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CASE NO.: Appeal (crl.)  744 of 2008

PETITIONER: YOGESH @ SACHIN JAGDISH JOSHI

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 28/04/2008

BENCH: S. B. SINHA & D.K. JAIN

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.  744           OF 2008 Arising Out of S.L.P. (Criminal) No.5514 of 2007 WITH CRIMINAL APPEAL NO. 745         OF 2008 [Arising out of S.L.P. (Criminal) No.5515 of 2007]

D.K. JAIN, J.:

Leave granted. 2.      These two appeals are directed against orders dated 23rd  June, 2006 and 19th September, 2006 passed by the High  Court of Judicature at Bombay in Criminal Revision  Application No. 288 of 2005 and in Criminal Writ Petition  No.1884 of 2006 respectively.  By the first order, the High  Court has repelled the challenge made to order dated 23rd  March, 2005, in Criminal Appeal No.83 of 2004, whereby the  Sessions Judge, Satara had affirmed the order passed by the  Juvenile Justice Board, rejecting the application filed by the  appellant under Section 227 of the Code of Criminal  Procedure, 1973 (for short "the Code") for discharge.  By the  latter order, another Single Judge of the High Court has  dismissed the writ petition preferred by the appellant, seeking  quashing of order dated 23rd March, 2005.   3.      The facts giving rise to the present appeals lie in a  narrow compass and centre around a criminal conspiracy,  allegedly hatched by the family members of the appellant to  murder the deceased, Kunal.  The case of the prosecution as  per the charge-sheet is that in the month of March 1999,  deceased Kunal organised an entertainment show, sponsored  by the father of the appellant.  During the event, the deceased  was introduced to the sister of the appellant, Hema. The  acquaintance blossomed into love between the two.  Fearing  that there may be opposition to their close relationship from  their family members, they eloped and got married on 29th  May, 2000.  Appellant’s father lodged a complaint alleging that  the deceased had kidnapped his daughter. The complainant,  namely, the father of the deceased, also reported the matter to  the Pune Police. 4.      Sometime in June, 2000, Kunal contacted his father and  informed him that he was at Gauhati with Hema.  Thereupon,  the complainant and his wife brought Kunal and Hema to  Mumbai.  On persuasion by the complainant and his wife,  Hema agreed to return and stay with her parents and the  marriage between Kunal and Hema is stated to have been

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annulled.  In December, the complainant filed complaints with  the S.P., Satara and the Additional Commissioner of Police,  Pune against the father of the appellant alleging that he had  abused him over the telephone.  The complainant also alleged  that even thereafter, threatening calls were made by the  appellant, his sister, Hema and father.  However, the things  seem to have settled down with the intervention of the  Advocate of the complainant.   5.      Thereafter, Kunal was engaged to another girl and the  wedding was scheduled for 30th November, 2001.  On 21st  April, 2001, the deceased (Kunal) left Panchgani (where he was  living with the parents) for Mahabaleshwar in his maruti car.  At about 8:30 p.m., a taxi-driver informed the complainant  that Kunal was lying in a pool of blood on Mahabaleshwar  road. The complainant rushed to the spot and took his son in  an injured condition to the hospital where he was declared  brought dead. The complainant lodged an F.I.R at  Mahabaleshwar Police Station against unknown persons and  an offence was registered under Section 302 of the IPC.   However, on the next day, the complainant levelled allegation  that since marriage of Kunal had been fixed with another girl,  the appellant and his family members had developed a grudge  and had, therefore, hatched a conspiracy with co-accused  Umesh, Suresh, Bhavarlal Sharma, Captain Sharma to  murder Kunal.  6.      On completion of investigation, charge-sheet was filed  against the appellant before the Juvenile Court, Satara, being  below 18 years of age, and against fifteen other persons, which  included his father (A-1), mother (A-2), sister (A-4), a family  friend (A-11), manager of his father (A-12), in Sessions Court,  Satara.    All of them have been arraigned as members to the  conspiracy to murder Kunal.  The appellant, herein, and  accused A-1, A-2, A-4 to A-7, A-11 and A-12 have been  prosecuted for offences under Section 302 and 120B of the  Indian Penal Code, 1860 (for short "the I.P.C."), whereas  accused A-7 to A-10 and A-13 to A-16 have been prosecuted  for offences under Section 302 read with Section 120B and  under the Arms Act. 7.      The appellant filed an application for discharge before the  Juvenile Justice Board, under Section 227 of the Code.  The  Juvenile Justice Board by order dated 1st October, 2004,  rejected the said application. Being aggrieved by the said  order, the appellant preferred a criminal appeal before the  Sessions Judge, Satara.  As noted above, the said appeal was  dismissed vide order dated 23rd March, 2005.  Still aggrieved,  the appellant moved a revision application before the High  Court.  Vide order dated 23rd June, 2006, the High Court  dismissed the criminal revision. 8.      It appears that the mother (A-2), sister (A-4), a family  friend (A-11) and the manager of appellant’s father (A-12) had  also moved applications under Section 227 of the Code before  the Sessions Judge, Satara for discharge, which were  dismissed by virtue of orders dated 16th January, 2006 and 7th  October, 2003.  Both these orders were challenged by them by  means of two Criminal Writ Petitions (Nos.1283 and 1284 of  2006).  Both the petitions were allowed by the then Chief  Justice of the High Court vide a common order dated 7th July,  2006.  Inter-alia, observing that the circumstances highlighted  by the prosecution, even if accepted in entirety, only created a  suspicion of motive, these were not sufficient to make out a  case for conviction of the accused and some suspicion or  motive cannot serve as a sufficient ground for framing of  charge against them. Accordingly, all the four  accused/petitioners were discharged. 9.      Emboldened by the said order, on 4th August, 2006, the

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appellant filed a Criminal Writ Petition (No.1884 of 2006)  under Article 227 of the Constitution read with Section 482 of  the Code for quashing of aforenoted order dated 23rd March,  2005, passed by the Sessions Judge, Satara and for discharge  of the charges framed under Section 302 read with Section  120B of the I.P.C.  Expressing surprise over the fact that this  petition had been filed though the order impugned in the  petition stood confirmed on dismissal of criminal revision on  23rd June, 2006, the learned Judge rejected the plea of the  appellant that in the light of order dated 7th July, 2006, in the  case of co-accused, by reason of parity, he was also entitled to  be discharged.  Inter-alia, observing that earlier order dated  23rd June, 2006 in the case of the appellant, which was  certainly relevant for deciding the Criminal Writ Petitions  No.1283 & 1284 of 2006, had not been noticed in order dated  7th July, 2006 (by the Chief Justice), vide order dated 19th  September, 2006, the learned Judge dismissed the petition.   As noted above, both the orders, dated 23rd June, 2006 and  19th September, 2006 are challenged in these two appeals. 10.     At this juncture, two other significant subsequent  developments deserve to be noted.  In the first place, a Special  Leave Petition, preferred by the State against order of the High  Court dated 7th July, 2006, discharging accused Nos.2, 4, 11  & 12, was dismissed on 30th April, 2007.  Secondly, relying on  order dated 7th July, 2006, the father (A-1) of the appellant,  termed as the main accused in the charge-sheet, filed an  application before the Sessions Judge for discharge from all  the charges.  Taking note of the said order passed by the High  Court, and inter-alia, observing that apart from the fact that  the alleged threats are vague and are inadequate to connect  the said accused with the crime, vide order dated 14th May,  2007, the Sessions Judge came to the conclusion that there  was absolutely no material on the basis whereof a reasonable  likelihood of the said accused being convicted could be  predicted.  Accordingly, he has discharged the said accused.   Thus, as on date, the father (A-1), the mother (A-2), the sister  (A-4) of the appellant and his two other associates (A-11 & A- 12) stand discharged of the offences for which they were  charged, namely, Sections 302 and 120B of I.P.C. 11.     Mr. Ravi Shanker Prasad, learned senior counsel  appearing for the appellant, submitted that in the charge- sheet there is no overt act attributed to the appellant  regarding actual murder and the threats allegedly given by his  family members and friends to the family of the deceased are  not sufficient to infer a criminal conspiracy, particularly when,  the disputes between the two families had already been  compromised much prior to the incident. Learned counsel  submitted that accepting the prosecution case as it is, there is  absolutely no material on record to frame a charge against the  appellant for offences under Sections 302 and Section 120B of  the I.P.C.  It was also urged that other members of the family,  namely, the mother and sister of the appellant along with two  other accused having been discharged by the High Court and  similarly the father of the appellant having been discharged by  the Sessions Judge, there was no sufficient ground to proceed  against the appellant for the said offences.  In support of the  proposition that a mere suspicion is not sufficient to hold that  there is sufficient ground to proceed against the accused,  learned counsel placed reliance on the decision of this Court  in Union of India Vs. Prafulla Kumar Samal & Anr.    12.     Mr. Ravindra Keshavrao Adsure, learned counsel  appearing for the State, on the other hand, submitted that  there is ample material on record to show a strong motive for  commission of crime, namely, Kunal’s proposal to get married  to another girl after an affair with Hema (A-4), which was

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obviously, not liked by the appellant and his family members.   It was thus, pleaded that the High Court was justified in  dismissing appellant’s petitions for discharge. 13.     Before adverting to the rival submissions, we may briefly  notice the scope and ambit of powers of the Trial Judge under  Section 227 of the Code. 14.     Chapter XVIII of the Code lays down the procedure for  trial before the Court of Sessions, pursuant to an order of  commitment under Section 209 of the Code.  Section 227  contemplates the circumstances whereunder there could be a  discharge of an accused at a stage anterior in point of time to  framing of charge under Section 228.  It provides that upon  consideration of the record of the case, the documents  submitted with the police report and after hearing the accused  and the prosecution, the Court is expected, nay bound to  decide whether there is "sufficient ground" to proceed against  the accused and as a consequence thereof either discharge the  accused or proceed to frame charge against him. 15.     It is trite that the words "not sufficient ground for  proceeding against the accused" appearing in the Section  postulate exercise of judicial mind on the part of the Judge to  the facts of the case in order to determine whether a case for  trial has been made out by the prosecution.  However, in  assessing this fact, the Judge has the power to sift and weigh  the material for the limited purpose of finding out whether or  not a prima facie case against the accused has been made out.   The test to determine a prima facie case depends upon the  facts of each case and in this regard it is neither feasible nor  desirable to lay down a rule of universal application. By and  large, however, if two views are equally possible and the Judge  is satisfied that the evidence produced before him gives rise to  suspicion only as distinguished from grave suspicion, he will  be fully within his right to discharge the accused.  At this  stage, he is not to see as to whether the trial will end in  conviction or not.  The broad test to be applied is whether the  materials on record, if unrebutted, makes a conviction  reasonably possible.  [See: State of Bihar Vs. Ramesh  Singh  and Prafulla Kumar Samal (supra)] 16.     In the light of the aforenoted principles, we may now  consider whether or not in the present case the High Court  was justified in declining to discharge the appellant.  However,  before adverting to the circumstances, relied upon by the  prosecution in support of its primary charge that a conspiracy  had been hatched to eliminate Kunal, the essential features of  the offence of conspiracy need to be noticed 17.     Section 120A of I.P.C. defines criminal conspiracy.  The  section reads as under: "120A. Definition of criminal  conspiracy.\027When two or more persons  agree to do, or cause to be done,\027 (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. Explanation.\027It is immaterial whether  the illegal act is the ultimate object of  such agreement, or is merely incidental  to that object."

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Section 120B of I.P.C. provides for punishment for an  offence of criminal conspiracy.   18.     The basic ingredients of the offence of criminal  conspiracy are: (i) an agreement between two or more persons;  (ii) the agreement must relate to doing or causing to be done  either (a) an illegal act; or (b) an act which is not illegal in itself  but is done by illegal means.  It is, therefore, plain that  meeting of minds of two or more persons for doing or causing  to be done an illegal act or an act by illegal means is sine qua  non of criminal conspiracy.  Yet, as observed by this Court in  Shivnarayan Laxminarayan Joshi & Ors. Vs. State of  Maharashtra , a conspiracy is always hatched in secrecy and  it is impossible to adduce direct evidence of the common  intention of the conspirators.  Therefore, the meeting of minds  of the conspirators can be inferred from the circumstances  proved by the prosecution, if such inference is possible. 19.     In Mohammad Usman Mohammad Hussain Maniyar  & Ors. Vs. State of Maharashtra , it was observed that for  an offence under Section 120B, the prosecution need not  necessarily prove that the perpetrators expressly agree to do  and/or cause to be done the illegal act, the agreement may be  proved by necessary implication. 20.     In Kehar Singh & Ors. Vs. State (Delhi  Administration) , the gist of the offence of the conspiracy has  been brought out succinctly in the following words: "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."

21.     Again in State of Maharashtra & Ors. Vs. Som Nath  Thapa & Ors. , a three-Judge Bench of this Court held 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 any lawful use. 22.     More recently, in State (NCT of Delhi) Vs. Navjot  Sandhu @ Afsan Guru , making exhaustive reference to  several decisions on the point, including in State Through  Superintendent of Police, CBI/SIT Vs. Nalini & Ors. ,  Venkatarama Reddi, J. observed thus: "Mostly, the conspiracies are proved by  the circumstantial evidence, as the  conspiracy is seldom an open affair.  Usually both the existence of the  conspiracy and its objects have to be  inferred from the circumstances and the  conduct of the accused (per Wadhwa, J.  in Nalini’s case at page 516). The well  known rule governing circumstantial  evidence is that each and every  incriminating circumstance must be  clearly established by reliable evidence  and "the circumstances proved must form  a chain of events from which the only

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irresistible conclusion about the guilt of  the accused can be safely drawn and no  other hypothesis against the guilt is  possible." (Tanviben Pankajkumar case ,  SCC page 185, para 45).  G.N. Ray, J. in  Tanibeert Pankajkumar observed that this  Court should not allow the suspicion to  take the place of legal proof."

23.     Thus, it is manifest that the meeting of minds of two or  more persons for doing an illegal act or an act by illegal means  is sine qua non of the criminal conspiracy but it may not be  possible to prove the agreement between them by direct proof.   Nevertheless, existence of the conspiracy and its objective can  be inferred from the surrounding circumstances and the  conduct of the accused.  But the incriminating circumstances  must form a chain of events from which a conclusion about  the guilt of the accused could be drawn.  It is well settled that  an offence of conspiracy is a substantive offence and renders  the mere agreement to commit an offence punishable even if  an offence does not take place pursuant to the illegal  agreement.  24.     Bearing in mind the essential features of the offence of  criminal conspiracy, enumerated above, we may advert to the  facts of the instant case. The relevant portion of the charge- sheet filed against all the accused reads as follows: "\005Though son of the complainant Kunal  Parihar got married with accused No.4  Hema Joshi, his family again arranged for  another marriage with one Meenal of  Baroda on 24.2.2001.  Engagement  ceremony took place and date of marriage  was fixed as 30.11.2001.  this fact came  to the knowledge of the accused  No.1,2,3,4 & 5 and 11 & 12.  Therefore,  in order to teach a lesson to the  complainant they hatch conspiracy to kill  his only son, Kunal.  Accordingly accused  No.1 contacted accused No.6 Suresh  Jhajara and further informed him the  complainant and his son should be  taught a lesson as Kunal Parihar  betrayed him.  Hence should be taught a  lesson and further asked to carry out  future plan. Accused No.6, contacted accused No.7  and included him in the aforesaid  conspiracy.  Accused No.1 to 4, contacted  accused No.16, through accused No.6  and 7, accused No.16 pending is a  notorious criminal.  Criminal cases are  pending against him in the District Court  of Pune.  In the offence regarding body,  accused No.7 contacted him through  witnesses Atul Lohar in order to carry out  the aforesaid plan.  Accused No.1 gave  Rs.80,000/- to accused No.7 via accused  No.6.  Accused No.16, in order to cause  hurt to Kunal introduced accused No.8,  9, 10, 13, 14, 15 to accused No.7.   Accused No.7 asked accused No.8, 9, 10,  13, 14, 15 to joint the aforesaid  conspiracy and in order to carry out the  aforesaid conspiracy successfully accused  No.7 purchased one Maruti Car No.MH-

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14 D-3027 from witness Afzal Khan  Ibrahim Khan, resident of Dehu Road  and also Motor Cycle No.MH-14-M-5786.   By using the aforesaid vehicles accused  No.7 to 10 and 13 to 15 have committed  ghastly murder of Kunal.  In order to  carry out the aforesaid conspiracy  successfully accused No.7 has used  revolver, khukri, sickle, sword and iron  bar and supplied it to accused No.8 to 10  and from 13 to 15, by using the aforesaid  weapons the aforesaid persons have  assaulted Kunal Parihar by which he  sustained grave injuries and ultimately  died.  Hence accused No.1, 2, 3, 4, 5, 6,  7, 11 and 12 have charged been under  Sections 302, 120B IPC and accused  No.7, 8, 9, 10, 13, 14, 15 and 16 have  charged u/s 302 read with 120B IPC and  under Arms Act Section 3 and 25."                                                            [Emphasis supplied]

25.     Thus, according to the prosecution version, when  accused, A-1 to A-5, A-11 and A-12 learnt about the marriage  of Kunal with some other girl, they hatched a conspiracy to  teach a lesson to the father of Kunal, the deceased.  In  furtherance thereof, accused A-1 contacted one of the  assassins to kill Kunal.  It is alleged that accused A-1 to A-4  also contacted accused A-16, a notorious criminal.  In other  words, the gravamen of the accusation by the prosecution is  that it is accused A-1 to A-5, A-11 and A-12 who had hatched  the conspiracy; acted in concert to give effect to their plan to  get Kunal murdered and in pursuance of the aforesaid  criminal conspiracy, the other accused facilitated commission  of the said crime.  It is common ground that the case of the  prosecution is based on the circumstantial evidence, namely,  threatening calls from the side of the accused to the  complainant, his family and the earlier relationship between  the deceased and accused No.4.  From the material on record,  it is manifestly clear that it was the family members of the  appellant, one of their employees and a friend who allegedly  had all entered into an agreement to eliminate the deceased.   However, as noted above, accused A-1, A-2, A-4, A-11 and     A-12 already stand discharged from the charges framed  against them under Sections 120B and 302 I.P.C vide orders  dated 7th July, 2006 and 14th May, 2007, passed by the High  Court and the Sessions Judge respectively.  While discharging  the said accused, both the courts have come to the conclusion  that there is no material on record to show that they had  hatched a conspiracy to commit murder of Kunal.  Thus, the  stand of the prosecution to the effect that the parents, sister  and friends of the appellants had entered into a criminal  conspiracy stands rejected by virtue of the said orders of  discharge.  Furthermore, in its order dated 7th July, 2006, the  High Court has opined that the circumstances, relied upon by  the prosecution, even if accepted in its entirety, only create a  suspicion of motive, which is not sufficient to bring home an  offence of murder.  As noted above, State’s petition for special  leave against the said judgment has already been dismissed. 26.     We are, therefore, of the view that in the light of the  subsequent events, namely, the orders of the High Court dated  7th July, 2006 in Criminal Writ Petitions No. 1283 & 1284 of  2006, discharging appellant’s mother, sister and two close  associates, accused Nos.2, 4, 11 and 12 respectively; order  dated 30th April, 2007 passed by this Court dismissing the

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Special Leave Petition preferred by the State against order  dated 7th July, 2006 and order dated 14th May, 2007 passed  by the Sessions Judge, Satara, discharging the father (A-1) of  the appellant, stated to be the mastermind behind the entire  conspiracy, for offences under Sections 120B and 302 I.P.C.,  on same set of circumstances and accusations, no sufficient  ground survives to proceed against the appellant for the  aforementioned offences. 27.     For the reasons aforesaid, we are constrained to allow the  appeals.  Consequently, the impugned orders are set aside and  the appellant is discharged from the charges levelled against  him in the charge-sheet.