where  they were staying and tried to quit the house immediately.   Meanwhile Darshan Singh (PW-14) and others surrounded the  house in which A-5, A-7 and A-9, tried to apprehend them,  but they fled away into the dark. A-8 who made attempt to  escape on Luna bearing Registration No. AEA 1326 was  surrounded by them.  He left the Luna and took to heels and  he was chased by them and on finding no way to escape, he  fired in the air to scare them and finally shot himself dead  with his Revolver.                                                                                       

       On receipt of the complaint a case (Cr.No.63/89) under  Section 302 IPC and Sections 25 and 27 of the Arms Act was  registered, inquest was conducted over the dead body, and it  was sent for post mortem. Blood stained clothes of the  deceased, empty cartridges and spent bullets were seized  under panchanamas. Residential portion of house of A-7 was  searched and a driving license, a receipt, H.P. Gas  cylinder, clothes, utensils and other household articles  were seized. Naganath (PW-15) identified A-7 to be Mohinder  Singh alias Satwender Singh @ Satta involved in number of  terrorist cases in Punjab and Haryana. C. Narasingha Rao  (PW-47) seized the application form, reservation slip  written by A-5 for himself and A-9 for their return journey  from Delhi to Hyderabad. Subsequently A-7 was killed in an

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encounter in the intervening night of 16/17-5-1989. In that  regard also one A.K. rifle was seized from his possession  which was deposited in the Court of Judicial Magistrate of  First Class, Sangrur. A-3, A-6, and A-5 were arrested on  3.4.1989, 7.4.1989 and  20.4.1989 respectively. Confessional  statement of A-5 was recorded under TADA and A-2 and A-1  were arrested on 27.4.1989 and 11.5.1989 respectively.           The trial Court on the basis of evidence tendered by  PWs 16 and 32 as corroborated by the confessional statement  of A-5 held that the accused appellant Esher Singh had  committed the offence punishable under Section 4 of TADA. It  was concluded that A-1 was giving provocative speeches for  formation of Khalistan and was inciting violence fanning the  religious feelings. Therefore the accusations clearly  established commission of offence punishable under Section 4  of TADA. It further came to hold that the other accusations  were not established. It was noted that the two assailants  who fired the guns leading to the death of the deceased were  not identified. Since some of the statements made in Court  were not stated during investigation, the trial Court did  not attach any importance thereto.          In support of the appeal filed by accused Esher Singh,  Mr. R.K. Jain learned senior counsel submitted that the  evidence of PWs 16 and 32 do not prove the accusations. It  was not stated during investigation regarding the need for  establishing Khalistan or about the claim alleged to have  been made that the accused appellant was Deccan    Bhindrawala. Merely because he was wearing clothes of a  particular colour, that also did not establish commission of  any offence. Statements made for the first time in court  without having been told during investigation should not  have been acted upon by the trial Court. No specific  instance of the so called statements that allegedly led   communal dis-harmony or fanning of religious feelings, and  the nature of provocation alleged to have been made in the  speeches for formation of Khalistan was stated. The alleged  confessional statement could not be relied upon because A-5  who was claimed to have made the confession died on  13.4.1991, even before the charges were framed and therefore  was not admissible in law. Even otherwise, the so called  confessional statement was recorded when the custody of A-5  was illegal as was observed by the High Court of Andhra  Pradesh in Writ Petition No.14403/1989 The High Court has  categorically held that the custody was illegal for the  period between 31.3.1989 and 1.10.1989.  Reference was made  to Kalpnath Rai v. State (Through CBI) (1997 (8) SCC 732) to  contend that the conclusions drawn by the trial Court were  erroneous. In essence, it was submitted that the trial Court  was not justified in convicting the accused Esher Singh.  

       Learned counsel for the State submitted that A-5 had  categorically stated about the involvement of A-1. Not only  PWs 16 and 32 but other witnesses i.e. PWs 1, 3, 14, 17, 19,  21 and 24 spoke in detail about the role played by various  accused persons. The evidence of PW-21 has not been  discarded and the evidence of PW-24 should not have been  dis-believed on mere surmises. The role played by accused  Esher Singh was graphically described by the prosecution  witnesses and the trial Court has noted them. Therefore, the  consideration should not have been restricted only to the  evidence of PWs 16 and 32. The pamphlet distributed were  published by A-1 and it clearly indicates what was in the  mind of accused persons regarding giving a boost to the

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Khalistan movement and creating communal disturbances and  disharmony. The evidence of certain witnesses has been  discarded on the ground of relationship, which is not the  correct approach. Merely because A-5 died before charges  were framed, that does not affect the confessional statement  which has been held to be voluntary. On the peculiar facts  of the case, when initially A-5 was not arrayed as an  accused subsequently the doubts regarding certain aspects  were set right by this Court and proceedings continued so  far as A-5 is concerned, the fact that he died before  framing of charge cannot affect the authenticity of his  confessional statement. Even if for the sake of argument it  is conceded that the same was not to be acted upon in terms  of Section 15 of TADA, yet by operation of Section 30 of the  Indian Evidence Act, 1872 (in short the ’Evidence Act’) it  can be considered. Initially, the trial Court had held that  TADA had no application to the facts of this case but this  Court held that TADA applies. There is no magical charm in  the expression "charged and tried" used in Section 15 of  TADA. It can very well mean charged for trial. A person can  be treated to be charged when allegations are made and not  necessarily when charges are framed. The confession of a co- accused is in the nature of substantive nature and  Kalpnath  Rai’s case (supra) has been over-ruled in State Through  Superintendent of Police,CBI/SIT v. Nalini and Ors.  (1999  (5) SCC 253). The chain of circumstances were clearly  established, the car used for commission of the offence was  traced and therefore the circumstances clearly established  that the accused respondents along with others named were  responsible for the killing of deceased and therefore the  acquittal from offence relatable to Section 120B and 302  cannot be maintained. The use of the car standing near the  house of the deceased and the purchase and sale of the car  are links which have been overlooked. The circumstances like  association of an accused with others, and sharing of   common/similar animus against the deceased have been  established. A-1 and A-2 had strong animosity and motive so  far as deceased is concerned. The movement in the close  proximity of the house of deceased Joga Singh clearly brings  out the patent object and conspiracy has been well  established. According to the prosecution version, two  persons entered, fired and killed. The search for the  accused started immediately when people came running. One  person who was traveling on a Luna was chased committed  suicide. There is evidence to show that he was A-8. The  materials on record show that the deceased A-5 was connected  with accused Gurmail and this also provides an additional  link to the chain of circumstances. The motive of the crime  has been spoken to by various witnesses. The animosity of A- 1 so far as deceased is concerned is well brought out by the  evidence which shows that because of deceased’s refusal to  pay money he was killed. Prior to that, he was ex- communicated, was receiving threatening letters and was  being made responsible for the killing of six Sikh students  through riots.  Significance of the statement relating to the  Blue Star Operation and the proclamation of A-1 to be Deccan  Bhindrawala are circumstances of great significance. The  deceased accused was falsely claiming to be one Mohinder  Singh, and had got an identity card in that name. But the  evidence shows that he was A-8. His presence in the car used  for get away and the evidence showing that he knew A-1  closely and that they were  meeting and moving together has  been established. Ext. P-18 shows that in October 1988 there  was a demand of money. These aspects have not been properly  considered.

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       The rigor of Section 15 TADA which is diluted after the  amendment has also been noted in Nalini’s case (supra) and  has full application to the facts of the case. A-5 was shown  as an accused in the charge sheet. Subsequently there was an  order of discharge, which was set aside by this Court so far  as proceedings under TADA are concerned.  

       Learned counsel for Balbir Singh, the son of the  deceased Joga Singh adopted the submissions made by learned  counsel for the State. Additionally, according to him, the  too technical interpretation of the expression "charged and  tried" would not be in line with the legislative intent.  The Act has been enacted to take care of all terrorist  activities. Since direct evidence is hard to find because of  fear psychosis created by the accused persons and normally  people try to remain behind doors. Special provisions  relating to nature of substantive evidence have been  provided in TADA. Both learned counsel for the State and  Balbir Singh submitted that this is a fit case where Section  3(3) of TADA and offences under the IPC have been clearly  found established.  

       We shall first deal with the question whether  confessional statement of A-5 can be acted upon. Section 15  reads as follows: "15. Certain confessions made to police  officers to be taken into consideration. -  (1) Notwithstanding anything in the Code or  in the Indian Evidence Act, 1872 (1 of 1872),  but subject to the provisions of this  section, a confession made by a person before  a police officer not lower in rank than a  Superintendent of Police and recorded by such  police officer either in writing or on any  mechanical device like cassettes, tapes or  soundtracks from out of which sounds or  images can be reproduced, shall be admissible  in the trial of such person or co-accused,  abettor or conspirator for an offence under  this Act or rules made thereunder :  Provided that co-accused, abettor or  conspirator is charged and tried in the same  case together with the accused.  (2) The police officer shall, before  recording any confession under sub-section  (1), explain to the person making it that he  is not bound to make a confession and that,  if he does so, it may be used as evidence  against him and such police officer shall not  record any such confession unless upon  questioning the person making it, he has  reason to believe that it is being made  voluntarily."                                  (Underlined for emphasis)           Crucial words in the provision are "charged and  tried". The use of the expression "charged and tried"  imposes cumulative conditions. Firstly, the two persons who  are the accused and the co-accused in the sense used by the  Legislature under Section 15, must be charged in the same  trial, and secondly, they must be tried together. Kalpnath  Rai’s case (supra) has been overruled in Nalini’s case  (supra) making the position clear that the confession of a  co-accused is substantive evidence.

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       Section 2(b) of the Code of Criminal Procedure, 1973  (in short the ’Code’) defines "charge" as follows:

"2(b) ’charge’ includes any head of  charge when the charge contains more  heads than one:"

The Code does not define what a charge is. It is the  precise formulation of the specific accusation made  against a person who is entitled to know its nature at the  earliest stage. A charge is not an accusation made or  information given in abstract, but an accusation made  against a person in respect of an act committed or omitted  in violation of penal law forbidding or commanding it. In  other words, it is an accusation made against a person in  respect of an offence alleged to have been committed by  him. A charge is formulated after inquiry as distinguished  from the popular meaning of the word as implying  inculpation of a person for an alleged offence as used in  Section 224 of IPC.    

       Chapter XVII of the Code deals with "charge". Section  211 thereof deals with content of charge. Section 273  appearing in Chapter XXIII provides that evidence is to be  taken in presence of the accused. The person becomes an  accused for the purpose of trial after the charges are  framed.  The expression used in Section 15 TADA is "charged  and tried". The question of having a trial before charges  are framed does not arise. Therefore, the only  interpretation that can be given to the expression "charged  and tried" is that the use of a confessional statement  against a co-accused is permissible when both the accused  making the confessional statement and the co-accused are  facing trial after framing of charges. In State of Gujarat  v. Mohammed Atik and Ors. (1998 (4) SCC 351) this position  was highlighted. Unless a person who charged faces trial  along with the co-accused the confessional statement of the  maker of the confession cannot be of any assistance and has  no evidentiary value as confession when he dies before  completion of trial. Merely because at some stage there was  some accusation, unless charge has been framed and he has  faced trial till its completion, the confessional statement  if any is of no assistance to the prosecution so far as the  co-accused is concerned. In fact, in para 10 in Mohammed  Atik’s case (supra) it was observed that when it was  impossible to try them together the confessional statement  has to be kept out of consideration.  

So far as application of Section 30 of Evidence Act is  concerned, in Nalini’s case (supra) this question was  examined and it was held in paragraphs 90 and 91 as follows: "90.    But the amendment of 1993 has completely  wiped out the said presumption against a co- accused from the statute-book. In other  words, after the amendment a Designated Court  could not do what it could have done before  the amendment with the confession of one  accused against a co-accused. Parliament has  taken away such empowerment. Then what is it  that Parliament did by adding the words in  Section 15(1) and by inserting the proviso?  After the amendment the Designated Court  could use the confession of one accused

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against another accused only if two  conditions are fulfilled :  (1) The co-accused should have been  charged in the same case along with the  confessor.  (2) He should have been tried together  with the confessor in the same case.  Before amendment the Designated Court had no  such restriction as the confession of an  accused could have been used against a co- accused whether or not the latter was charged  or tried together with the confessor.  91.     Thus the amendment in 1993 was a clear  climbing down from a draconian legislative  fiat which was in the field of operation  prior to the amendment insofar as the use of  one confession against another accused was  concerned. The contention that the amendment  in 1993 was intended to make the position  more rigorous as for a co-accused is,  therefore, untenable. "

       So far as the appeal filed by accused Esher Singh is  concerned, the basic question is that even if the  confessional statement purported to have been made by A-5 is  kept out of consideration, whether residuary material is  sufficient to find him guilty. Though it is true as  contended by learned counsel for the accused-appellant Esher  Singh that some statements were made for the first time in  Court and not during investigation, it has to be seen as to  what extent they diluted the testimony of Balbeer Singh and  Dayal Singh (PWs 16 and 32) used to bring home the  accusations. A mere elaboration cannot be termed as  discrepancy. When the basic features are stated, unless the  elaboration is of such nature that it creates a different  contour or colour of the evidence, the same cannot be said  to have totally changed the complexion of the case. It is to  be noted that in addition to the evidence of PWs 16 and 32,  the evidence of S. Narayan Singh (PW-21) provides the  necessary links and strengthens the prosecution version. We  also find substance in the plea taken by learned counsel for  the State that evidence of Amar Singh Bungai (PW-24) was not  tainted in any way, and should not have been discarded and  dis-believed only on surmises. Balbeer Singh (PW-3) the son  of the deceased has also stated about the provocative  statements in his evidence. Darshan Singh (PW-14) has   spoken about the speeches of the accused Esher Singh  highlighting the Khalistan movement. We find that the trial  Court had not given importance to the evidence of some of  the witnesses on the ground that they were relatives of the  deceased. The approach is wrong. Mere relationship does not  dis-credit the testimony of a witness. What is required is  careful scrutiny of the evidence. If after careful scrutiny  the evidence is found to be credible and cogent, it can be  acted upon. In the instant case, the trial Court did not  indicate any specific reason to cast doubt on the veracity  of evidence of the witnesses whom it had described to be the  relatives of the deceased. PW-24 has categorically stated  about the provocative speeches by A-1. No definite cross- examination on provocative nature of speech regarding  Khalistan movement was made, so far as this witness is  concerned.   

       Section 4 of TADA reads as under: "4.     Punishment for disruptive activities. -

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(1) Whoever commits or conspires or attempts  to commit or abets, advocates, advises, or  knowingly facilitates the commission of, any  disruptive activity or any act preparatory to  a disruptive activity shall be punishable  with imprisonment for a term which shall not  be less than five years but which may extend  to imprisonment for life and shall also be  liable to fine.  (2) For the purposes of sub-section (1),  "disruptive activity" means any action  taken, whether by act or by speech or through  any other media or in any other manner  whatsoever, -  (i) which questions, disrupts or is  intended to disrupt, whether directly or  indirectly, the sovereignty and  territorial integrity of India; or  (ii) which is intended to bring about or  supports any claim, whether directly or  indirectly, for the cession of any part  of India or the secession of any part of  India from the Union.  Explanation. - For the purposes of this sub- section, -  (a) ’cession’ includes the admission of  any claim of any foreign country to any  part of India, and  (b) ’secession’ includes the assertion  of any claim to determine whether a part  of India will remain within the Union.  (3) Without prejudice to the generality of  the provisions of sub-section (2), it is  hereby declared that any action taken,  whether by act or by speech or through any  other media or in any other manner  whatsoever, which -  (a) advocates, advises, suggests or  incites; or  (b) predicts, prophesies or pronounces  or otherwise expresses, in such manner  as to incite, advise, suggest or prompt,  the killing or the destruction of an person  bound by oath under the Constitution to  uphold the sovereignty and integrity of India  or any public servant shall be deemed to be a  disruptive activity within the meaning of  this section.  (4) Whoever harbours or conceals, or attempts  to harbour or conceal, any disruptionist  shall be punishable with imprisonment for a  term which shall not be less than five years  but which may extend to imprisonment for life  and shall also be liable to fine."  

The evidence makes the position crystal clear so far as  accusations against appellant Esher are concerned.           Section 4 of TADA covers a wide range of disruptive  activities. It not only encompasses commission of disruptive  activities, but also conspiracy, attempt, abetment,  advocating, advising or facilitation of such activity or an  act preparatory to such activity.  What is disruptive  activity is described in sub-section (2) of Section 4.  Sub- section (3) further widens the coverage of generality given

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by sub-section (2).  For the purpose of applying sub-section  (2), the explanation appended thereto assumes great  significance for the case at hand; more particularly in view  of the inclusive definition of "secession". Demand for  Khalistan is clearly encompassed by the said definition.

       The ingredients necessary to bring in application of  Section 4 of TADA have been clearly established. Therefore,  the appeal filed by Esher Singh is devoid of merit and  stands dismissed as the sentence imposed is found to be  commensurate with the gravity of the offence and also needs  no interference.  

       Coming to the appeal filed by Balbir Singh, we shall  first deal with the objection regarding maintainability of  the appeal, as learned counsel for the accused Esher Singh  has questioned maintainability thereof.  

A doubt has been raised in many cases about the  competence of a private party as distinguished from the  State, to invoke the jurisdiction of this Court under  Article 136 of the Constitution of India, 1950 (in short the  ’Constitution’) against a judgment of acquittal by the High  Court. We do not see any substance in the doubt. Appellate  power vested in this Court under Article 136 of the  Constitution is not to be confused with ordinary appellate  power exercised by appellate courts and appellate tribunals  under specific statutes. It is a plenary power, ’exercisable  outside the purview of ordinary law’ to meet the pressing  demands of justice (See Durga Shankar Mehta v. Thakur  Raghuraj Singh (AIR 1954 SC 520). Article 136 of the  Constitution neither confers on anyone the right to invoke  the jurisdiction of this Court nor inhibits anyone from  invoking the Court’s jurisdiction. The power is vested in  this Court but the right to invoke the Court’s jurisdiction  is vested in no one. The exercise of the power of this Court  is not circumscribed by any limitation as to who may invoke  it. Where a judgment of acquittal by the High Court has led  to a serious miscarriage of justice this Court cannot  refrain from doing its duty and abstain from interfering on  the ground that a private party and not the State has  invoked the Court’s jurisdiction. We do not have slightest  doubt that we can entertain appeals against judgments of  acquittal by the High Court at the instance of interested  private parties also. The circumstance that the Code does  not provide for an appeal to the High Court against an order  of acquittal by a subordinate Court, at the instance of a  private party, has no relevance to the question of the power  of this Court under Article 136. We may mention that in  Mohan Lal v. Ajit Singh (1978 (3) SCC 279) this Court  interfered with a judgment of acquittal by the High Court at  the instance of a private party. An apprehension was  expressed that if appeals against judgments of acquittal at  the instance of private parties are permitted there may be a  flood of appeals. We do not share the apprehension. Appeals  under Article 136 of the Constitution are entertained by  special leave granted by this Court, whether it is the State  or a private party that invokes the jurisdiction of this  Court, and special leave is not granted as a matter of  course but only for good and sufficient reasons, well  established by the practice of this Court.                            Above was the view expressed by this Court in  Arunachalam v. P.S.R. Sadhanantham and Anr. (1979 (2) SCC  279). The view has again been reiterated by the Constitution

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Bench in P.S.R. Sadhanantham v. Arunachalam and Anr. (1980  (3) SCC 141).

       It is to be seen whether the broad spectrum spread out  of Article 136 fills the bill from the point of view of  "procedure established by law". In express terms, Article  136 does not confer a right of appeal on a party as such but  it confers a wide discretionary power on this Court to  interfere in suitable cases. The discretionary dimension is  considerable but that relates to the power of the Court.  Article 136 is a special jurisdiction. It is residuary  power; it is extraordinary in its amplitude, its limits,  when it chases injustice, is the sky itself. This Court  functionally fulfils itself by reaching out to injustice  wherever it is and this power is largely derived in the  common run of cases from Article 136. Is it merely a power  in the court to be exercised in any manner it fancies? Is  there no procedural limitation in the manner of exercise and  the occasion for exercise? Is there no duty to act fairly  while hearing a case under Article 136, either in the matter  of grant of leave or, after such grant, in the final  disposal of the appeal? There cannot be even a shadow of  doubt that there is a procedure necessarily implicit in the  power vested in this Court. The founding fathers unarguably  intended in the very terms of Article 136 that it shall be  exercised by the judges of the highest Court of the land  with scrupulous adherence to settled judicial principles,  well established by precedents in our jurisprudence.                   It is manifest that Article 136 is of composite  structure, is power-cum-procedure - power in that it vests  jurisdiction in this Court and procedure in that it spells a  mode of hearing. It obligates the exercise of judicial  discretion and the mode of hearing so characteristic of the  court process with the avowed purpose of averting  miscarriage of justice. In the instant case, both the State  and Balbir Singh (son of the deceased) have questioned  correctness of the impugned judgment. Appeal filed by Balbir  Singh is first in point of time.  We are of the view that on  the facts of the case, there is no question of holding the  appeal filed by Balbir Singh to be not maintainable.

       The aspects highlighted by learned counsel for the  State and Balbir Singh do not disturb the positive  conclusions of the trial Court about the absence of any  positive and cogent evidence so far as the respondents  except accused Esher Singh is concerned. None of the  witnesses examined on behalf of the prosecution stated  anything about the descriptive particulars of the  assailants. There was also no evidence of A-1 indulging in  any manner armed with firearms or explosives. The evidence  of witnesses goes only to the extent of showing, as noted  earlier that A-1 was giving provocative speeches for  formation of Khalistan and inciting the Sikhs for violence  fanning the religious feelings. The evidence shows that A-1  was inciting the Sikhs to form separate Khalistan  State and  making Hyderabad as base for Khalistan movement.  

       Merely because the accused A-1 was holding the  deceased, as alleged, to be responsible for the killing of  six Sikh students that per se does not prove conspiracy.  Section 120B of IPC is the provision which provides for  punishment for criminal conspiracy. Definition of ’criminal  conspiracy’ given in Section 120A reads as follows:

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"120A- When two or more persons agree to do,  or cause to be done,-

(1)     an illegal act, or   (2)     an act which is not illegal by illegal  means, such an agreement is designated a  criminal conspiracy;   Provided that no agreement except an  agreement to commit an offence shall amount  to a criminal conspiracy unless some act  besides the agreement is done by one or more  parties to such agreement in pursuance  thereof".

The elements of a criminal conspiracy have been stated to  be: (a) an object to be accomplished, (b) a plan or scheme  embodying means to accomplish that object, (c) an agreement  or understanding between two or more of the accused persons  whereby, they become definitely committed to co-operate for  the accomplishment of the object by the means embodied in  the agreement, or by any effectual means, (d) in the  jurisdiction where the statute required an overt act. The  essence of a criminal conspiracy is the unlawful combination  and ordinarily the offence is complete when the combination  is framed. From this, it necessarily follows that unless the  statute so requires, no overt act need be done in  furtherance of the conspiracy, and that the object of the  combination need not be accomplished, in order to constitute  an indictable offence. Law making conspiracy a crime, is  designed to curb immoderate power to do mischief which is  gained by a combination of the minds. The encouragement and  support which co-conspirators give to one another rendering  enterprises possible which, if left to individual effort,  would have been impossible, furnish the ground for visiting  conspirators and abettors with condign punishment. The  conspiracy is held to be continued and renewed as to  encompass all its members wherever and whenever any member  of the conspiracy acts in furtherance of the common design.  (See: American Jurisprudence Vol.II See 23, p. 559). For an  offence punishable under section 120-B, prosecution need not  necessarily prove that the perpetrators expressly agree to  do or cause to be done illegal act; the agreement may be  proved by necessary implication. Offence of criminal  conspiracy has its foundation in an agreement to commit an  offence. A conspiracy consists not merely in the intention  of two or more, but in the agreement of two or more to do an  unlawful act by unlawful means.  So long as such a design  rests in intention only, it is not indictable. When two  agree to carry it into effect, the very plot is an act in  itself, and an act of each of the parties, promise against  promise, actus contra actum, capable of being enforced, if  lawful, punishable if for a criminal object or for use of  criminal means.   

       No doubt in the case of conspiracy there cannot be any  direct evidence. The ingredients of offence are that there  should be an agreement between persons who are alleged to  conspire and the said agreement should be for doing an  illegal act or for doing illegal means an act which itself  may not be illegal. Therefore, the essence of criminal  conspiracy is an agreement to do an illegal act and such an  agreement can be proved either by direct evidence or by

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circumstantial evidence or by both, and it is a matter of  common experience that direct evidence to prove conspiracy  is rarely available. Therefore, the circumstances proved  before, during and after the occurrence have to be  considered to decide about the complicity of the accused.

In Halsbury’s Laws of England (vide 4th Ed. Vol.11,  page 44, page 58), the English Law as to conspiracy has been  stated thus:

"Conspiracy consists in the agreement of two  or more persons to do an unlawful act, or to  do a lawful act by unlawful means. It is an  indictable offence at common law, the  punishment for which is imprisonment or fine  or both in the discretion of the Court.  

The essence of the offence of conspiracy is  the fact of combination by agreement. The  agreement may be express or implied, or in  part express and in part implied. The  conspiracy arises and the offence is  committed as soon as the agreement is made;  and the offence continues to be committed so  long as the combination persists, that is  until the conspiratorial agreement is  terminated by completion of its performance  or by abandonment or frustration or however,  it may be. The actus rues in a conspiracy is  the agreement to execute the illegal conduct,  not the execution of it. It is not enough  that two or more persons pursued the same  unlawful object at the same time or in the  same place; it is necessary to show a meeting  of minds, a consensus to affect an unlawful  purpose. It is not, however, necessary that  each conspirator should have been in  communication with every other."

       There is no difference between the mode of proof of the  offence of conspiracy and that of any other offence, it can  be established by direct or circumstantial evidence. (See:  Bhagwan Swarup Lal Bishan Lal etc.etc vs. State of  Maharashtra [AIR 1965 SC 682 at p.686])

It was held that the expression "in reference to  their common intention" in Section 10 is very  comprehensive and it appears to have been designedly used  to give it a wider scope than the words "in furtherance  of" in the English law; with the result, anything said,  done or written by a co-conspirator, after the conspiracy  was formed, will be evidence against the other before he  entered the field of conspiracy or after he left it.   Anything said, done or written is a relevant fact only.

"as against each of the persons believed to  be so conspiring, as well as for the purpose  of proving the existence of the conspiracy  as for the purpose of showing that any such  person was a party to it".

"In short, the section can be analysed  as follows: (1) There shall be a prima facie  evidence affording a reasonable ground for a

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court to believe that two or more persons  are members of a conspiracy; (2) if the said  condition is fulfilled, anything said, done  or written by any one of them in reference  to their common intention will be evidence  against the other; (3) anything said, done  or written by him should have been said,  done or written by him after the intention  was formed by any one of them; (4) it would  also be relevant for the said purpose  against another who entered the conspiracy  whether it was said, done or written before  he entered the conspiracy or after he left  it, and (5) it can only be used against a  co-conspirator and not in his favour."

We are aware of the fact that direct independent evidence of  criminal conspiracy may not ordinarily and is generally not  available and its existence invariably is a matter of  inference except as rare exceptions. The inferences are  normally deduced from acts of parties in pursuance of a  purpose in common between the conspirators.  This Court in  V.C.Shukla v. State (Delhi Admn.) (1980 2 SCC 665) held that  to prove criminal conspiracy there must be evidence direct  or circumstantial to show that there was an agreement  between two or more persons to commit an offence.  There  must be a meeting of minds resulting in ultimate decision  taken by the conspirators regarding the commission of an  offence and where the factum of conspiracy is sought to be  inferred from circumstances, the prosecution has to show  that the circumstances give rise to a conclusive or  irresistible inference of an agreement between two or more  persons to commit an offence.  As in all other criminal  offences, the prosecution has to discharge its onus of  proving the case against the accused beyond reasonable  doubt.  The circumstances in a case, when taken together on  their face value, should indicate the meeting of the minds  between the conspirators for the intended object of  committing an illegal act or an act which is not illegal, by  illegal means.  A few bits here and a few bits there on  which the prosecution relies cannot be held to be adequate  for connecting the accused with the commission of the crime  of criminal conspiracy.  It has to be shown that all means  adopted and illegal acts done were in furtherance of the  object of conspiracy hatched.  The circumstances relied for  the purposes of drawing an inference should be prior in  point of time than the actual commission of the offence in  furtherance of the alleged conspiracy.

       Privacy and secrecy are more characteristics of a  conspiracy, than of a loud discussion in an elevated place  open to public view. Direct evidence in proof of a  conspiracy is seldom available; offence of conspiracy can be  proved by either direct or circumstantial evidence. It is  not always possible to give affirmative evidence about the  date of the formation of the criminal conspiracy, about the  persons who took part in the formation of the conspiracy,  about the object, which the objectors set before themselves  as the object of conspiracy, and about the manner in which  the object of conspiracy is to be carried out, all this is  necessarily a matter of inference.           The provisions of Section 120A and 120B, IPC have

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brought the law of conspiracy in India in line with the  English Law by making the overt act unessential when the  conspiracy is to commit any punishable offence. The English  Law on this matter is well settled. Russell on Crime (12  Ed.Vol.I, p.202) may be usefully noted-          "The gist of the offence of conspiracy  then lies, not in doing the act, or effecting  the purpose for which the conspiracy is  formed, nor in attempting to do them, nor in  inciting others to do them, but in the  forming of the scheme or agreement between  the parties, agreement is essential. Mere  knowledge, or even discussion, of the plan is  not, per se, enough."

Glanville Williams in the "Criminal Law" (Second Ed. P.  382) states-

"The question arose in an lowa case, but it  was discussed in terms of conspiracy rather  than of accessoryship. D, who had a grievance  against P, told E that if he would whip P  someone would pay his fine. E replied that he  did not want anyone to pay his fine, that he  had a grievance of his own against P and that  he would whip him at the first opportunity. E  whipped P. D was acquitted of conspiracy  because there was no agreement for ’concert  of action’, no agreement to ’co-operate’.  

Coleridge, J. while summing up the case to Jury in Regina v.  Murphy [(1837) 173 ER 502 at p. 508] states:

       "I am bound to tell you, that although  the common design is the root of the charge,  it is not necessary to prove that these two  parties came together and actually agreed in  terms to have this common design and to  pursue it by common means, and so to carry it  into execution. This is not necessary,  because in many cases of the most clearly  established conspiracies there are no means  of proving any such thing and neither law nor  common sense requires that it should be  proved. If you find that these two persons  pursued by their acts the same object, often  by the same means, one performing one part of  an act, so as to complete it, with a view to  the attainment of the object which they were  pursuing, you will be at liberty to draw the  conclusion that they have been engaged in a  conspiracy to effect that object. The  question you have to ask yourselves is, had  they this common design, and did they pursue  it by these common means the design being  unlawful."

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       As noted above, the essential ingredient of the offence  of criminal conspiracy is the agreement to commit an  offence. In a case where the agreement is for accomplishment  of an act which by itself constitutes an offence, then in  that event no overt act is necessary to be proved by the  prosecution because in such a situation, criminal conspiracy  is established by proving such an agreement. Where the  conspiracy alleged is with regard to commission of a serious  crime of the nature as contemplated in Section 120B read  with the proviso to sub-section (2) of Section 120A, then in  that event mere proof of an agreement between the accused  for commission of such a crime alone is enough to bring  about a conviction under Section 120B and the proof of any  overt act by the accused or by any one of them would not be  necessary. The provisions, in such a situation, do not  require that each and every person who is a party to the  conspiracy must do some overt act towards the fulfillment of  the object of conspiracy, the essential ingredient being an  agreement between the conspirators to commit the crime and  if these requirements and ingredients are established, the  act would fall within the trapping of the provisions  contained in section 120B [See: S.C. Bahri v. State of Bihar  (AIR 1994 SC 2420)]

The conspiracies are not hatched in open, by their  nature, they are secretly planned, they can be proved even  by circumstantial evidence, the lack of direct evidence  relating to conspiracy has no consequence. [See: E.K.  Chandrasenan v. State of Kerala (AIR 1995 SC 1066)].           In Kehar Singh and Ors. v. The State (Delhi  Administration) [AIR 1988 SC 1883 at p. 1954], this Court  observed:

       "Generally, a conspiracy is hatched in  secrecy and it may be difficult to adduce  direct evidence of the same. The prosecution  will often rely on evidence of acts of  various parties to infer that they were done  in reference to their common intention. The  prosecution will also more often rely upon  circumstantial evidence. The conspiracy can  be undoubtedly proved by such evidence direct  or circumstantial. But the court must enquire  whether the two persons are independently  pursuing the same end or they have come  together to the pursuit of the unlawful  object. The former does not render them  conspirators, but the latter does. It is,  however, essential that the offence of  conspiracy required some kind of physical  manifestation of agreement. The express  agreement, however, need not be proved. Nor  actual meeting of the two persons is  necessary. Nor it is necessary to prove the  actual words of communication. The evidence  as to transmission of thoughts sharing the  unlawful design may be sufficient. Conspiracy  can be proved by circumstances and other  materials. (See: State of Bihar v. Paramhans  [1986 Pat LJR 688]). To establish a charge of  conspiracy knowledge about indulgence in  either an illegal act or a legal act by  illegal means is necessary. In some cases,  intent of unlawful use being made of the

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goods or services in question may be inferred  from the knowledge itself. This apart, the  prosecution has not to establish that a  particular unlawful use was intended, so long  as the goods or service in question could not  be put to any lawful use. Finally, when the  ultimate offence consists of a chain of  actions, it would not be necessary for the  prosecution to establish, to bring home the  charge of conspiracy, that each of the  conspirators had the knowledge of what the  collaborator would do so, so long as it is  known that the collaborator would put the  goods or service to an unlawful use. (See:  State of Maharashtra v. Som Nath Thapa [JT  1996 (4) SC 615])

The most important ingredient of the offence being the  agreement between two or more persons to do an illegal act.  In a case where criminal conspiracy is alleged, the court  must inquire whether the two persons are independently  pursuing the same end or they have come together to pursue  the unlawful object. The former does not render them  conspirators but the latter does. For the offence of  conspiracy some kind of physical manifestation of agreement  is required to be established. The express agreement need  not be proved.  The evidence as to the transmission of  thoughts sharing the unlawful act is not sufficient. A  conspiracy is a continuing offence which continues to  subsist till it is executed or rescinded or frustrated by  choice of necessity.  During its subsistence whenever any  one of the conspirators does an act or series of acts, he  would be held guilty under Section 120-B IPC.

In Ajay Agarwal vs. Union of India and Ors. (JT 1993  (3) SC 203), it was held as follows:-  

    x  x       x       x       x       x

"8.....It is not necessary that each  conspirator must know all the details of the  scheme nor be a participant at every stage.   It is necessary that they should agree for  design or object of the conspiracy.   Conspiracy is conceived as having three  elements: (1) agreement; (2) between two or  more persons by whom the agreement is  effected; and (3) a criminal object, which  may be either the ultimate aim of the  agreement, or may constitute the means, or  one of the means by which that aim is to be  accomplished.  It is immaterial whether this  is found in the ultimate objects.  The common  law definition of ’criminal conspiracy’ was  stated first by Lord Denman in Jones’ case  that an indictment for conspiracy must  "charge a conspiracy to do an unlawful act  by unlawful means" and was elaborated by  Willies, J. on behalf of the judges while  referring the question to the House of Lords  in Mulcahy v. Reg and House of Lords in  unanimous decision reiterated in Quinn v.

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Leathem:   ’A conspiracy consists not merely in the  intention of two or more, but in the  agreement of two or more, to do an unlawful  act, or to do a lawful act by unlawful means.   So long as such a design rest in intention  only, it is not indictable.  When two agree  to carry it into effect, the very plot is an  act in itself, and the act of each of the  parties, promise against promise, actus  contra actum, capable of being enforced, if  lawful; punishable of for a criminal object,  or for the use of criminal means.’

This Court in B.G. Barsay v. State of  Bombay held:

"The gist of the offence is an  agreement to break the law.  The parties to  such an agreement will be guilty of criminal  conspiracy, though the illegal act agreed to  be done has not been done.  So too, it is an  ingredient of the offence that all the  parties should agree to do a single illegal  act.  It may comprise the commission of a  number of acts.  Under Section 43 of the  Indian Penal Code, an act would be illegal if  it is an offence or if it is prohibited by  law."

In Yash Pal Mittal v. State of Punjab  [(1977) 4 SCC 540]  the rule was laid as follows: (SCC p. 543 para 9)

"The very agreement, concert or league  is the ingredient of the offence.  It is not  necessary that all the conspirators must know  each and every detail of the conspiracy as  long as they are co-participators in the main  object of the conspiracy.  There may be so  many devices and techniques adopted to  achieve the common goal of the conspiracy and  there may be division of performances in the  chain of actions with one object to achieve  the real end of which every collaborator must  be aware and in which each one of them must  be interested.  There must be unity of object  or purpose but there may be plurality of  means sometimes even unknown to one another,  amongst the conspirators. In achieving the  goal several offences may be committed by  some of the conspirators even unknown to the  others.  The only relevant factor is that all  means adopted and illegal acts done must be  and purported to be in furtherance of the  object of the conspiracy even though there  may be sometimes misfire or overshooting by  some of the conspirators.

In Mohammad Usman Mohammad Hussain  Maniyar and Ors.  v. State of Maharashtra   (1981) 2 SCC 443, it was held that for an  offence under Section 120B IPC, the

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prosecution need not necessarily prove that  the perpetrators expressly agreed to do or  cause to be done the illegal act, the  agreement may be proved by necessary  implication."

After referring to some judgments of the United States  Supreme Court and of this Court in Yash Pal Mittal’s case  (supra) and Ajay Aggarwal’s case (supra) the Court in State  of Maharashtra v. Som Nath Thapa (referred to in Kehar  Singh’s case (supra) summarized the position of law and the  requirements to establish the charge of conspiracy, as  under: (SCC p. 668, para 24).

"24. The aforesaid decisions, weighty as  they are, lead us to conclude that to  establish a charge of conspiracy knowledge  about indulgence in either an illegal act or  a legal act by illegal means is necessary.  In some cases, intent of unlawful use being  made of the goods or services in question  may be inferred from the knowledge itself.   This apart, the prosecution has not to  establish that a particular unlawful use was  intended, so long as the goods or service in  question could not be put to nay lawful use.   Finally, when the ultimate offence consists  of a chain of actions, it would not be  necessary for the prosecution to establish,  to bring home the charge of conspiracy, that  each of the conspirators had the knowledge  of what the collaborator would do, so long  as it is known that the collaborator would  put the goods or service to an unlawful  use." [Also see State of Kerala v. P.  Sugathan and Anr. (2000 (8) SCC page 203);  and Devender Pal Singh v. State of N.C.T. of  Delhi and Anr. (2002 (5) SCC 234)]

       Even in the light of the principles highlighted above  when the evidence is tested, the inevitable conclusion is  that the trial Court was justified in holding that  accusations under Section 120B were not made out so far as  the offences under IPC are concerned. So far as the motive  for the killing is concerned, the evidence is clear to the  extent that A-1 wanted removal of the deceased from the  bodies of various trusts and educational institutions and  not his removal from this world. In the absence of adequate  material to establish commission of offences punishable  under Section 302 or 302 read with Section 120B and Section  3(3), 5 and 6 of TADA and Section 27 of the Arms Act, as  rightly held to have been not established by the trial  Court, the appeals filed by the State and Balbir Singh are  without merit. In the ultimate, all the three appeals are  without merit and are dismissed.