14 October 1955
Supreme Court
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TOPANDAS Vs THE STATE OF BOMBAY.

Case number: Appeal (crl.) 42 of 1955


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PETITIONER: TOPANDAS

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 14/10/1955

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.

CITATION:  1956 AIR   33            1955 SCR  (5) 881

ACT: Indian  Penal Code (Act XLV of 1860), ss. 120-A,  120-B-Cri- minal  conspiracy-Two  or  more  persons  must  be   parties thereto-One  person  alone cannot be  held  guilty-If  other alleged co-conspirators are acquitted of the charge.

HEADNOTE: According  to  the definition of criminal conspiracy  in  s. 120-A’ of the Indian Penal Code two or more persons must  be patties, to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple  reason that one cannot conspire with oneself. Where, therefore, 4 named individuals as in the present case eye  charged  with  having committed  an  offence  under  s. 120-.B. I.P.C. and three out of those four were acquitted of the  charge, the fourth accused could not be held guilty  of the offence of criminal conspiracy.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 42  of 1955. On Appeal by Special leave from the Judgment and Order dated the  8th October 1954 of the Bombay High Court  in  Criminal Appeal No. 315 of 1954 arising out of the Judgment and Order dated  the  6th  January  1954  of  the  Court  of  the  4th Presidency Magistrate, Bombay in Cases Nos. 639-40/P-1955. H.   J.  Umrigar, J. B. Dadachanji and Rajinder  Narain  for the appellant. Porus A. Mehta and P. G. Gokhale for the respondent. 1955.  October 14.  The Judgment of the Court was  delivered by BHAGWATI J.-The accused No. 1, the Appellant before us,  and accused  Nos. 2, 3 and 4 were charged that they, at  Bombay, between about June 1950 and November 1950, were parties to a criminal conspiracy by agreeing to do certain illegal  acts, to wit: Firstly, 882 that  they  used  as genuine forged  bills  of  entry  which included  bills  of  entry Exhibit Z;  Secondly,  that  they

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-,heated the Deputy Chief Controller of Imports, Bombay,  by fraudulently  I and dishonestly inducing him to  deliver  to the firm of J. Sobhraj & Co., an import licence bearing  No. 248189/48 to import cycles from United Kingdom of the  value of Rs. 1,98,960; Thirdly, that they cheated the Deputy Chief Controller  of Imports, Bombay, by falsely  and  dishonestly inducing him to deliver to the firm of J. Sobhraj & Co.,  an import licence bearing No. 203056/48 to import watches  from Switzerland of the value of Rs. 3,45,325; and Fourthly, that they cheated the Deputy Chief Controller of Imports, Bombay, by  fraudulently and dishonestly inducing him to deliver  to the firm of J. Sobhraj & Co., an import licence bearing  No. 250288/48  to  import  artificial  silk  piece  goods   from Switzerland  of  the value of Rs. 12,11,829; and  the  above said  illegal  acts  were  done in  pursuance  of  the  said agreement  and  that  they  thereby  committed  an   offence punishable  under  section 120-B of the Indian  Penal  Code. There  were  also  charges against  all  the  accused  under section  471 read with section 465 and section 34  and  also under  section 420 read with section 34 of the Indian  Penal Code in respect of each of the three illegal acts aforesaid. The  learned Presidency Magistrate, 23rd  Court,  Esplanade, Bombay,  tried  all the accused for the  said  offences  and acquitted  all of them.  The State of Bombay thereupon  took an appeal to the High Court of Judicature at Bombay, and the High Court reversed the acquittal of accused No. I and  held him  guilty  of  all the offences with  which  he  had  been charged  including  the offence under section 120-B  of  the Indian Penal Code.  The acquittal of accused 2, 3 and 4 was confirmed. The High Court, even though it acquitted accused 2) 3 and  4 of the charge under section 120-B of the Indian Penal  Code, was  of the opinion that the deed of assignment put  forward by  the  accused  No.  I in his  defence  was  a  false  and fabricated  document and the ,said document along  with  its accompaniments was 883 forged  or  was  got  forged by or  with  the  knowledge  or connivance of the accused No. 1 and his co-conspirators  and it  was impossible to believe that this  conspiracy  carried out  with  such meticulous care could be the  work  of  only accused  No.  1.  There was no evidence  on  the  record  to warrant  any inference that the accused No. I was acting  in the matter in collaboration with any other  ’co-conspirators and  the  only evidence was in regard to  the  various  acts alleged  to  have  been done by accused 2, 3 and  4  in  the matter of the conspiracy and the furtherance of the  objects thereof  While  considering the question of sentence  to  be passed   on  the  accused  No.  1  who,  in  spite  of   the circumstances aforesaid, was convicted of the offence  under section  120-B  of  the Indian Penal Code,  the  High  Court observed  that  "the conspirators, whoever  they  were,  had shown considerable ingenuity and daring in carrying out  the object  of the conspiracy and that it felt no hesitation  in Coming  to  the  conclusion  that  it  was  not   straitened circumstances or financial difficulties which were the basis of  the conspiracy but it was the greed for money on such  a large  scale  as could never be regarded as  an  extenuating circumstance".  It, therefore, directed that the accused No. I should undergo rigorous imprisonment for 18 months for the offence under section 120-B of the Indian Penal Code. The  application for leave to appeal to this Court filed  by accused  No. 1 was rejected by the High Court.  The  accused No.  1 thereupon applied for and obtained special  leave  to appeal against the decision of the High Court.  The  special

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leave was, however, limited to the question of law,  whether the  conviction under section 120-B is maintainable in  view of  the  fact that the other alleged conspirators  had  been acquitted. The charge as framed under section 120-B of the Indian Penal Code  was levelled against 4 named individuals, the  accused Nos.  1)  2, 3 and 4. It was not a charge against  them  and other  persons unknown with the result that if accused 2,  3 and  4  were acquitted of that charge, there  remained  only accused No. 1 and 112 884 the  question,  therefore,  arises  for  our   consideration whether, under the circumstances, the accused No. I could be convicted  of the offence under section 120-B of the  Indian Penal Code. Criminal conspiracy has been defined in section 120-A of the Indian Penal Code:-"When two or more persons agree to do  or cause  to be done (i) an illegal act, or (ii) an  act  which is,  not  illegal  by illegal means, such  an  agreement  is designated  a  criminal conspiracy".  By the  terms  of  the definition itself there ought to be two or more persons  who must be parties to such an agreement and it is trite to  say that  one person alone can never be held guilty of  criminal conspiracy  for the simple reason that one  cannot  conspire with  oneself.   If,  therefore, 4  named  individuals  were charged with having committed the offence under section 120- B of the Indian Penal Code, and if three out of these 4 were acquitted of the charge, the remaining accused, who was  the accused  No.  1 in the case before us, could never  be  held guilty of the offence of criminal conspiracy. If authority for the above proposition were needed, it is to be  found  in  Archbold’s Criminal  Pleading,  Evidence  and Practice, 33rd edition, page 201, paragraph 361:- "Where   several   prisoners  are  included  in   the   same indictment,  the  jury may find one guilty  and  acquit  the others,  and vice versa.  But if several are indicted for  a riot,  and  the jury acquit all but two,  they  must  acquit those two also, unless it is charged in the indictment,  and proved,  that  they committed the riot  together  with  some other person not tried upon that indictment. 2 Hawk. c.  47. s. 8. And, if upon an indictment for a conspiracy, the  jury acquit all the prisoners but one, they must acquit that  one also,  unless it is charged in the indictment,  and  proved, that he conspired with some other person not tried upon that indictment. 2 Hawk. c. 47. s. 8; 3 Chit.  Cr.  L., (2nd ed.) 1141;  R.  v. Thompson, 16 Q.B.D. 832; R.  v.  Manning,  12. Q.B.D. 241; R. v. Plummer [1902] 2 K.B. 339". The King v. Plummer ([1902] 2 K.B. 339) which is 885 cited in support of this proposition was a case in which, on a  trial of indictment charging three persona  jointly  with conspiring  together,  one person had pleaded guilty  and  a judgment  passed  against  him,  and  the  other  two   were acquitted.   It was held -that the judgment  passed  against one  who  had pleaded guilty was bad and  could  not  stand. Lord Justice Wright observed at page 343:- "There  is  much  authority  to  the  effect  that,  if  the appellant   had  pleaded  not  guilty  to  the   charge   of conspiracy,  and the trial of all three defendants  together had  proceeded  on  that charge, and  had  resulted  in  the conviction  of the appellant and the acquittal of  the  only alleged co-conspirators, no judgment could have been  passed on  the  appellant,  because  the  verdict  must  have  been regarded  as repugnant in finding that there was a  criminal

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agreement.  between  the appellant and the others  and  none between  them  and him: see Harrison v.  Errington  (Popham, 202),  where upon an indictment of three for riot  two  were found  not guilty and one guilty, and upon error brought  it was held a "void verdict", and said to be "like to the  case in 11 Hen. 4, c. 2, conspiracy against two, and only one  of them  is  found  guilty, it is void, for  one  alone  cannot conspire"." Lord  Justice  Bruce at page 347 quoted  with  approval  the statement in the Chitty’s Criminal Law, 2nd ed., Vol.   III, page 1141:- "And  it is holden that if all the defendants  mentioned  in the  indictment,  except one, are acquitted, and it  is  not stated  as  a conspiracy with certain persons  unknown,  the conviction  of the single defendant will be invalid, and  no judgment can be passed upon him". The  following observations made by Lord Justice  Bruce  are apposite in the context before us:- "The  point of the passage turns upon the circumstance  that the  defendants are included in the same indictment,  and  I think it logically follows from the nature of the offence of conspiracy  that, where two or more persons are  charged  in the  same indictment with conspiracy with  another, and  the indictment 886 contains  no charge of their conspiring with  other  persons not  named  in the indictment, then, if all but one  of  the persons  named  in the indictment are  acquitted,  no  valid judgment  can  be  passed upon  the  one  remaining  person, whether  he has been convicted by the verdict of a  jury  or upon   his  own  confession,  because,  as  the  record   of conviction  can  only  be  made  up  in  the  terms  of  the indictment,  it would be inconsistent and contradictory  and so bad on its face.  The gist of the crime of conspiracy  is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy". This  position  has also been accepted in India.   In  Gulab Singh  v.  The Emperor (A.I.R. 1916 All. 141)  Justice  Knox followed  the case of The King v. Plummer, supra,  and  held that  "it  is necessary in a prosecution for  conspiracy  to prove  that there were two or more persons agreeing for  the purpose  of  conspiracy"  and that "there  could  not  be  a conspiracy of one". To similar effect was the judgment in King-Emperor v.  Osman Sardar (A.I.R. 1924 Cal. 809) where Chief Justice  Sanderson observed  that "the gist of an offence under  section  120-B was  an alleged agreement between the two accused  and  when the  jury  found  that one of them was not a  party  to  the agreement and acquitted him of that charge, it followed as a matter  of  course  that  the other  accused  could  not  be convicted  of that charge.  The assent of both of  them  was necessary to constitute the agreement which was the basis of the charge". Ratanlal  in  his  Law of Crimes, 18th ed.,  page  270,  has summarised  the  position as it emerges from the  above  two cases in the manner following:- "Where,  therefore, three persons were charged  with  having entered  into a conspiracy, and two of them were  acquitted, the  third  person  could not  be  convicted  of  conspiracy whether the conviction be upon the verdict of a jury or upon his own confession". The position in law is, therefore, clear that on the  charge as  it was framed against the accused Nos. 1, 2 3 and  4  in this case, the accused No. I could not 887

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be  convicted  of  the offence under section  120-B  of  the Indian  Penal Code when his alleged co-conspirators  accused 2, 3 and 4 were acquitted of that offence. In our opinion, therefore, the conviction of the accused No. I of the charge under section 120-B of the Indian Penal Code was clearly illegal.  The appeal of the accused No. 1  will, therefore,  be  allowed to the extent  that  his  conviction under  section  120-B  of  the Indian  Penal  Code  and  the sentence  of rigorous imprisonment of 18 months  awarded  to him  as  the result thereof would be quashed.   We  are  not concerned  here with the conviction of the accused No  I  of the  offences  under section 471 read with section  465  and also  his  conviction for each of the three  offences  under section  420  of the Indian Penal Code  and  the  concurrent sentences  of rigorous imprisonment for one year in  respect of  each  of  them passed by the lower Courts  upon  him  in regard to the same.  These convictions and sentences will of course stand.