the documents in question were marked through D.W.1 on 23.10.2009 without any objection from the respondent-plaintiff and hence the said documents were admitted in evidence. When once the documents were so marked, it is not permissible for the same Court to impound the said documents as per the provisions of Section 36 of the Indian Stamp Act (for brevity "the Act"). ? Whenever documents are admitted in evidence, the procedure prescribed under Order 13 Rule 4 C.P.C. has to be followed. The said provision postulates that on every document admitted in evidence, particulars, viz., the number and title of the suit, name of the person producing the document, the date on which it was produced, and a statement of its having been so admitted shall be mentioned and the endorsement shall be signed or initialled by the Judge. Therefore, one of the essential requirements under the said provision is that the document should contain a specific statement that it has been admitted in evidence and the endorsement shall be signed or initialled by the Judge.- though the documents were marked as above, it cannot be said that the Court had applied the judicial mind and admitted the documents in evidence. Further, even before conclusion of the evidence on behalf of the petitioners-defendants, an objection as to the admissibility of the documents was taken by the respondent-plaintiff.

THE HON'BLE SRI JUSTICE NOUSHAD ALI      

CIVIL REVISION PETITION No.3989 of 2010  

04-10-2012

Athapuram Raghuramaiah and another.  

Dyava Ramaiah

Counsel for the petitioners : Sri P.V. Narayana Rao

Counsel for Respondent : Sri V.V. Ramana Rao

<Gist:

>Head Note:

? Cases referred:
1. AIR 2007 SC 637
2. 2011 (2) ALD 71
3. AnWR 1964 AP 468  
4. 2004(3) ALD 187

ORDER :

This Civil Revision Petition is directed against the order dated 02.03.2010 in
O.S.No.43 of 2008 passed by the Junior Civil Judge, Vemulavada, Karimnagar
District, wherein it has been held that Exs.B-1 to B-3 documents marked through
D.W.1 were deficiently stamped and accordingly directed the concerned party to
take steps for impounding the documents either before the Court or before the
concerned authorities.
2.  The respondent herein filed suit O.S.No.43 of 2008 on the file of the Junior
Civil Judge, Vemulavada, Karimnagar District, impleading the petitioners herein
as defendants seeking a decree for perpetual injunction restraining them from
entering into and interfering with the peaceful possession and enjoyment of the
suit schedule property measuring Ac.0.04 1/2 gts of land in Sy.No.43/A situated
at Kurikyala Village, Gangadhar Mandal, Karimnagar District. According to the
plaint averments, the respondent-plaintiff is the absolute owner and is in
exclusive possession of the said property. His name is also reflected in the
revenue records, including the Pattadar Pass Book. The petitioners-defendants
are strangers to the said land and they have no right or interest whatsoever
over the said property. The respondent-plaintiff's possession was sought to be
disturbed by the petitioners-defendants because he refused to sell the land to
them.
3.  It appears that the 1st petitioner-defendant No.1 has not chosen to file
written statement. The 2nd petitioner-defendant No.2 filed written statement,
inter alia, stating that the respondent-plaintiff entered into an agreement of
sale of the suit land with the 1st petitioner-defendant No.1, who is her
husband, and on payment of the total sale consideration, possession of the suit
schedule property was delivered to the 1st petitioner-defendant No.1. Thereupon
he constructed a house after obtaining necessary permission from the Gram
Panchayat and thus the petitioners-defendants acquired the right over the suit
schedule property and are in enjoyment of the same.
4. After the evidence on behalf of the respondent-plaintiff was closed, the 1st
petitioner-defendant No.1 was examined as D.W.1 on 23.10.2009 and Exs.B-1 to B-3  
documents, which are agreements of sale dated 20.10.2001, 1.3.2002 and 
23.7.2003, respectively, were marked through him. Later, during the course of
examination of the 2nd petitioner-defendant No.2 as DW.2, an objection was taken
regarding the admissibility of the said documents on the ground that they were
deficiently stamped. Considering the said objection, the Court below found that
the said documents are deficiently stamped and accordingly passed the impugned
order dated 2.3.2010 with a direction to the concerned party to take steps for
impounding the documents either before the Court or before the concerned
authorities.
5. Heard Sri P.V. Narayana Rao, learned counsel appearing for the petitioners-
defendants as well as Sri V.V. Ramana Rao, learned counsel appearing for the
respondent-plaintiff.
6. Sri P.V. Narayana Rao, learned counsel for the petitioners-defendants
contends that the impugned order is without jurisdiction. The learned counsel
submits that the documents in question were marked through D.W.1 on 23.10.2009  
without any objection from the respondent-plaintiff and hence the said documents
were admitted in evidence. When once the documents were so marked, it is not 
permissible for the same Court to impound the said documents as per the
provisions of Section 36 of the Indian Stamp Act (for brevity "the Act").
According to him, the only course left open to the aggrieved party is to raise
the said dispute, if an appeal is preferred against the said order.
7.  The learned counsel placed reliance on a judgment of the Apex Court in
SHYAMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL1 and also a judgment of this Court in          
AKKIREDDI NAGAYAMMA AND ANOTHER v. ADHIKARI APPALANAIDU2 in support of the              
proposition that the Court is not competent to reopen the matter and direct for
impounding of the document.
8. On the other hand, Sri V.V. Ramana Rao, learned counsel for the respondent-
plaintiff submits that the documents in question have not been admitted in
evidence and hence the provisions of Section 36 of the Act have no application
to the facts of the present case. The learned counsel submits that the documents
in question were only marked and mere marking of the documents does not amount
to admission of the same unless that fact is judicially determined by the Court
in terms of Order 13 Rule 4 C.P.C. He, therefore, submits that the Court below
was competent to impound the documents and, in that view of the matter, the
impugned order is unassailable.
9. I have considered the aforesaid contentions and perused the material placed
before this Court.
10.  There cannot be any controversy with regard to the principle laid down by
the Apex Court in SHYAMAL KUMAR ROY's case (1 supra) and this Court in AKKIREDDI      
NAGAYAMMA (2 supra) to the effect that Section 36 of the Act would operate after
a document is admitted in evidence. But, the question that falls for
consideration in this case is whether Exs.B-1 to B-3 were admitted in evidence
so as to attract the provisions of Section 36 of the Act.
11.  The endorsements made on the documents show as follows:  
"Ex.B-1 by D.W.1
 Dt.23.10.2009
 in O.S.No.43 of 2008
                   Sd/- 23.10.2009
                   J.C.J."

The said endorsements bear the signatures of the learned Judge. Whenever 
documents are admitted in evidence, the procedure prescribed under Order 13 Rule
4 C.P.C. has to be followed. The said provision postulates that on every
document admitted in evidence, particulars, viz., the number and title of the
suit, name of the person producing the document, the date on which it was
produced, and a statement of its having been so admitted shall be mentioned and
the endorsement shall be signed or initialled by the Judge. Therefore, one of
the essential requirements under the said provision is that the document should
contain a specific statement that it has been admitted in evidence and the
endorsement shall be signed or initialled by the Judge.
12.  A bare perusal of the endorsement of the learned Judge, in the instant
case, does not show any statement to the effect that the documents have been
admitted in evidence.
13.  Similar question was considered by this Court in GANTA VEERAMALLU AND    
OTHERS v. TALLAPPALLU KOMARAIAH3 and VEMI REDDY KOTA REDDY v. VEMI REDDY                  
PRABHAKAR REDDY4, wherein it was held that the words "admitted in evidence" as    
appearing in Section 36 of the Indian Stamp Act mean "admitted after judicial
consideration of the circumstances relating to its admissibility". There shall
be judicial determination of the question whether it can be admitted in evidence
or not for want of stamp on the day when the document was shown to the witnesses 
and marked. Merely because a document was marked or shown to the witness would    
not mean that the objection raised by the opposite party was rejected by a
judicial determination.
14.  In the instant case also, though the documents were marked as above, it
cannot be said that the Court had applied the judicial mind and admitted the
documents in evidence. Further, even before conclusion of the evidence on behalf
of the petitioners-defendants, an objection as to the admissibility of the
documents was taken by the respondent-plaintiff.
15.  Hence, in the facts and circumstances of the case, it must be held that the
matter had not reached the stage for invoking the provisions Section 36 of the
Act. In that view of the matter, the Court below has rightly held that the
documents are liable to be impounded for appropriate steps to be taken by the
concerned party.
16.  For the foregoing reasons, I do not find any illegality or material
irregularity in the impugned order warranting interference by this Court.
17.  This Civil Revision Petition is devoid of merits and it is accordingly
dismissed. As a sequel, interim stay granted by this Court on 3.9.2010 stands
vacated and C.R.P.M.P.No.5312 of 2010 is dismissed. No order as to costs.
________________________  
JUSTICE NOUSHAD ALI    
04.10.2012.
NOTE: L.R. Copy be marked.

Grieved by the order of rejection of prayer for bail for offences punishable under Sections 302, 201 and 120-B of the Indian Penal Code, 1860 (for short ‘the IPC’) and under Sections 25(1)(b) and 27 of the Arms Act, 1959 in Criminal Misc. Application No. 9576 of 2011 dated 26.7.2011 by the High Court of Gujarat at Ahmedabad, the appellant, accused No. 4, has preferred the present appeal by special leave under Article 136 of the Constitution.= with regard to the investigation conducted by the investigating agency. It has called it perfunctory. After ascribing reasons, it has directed the C.B.I. to expeditiously undertake further investigation. We may hasten to add that the legal propriety of the said order is not the subject matter of challenge in the present appeal. It has only been brought to our notice that C.B.I. has been directed to conduct a comprehensive investigation. Needless to state, it is open to the appellant to challenge the legal substantiality of the said order. But for the present, suffice it to say, as there is a direction for fresh investigation, it should be inapposite to enlarge the appellant on bail. We may add that in case the order for reinvestigation is annulled by this Court, it would be open for the appellant to file a fresh application for bail before the competent Court. If the order of the High Court withstands scrutiny, after the C.B.I. submits its report, liberty is granted to the appellant to move the appropriate court for grant of bail. We may clarify that though we have narrated the facts, adverted to parameters for grant of bail under Section 439 of the Code, dwelled upon the view of this Court relating to criminal conspiracy and noted the submissions of the learned counsel for the parties, we have not expressed our final opinion on entitlement of the appellant to be released on bail or not because of the subsequent development i.e. direction by the High Court for comprehensive investigation by the C.B.I. 27. The appeal, is accordingly, disposed of.

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1649  OF 2012
             (Arising out of S.L.P. (Criminal) No. 2450 of 2012


Pratapbhai Hamirbhai Solanki                    ... Appellant
                                   Versus
State of Gujarat and another                     ...Respondents



                               J U D G M E N T

Dipak Misra, J.


      Leave granted.

2.    Grieved by the order of rejection of  prayer  for  bail  for  offences
punishable under Sections 302, 201 and 120-B of the Indian Penal Code,  1860
(for short ‘the IPC’) and under Sections 25(1)(b) and 27 of  the  Arms  Act,
1959 in Criminal Misc. Application No. 9576 of 2011 dated 26.7.2011  by  the
High Court of Gujarat at  Ahmedabad,  the  appellant,  accused  No.  4,  has
preferred the present appeal by special  leave  under  Article  136  of  the
Constitution.

3.    The  appellant  was  arraigned  as  an  accused  in  crime/F.I.R.  No.
163/2010 for the aforesaid offences and the investigation was  conducted  by
the CID (Crime), Ahmedabad.  The prosecution case, in brief, is that an  FIR
was registered against two persons on 20th of  July,  2010  about  8.40  pm.
They came on a Bajaj motorcycle having registration  No.  GJ-1-DQ-2482.   At
the corner of “Satyamev Complex-I”, Opposite  Gujarat  High  Court  at  S.G.
Highway, they fired at one Amitbhai Bhikhabhai  Jethwa  from  their  country
made revolver on the left part of his back and caused injuries to  which  he
succumbed and they immediately disappeared from  the  scene  of  occurrence.
After  the  criminal  law  was  set  in  motion,  the  investigating  agency
commenced  investigation  and  after  completion,  placed  the  charge-sheet
before the competent court.

4.    During pendency of investigation, an application was filed before  the
learned Session Judge for grant of bail contending,  inter  alia,  that  the
name of the appellant was not found in the FIR; that he had  no  nexus  with
the commission of crime; that the  case  of  the  prosecution  that  he  had
conspired for murder of the deceased who was an RTI activist was  absolutely
incredulous inasmuch as the allegations against the appellant  were  totally
vague and, in fact, had been deliberately made to  destroy  his  unblemished
public image, for he had been in public life for so  many  years;  that  the
material brought on record in no way implicated the appellant in  the  crime
in question and, therefore, he was entitled  to  bail.   The  learned  trial
Judge, analysing the material on record, declined to enlarge  the  appellant
on bail.  Be it noted, after the charge-sheet was filed  the  doors  of  the
learned trial Judge were again knocked at but the same  did  not  meet  with
success.

5.    As the factual narration would exposit,  the  accused-appellant  filed
Criminal Miscellaneous Application No. 2847 on 30th March, 2011  before  the
High Court for grant of bail, but the same was withdrawn.   Thereafter,  the
appellant  filed  Criminal  Misc.  Application  No.  7505  of  2011  seeking
temporary bail on the ground that his wife had suffered  from  acute  gynaec
problem and she needed to undergo surgery for  Fibroid  in  the  Uterus  and
regard being had to the said assertion  the  High  Court  granted  temporary
bail for a period of 21 days.

6.    As is manifest from the material brought  on  record,  the  informant,
after completing his duty about 8.00 p.m., was returning to his house  on  a
motorcycle.  He went to “Satyamev Complex”  with  his  friend,  Bhupatisinh,
for the purpose of having tea and then they heard a gun shot sound and  they
rushed to the place where the firing took place.  They found that one  Bajaj
motorcycle No. GJ-1-DQ-2482, one country made pistol and a plastic bag  were
lying on the road.   They  also  saw  a  white  colour  Maruti  Gypsy.   The
informant, who was a constable,  informed  his  superior  inspector  on  his
mobile phone and gathered information from the  public  around.   They  were
informed that two persons after firing drove towards Viswas City Road.   The
emergency ambulance was  called  for  and  the  staff  after  examining  the
injured person declared him dead.  The  advocate  present  there  identified
the deceased to  be  Amitkumar  Jethwa,  an  RTI  activist.   In  course  of
investigation, the appellant was arrested on 7.9.2010.

7.    Thereafter, as  the  factual  matrix  is  uncurtained,  the  appellant
preferred bail application  under  Section  439  of  the  Code  of  Criminal
Procedure, 1973 forming the subject-matter of Crl. Application No.  9576  of
2011.  It was urged before  the  High  Court  that  the  appellant,  for  no
justifiable reasons, had remained in custody since 7.9.2010 and the  charge-
sheet had been filed under Sections 302, 201 and 120-B of the IPC solely  on
the basis of the statement of Abhesinh Kesarsinh Zala,  a  Peon  serving  in
the office of the appellant.  It was also canvassed that there was  no  iota
of material to rope him in the crime and a maladroit effort  had  been  made
to demolish his political career and demolish his social image.

8.    It was further urged that the first application for bail  having  been
withdrawn, there was  no  bar  to  entertain  and  dispose  of  second  bail
application  on  merits  in  favour  of  the  accused-appellant;  that   the
appellant is a childhood friend of accused,  Bahadursinh  Vadher,  a  police
constable, having business of mines and he is engaged  in  the  business  of
mobile towers and had held the post of the  ex-President  of  Kodinar  Nagar
Palika and Vice-President at the time of incident  and  had  been  roped  in
such a crime solely on the base that the accused-Bahadursinh had met him  at
his office in Kodinar where allegedly a conspiracy was hatched to  eliminate
the deceased, which was sans substance; that as far as theory of  conspiracy
is concerned, nothing had been remotely brought on  record  to  justify  the
allegations; and that the charge-sheet had been filed;  and,  therefore,  he
was entitled to be enlarged on bail.  It  was  propounded  that  a  singular
telephonic call from the mobile the voice of which was not  recorded,  could
not form the fulcrum of the prosecution to book the appellant in  the  crime
and further the  case  has  been  fabricated  with  the  sole  intention  to
systematically smother the liberty of a law abiding individual.

9.    The application for bail was resisted by the learned counsel  for  the
prosecution on the ground that the deceased was the President of Gir  Nature
Youth Club, an NGO and also Editor of a magazine “Around the Nature” and  an
active RTI activist.  He had found the appellant to be  involved  in  number
of  illegal  activities  and  had  exposed  him  in  number  of  ways  as  a
consequence of which he had hatched the conspiracy with the  accused  No.  1
which ultimately resulted in hiring of accused No. 2 as  a  contract  killer
on payment of Rs.11 lakhs  to  eliminate  him.   The  learned  counsel  also
contended that there were various call details  and  contacts  made  by  the
accused, particularly, with accused No. 2 who had absconded; that  fake  SIM
cards were provided by the  appellant  to  hide  their  identity;  that  the
appellant had  criminal  antecedents;  that  no  leniency  should  be  shown
despite the plea advanced as regards the social reputation; that the  factum
of conspiracy is quite complex and the prosecution had been able  to  gather
the connecting materials which would go a long way to  show  involvement  of
the appellant and hence, it was not a fit case where  discretion  for  grant
of bail should be exercised.

10.   The learned single Judge, considering the rival  submissions  advanced
at the Bar came to hold that the conspiracy between the accused  No.  4  and
the accused No. 1 was obvious from the number of visits of accused No. 1  to
the office of accused  No.  4;  that  there  was  conversation  between  the
accused No. 4, the appellant herein, and the  sharp-shooter,  a  person  who
had absconded and that itself prima facie  showed  the  involvement  of  the
accused-appellant.  The High Court taking note of all the aspects  including
the gravity of the offence declined to admit the appellant to bail.

11.   We have heard Mr.  Mukul  Rohatgi,  learned  senior  counsel  for  the
appellant, Ms. Hemantika Wahi, learned counsel for the State of Gujarat  and
Ms. Kamini Jaiswal and Mr. Mohit D. Ram, learned counsel for respondent  No.
2.

12.   Mr. Rohatgi, learned senior counsel for the appellant, accused No.  4,
has submitted that the reliance on the statement of the peon  who  had  only
mentioned that accused No. 1 Bahadursinh, was  a  frequent  visitor  to  the
office of the appellant, but he had not been able to hear  any  conversation
because of glass doors, makes the impugned orders sensitively  unsustainable
as such kind of statement does not render any assistance to the  prosecution
case.  He would further  submit  that  the  allegation  that  the  appellant
provided the finance in hiring the  contract  killer  has  no  semblance  of
truth inasmuch as it  is  manifest  from  the  statement  of  Amarsinh,  the
brother of Bahadursinh, that he had given rupees nine lakhs in cash  to  his
brother for purchase of land in Kodinar area and thus, the appellant had  no
involvement with the alleged financing.   It  is  his  submission  that  the
voice in the mobile phone was not recorded and  only  a  singular  call  was
made by the accused No. 2 and such a stray incident cannot even  suggest  in
the remotest manner any kind of conspiracy and, therefore, regard being  had
to the period of incarceration, he should be enlarged on bail.

13.   Ms.  Hemantika  Wahi,  learned  counsel  for  the  State  of  Gujarat,
resisting the application for grant of bail, submitted that  the  conspiracy
is always hatched in secrecy and there  are  series  of  circumstances  from
which the involvement  of  the  accused-appellant  is  evincible  and,  that
apart, the material on  record  would  reveal  that  the  appellant  was  in
constant connection with the  accused  No.  1,  who  was  facing  a  lot  of
disadvantage because  of  the  pro-active  crusade  undertaken  against  his
illegal activities by the deceased, an RTI activist, by filing PILs.  It  is
also urged by her that the deceased had been able to expose the  involvement
of the appellant in many an illegal  operations  and,  therefore,  the  High
Court has correctly declined to entertain the prayer for bail.

14.    Ms. Kamini Jaiswal and Mr. Mohit D.  Ram,  learned  counsel  for  the
respondent No. 2, the father of the deceased, have supported  the  stand  of
the State.

15.   At this juncture, we may refer  with  profit  to  certain  authorities
which lay down the considerations  that  should  weigh  with  the  Court  in
granting bail in non-bailable  offences.   This  Court  in  State  v.  Capt.
Jagjit Singh[1] and Gurcharan Singh v. State (Delhi Admn.)[2] has held  that
the nature and seriousness of the offence; the character  of  the  evidence;
circumstances which are peculiar to the accused;  a  reasonable  possibility
of the presence of the accused not being secured at  the  trial;  reasonable
apprehension of witnesses being tampered with; the larger  interest  of  the
public or the State and other similar factors which may be relevant  in  the
facts and circumstances  of  the  case  are  to  be  considered.   The  said
principles have been reiterated in Jayendra Saraswathi Swamigal v. State  of
T.N.[3]

16.   In Prahlad Singh Bhati v. NCT, Delhi and Another[4],  this  Court  has
culled out the principles to be kept in  mind  while  granting  or  refusing
bail.  In that context, the two-Judge Bench has stated that  while  granting
the bail, the court has to keep in  mind  the  nature  of  accusations,  the
nature of evidence in support thereof, the severity of the punishment  which
conviction will entail, the character, behaviour, means and standing of  the
accused,  circumstances  which  are  peculiar  to  the  accused,  reasonable
possibility  of  securing  the  presence  of  the  accused  at  the   trial,
reasonable apprehension of the witnesses being  tampered  with,  the  larger
interests of the public or State and similar other  considerations.  It  has
also to be kept in mind that for the  purposes  of  granting  the  bail  the
legislature has used the words “reasonable grounds  for  believing”  instead
of “the evidence” which means the court dealing with the grant of  bail  can
only satisfy it as to whether there is a genuine case  against  the  accused
and that the prosecution will be able to produce  prima  facie  evidence  in
support of the charge. It is not  expected,  at  this  stage,  to  have  the
evidence establishing the guilt of the accused beyond reasonable doubt.

17.   In State  of  U.P.  through  C.B.I.  v.  Amarmani  Tripathi[5],  while
emphasizing  on  the  relevant  factors  which  are   to   be   taken   into
consideration, this Court has expressed thus: -

        “While a vague allegation that  the  accused  may  tamper  with  the
        evidence or witnesses may not be a ground to  refuse  bail,  if  the
        accused is of such character that his mere presence at  large  would
        intimidate the witnesses or if there is material  to  show  that  he
        will use his liberty to subvert justice or tamper with the evidence,
        then bail will be refused.”

In the said case, the Bench has also observed as follows: -

        “Therefore, the general rule that this Court  will  not  ordinarily
        interfere in matters relating to bail,  is  subject  to  exceptions
        where  there  are  special  circumstances  and   when   the   basic
        requirements for grant of bail are completely ignored by  the  High
        Court.”


18.   Recently, in Ash Mohammad v. Shiv Raj Singh @ Lalla  Babu  &  Anr.[6],
this Court while dealing with individual liberty and cry of the society  for
justice has opined as under: -
         “It is also to be kept in mind that individual liberty  cannot  be
         accentuated to such an extent or elevated to such a high  pedestal
         which would bring in anarchy or  disorder  in  the  society.   The
         prospect of greater justice requires that  law  and  order  should
         prevail in a civilized milieu.   True  it  is,  there  can  be  no
         arithmetical  formula  for  fixing  the  parameters   in   precise
         exactitude  but  the  adjudication   should   express   not   only
         application of mind but also exercise of jurisdiction on  accepted
         and established norms.  Law and order in  a  society  protect  the
         established precepts and see to it that contagious crimes  do  not
         become epidemic.  In an organized society the concept  of  liberty
         basically requires citizens to be responsible and not  to  disturb
         the  tranquility  and  safety  which  every  well-meaning   person
         desires.”


19.   We are absolutely conscious that liberty is a greatly cherished  value
in the life of an individual, and no one would like to  barter  it  for  all
the tea in China, but it is obligatory on the part  of  court  to  scan  and
scrutinize,  though  briefly,  as  regards  the  prima   facie   case,   the
seriousness and gravity of the crime and the potentiality of the accused  to
tamper with the evidence apart from other aspects before the restriction  on
liberty is lifted on imposition of certain conditions.

20.   The submission of Mr. Rohtagi  is  that  there  is  total  absence  of
material to connect the appellant with the crime  in  question  but  due  to
maladroit endeavour of the prosecution he has been falsely implicated.   The
learned senior counsel would emphatically urge  that  certain  visits  by  a
friend of accused No. 1, a singular telephone call and filing  of  a  public
interest litigation where the appellant is  not  involved  cannot  form  the
foundation of a prima facie case relating to conspiracy.

21.   At this stage, it is useful to recapitulate the view  this  Court  has
expressed  pertaining  to  criminal  conspiracy.  In  Damodar  v.  State  of
Rajasthan[7], a two-Judge Bench after referring to  the  decision  in  Kehar
Singh v. State (Delhi Admn.)[8], State of Maharashtra v.  Somnath  Thapa[9],
has stated thus: -

        “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  of  the  Indian  Penal
        Code.”

22.   In Ram Narayan Popli v. Central  Bureau  of  Investigation[10],  while
dealing with  the  conspiracy  the  majority  opinion  laid  down  that  the
elements of a criminal conspiracy have been stated to be: (a) an  object  to
be accomplished, (b) a plan or scheme embodying  means  to  accomplish  that
object, (c) an agreement  or  understanding  between  two  or  more  of  the
accused persons whereby, they become definitely committed to  cooperate  for
the accomplishment of the object by the means embodied in the agreement,  or
by any effectual means, and  (d)  in  the  jurisdiction  where  the  statute
required an overt act. It has been further opined  that  the  essence  of  a
criminal conspiracy is the unlawful combination and ordinarily  the  offence
is complete when the combination is framed. 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 means.   The  encouragement
and support which co-conspirators give to one another rendering  enterprises
possible which, if left to individual effort, would  have  been  impossible,
furnish the ground for  visiting  conspirators  and  abettors  with  condign
punishment. The conspiracy is held to be continued and  renewed  as  to  all
its members wherever and whenever any  member  of  the  conspiracy  acts  in
furtherance of the common design. The two-Judge  Bench  proceeded  to  state
that for an offence punishable under Section  120-B,  the  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.

23.   In the said  case  it  has  been  highlighted  that  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 by illegal means an act which itself may not  be  illegal.  Therefore,
the essence of criminal conspiracy is an agreement to do an illegal act  and
such  an  agreement  can  be  proved  either  by  direct  evidence   or   by
circumstantial evidence or by both, and it is a matter of common  experience
that direct evidence to prove conspiracy  is  rarely  available.  Therefore,
the circumstances proved before, during and after the occurrence have to  be
considered to decide about the complicity of the accused.

24.   The present factual matrix is required to be tested on  the  aforesaid
touchstone of law.  There is no denial of the fact that the deceased was  an
RTI activist and extremely keen in exposing certain  matters  which  pertain
to illegal mining and many other such arenas.  It is  not  in  dispute  that
the deceased was murdered about 8.30 p.m. on the Public Road  just  opposite
the High Court and near the corner of “Satyamev  Complex-I”  where  situates
the office of Bar Council of Gujarat.  The appellant is a dealer  in  mobile
phones and there is some material on record that he had handed  over  mobile
phones to his friend who is a police constable and owns mines;  and  that  a
call has been  traced  from  the  mobile  of  the  contract  killer  to  the
appellant.  Mr. Rohtagi  would  argue  with  vehemence  that  the  aforesaid
circumstances are  sketchy  and  the  prosecution  has  tried  to  rope  the
appellant in conspiracy basically on the ground that  he  had  provided  the
finance but the said story does collapse like a pack of  cards  inasmuch  as
the accused No. 1 had taken a substantial sum from his brother  towards  his
share in the profit from the family property.   It  is  also  borne  out  on
record that the appellant is an  influential  man  in  the  society  and  he
claims to be a friend of a constable and has urged that as a friend  he  was
visiting his office and nothing has been stated to have been  heard  by  the
office  peon.   It  is  argued  with  immense  emphasis  that  the   sketchy
connection does not make out a prima facie case against  the  appellant  and
further there is no material to infer that he would tamper with evidence  or
would not make himself available for trial.

25.   Ordinarily, we would have proceeded to  express  our  opinion  on  the
basis of analysis of the material available on record but, a  pregnant  one,
after  order  was  reserved,  Ms.  Arora,  learned  counsel  appearing   for
respondent No. 2 filed an order  dated  25.9.2002  passed  by  the  Division
Bench of the High Court of Gujarat in Special Criminal Application No.  1925
of 2010.  On a perusal of the said order,  it  is  luculent  that  the  High
Court after referring to its number of  earlier  orders  and  surveying  the
scenario in entirety has passed the following order:-

           “13.  As discussed in detail in paragraphs 6, 7  and  9  herein,
           investigation into the murder of the petitioner’s son  does  not
           appear to have been carried out in  conformity  with  the  legal
           provisions discussed in paragraph 11 and the  control  exercised
           by one police officer of a very high rank,  all  throughout  and
           even after the orders for further investigation by  this  Court,
           provides sufficient ground to conclude  that  the  investigation
           was controlled and the line of investigation was determined  and
           supervised so as to put to naught the allegations made  and  the
           suspicion raised by the acquaintances and family members of  the
           deceased.  As discussed in detail earlier in  paragraph  9,  the
           investigation would hardly inspire confidence not  only  in  the
           minds of the bereaved and aggrieved  family  members,  but  even
           general public on taking an objective view of  the  matter.   On
           the other hand, the deceased having been an active RTI activist,
           so-many people whose vested interests may have been affected  by
           his applications under the RTI  Act,  could  have  a  motive  to
           contribute  into  his   killing.    Therefore,   a   perfunctory
           investigation on the basis of statements of the accused  persons
           themselves may not unearth the whole truth and meet the ends  of
           justice.   Therefore,  it  is   imperative   that   proper   and
           comprehensive investigation is undertaken by an agency which  is
           not under the control of the State Government.

           14. The Right to Information Act, 2005 declared in its  Preamble
           that,  whereas  the  Constitution  of  India   has   established
           democratic Republic and democracy requires an informed citizenry
           and  transparency  of  information  which  are  vital   to   its
           functioning  and  also  to  contain  corruption  and   to   hold
           Governments  and  their  instrumentalities  accountable  to  the
           governed; and to preserve  the  paramountcy  of  the  democratic
           ideal, that it was enacted.  The Constitutional powers conferred
           upon the highest judicial institution in the State to  entertain
           public interest litigation and  issue  necessary  direction  was
           also a step forward in enforcing the fundamental rights  of  the
           citizens and ensuring the rule of law.  These progressive  steps
           cannot be allowed to be nullified  and  no  one  should  face  a
           threat to his life when he approaches a court of law to exercise
           his right of access to justice.  In such  milieu,  murder  of  a
           petitioner in a PIL and an RTI activist, in front  of  the  High
           Court, could be  read  as  a  clear  message  to  the  concerned
           citizens that they may have to  pay  by  their  lives,  if  they
           insist upon using the tools placed in their  hands  by  law  and
           approach the Court for redressal  of  public  grievance  against
           some individuals.  The commission of murder, in the facts of the
           present case, amounted to an affront to the judicial system  and
           a challenge to implementation of  an  Act  of  Parliament,  with
           national  repercussions  and  has  to   be   viewed   seriously.
           Therefore, it is of utmost importance that the case on  hand  is
           thoroughly investigated and properly prosecuted  by  independent
           and competent officers, so as to inspire confidence and reaffirm
           faith of the people in rule of law.

           15.   In the facts and for the  reasons  discussed  hereinabove,
           while concluding that the investigation into murder of  the  son
           of the petitioner was far from fair, independent, bona  fide  or
           prompt, this Court refrain from even  remotely  suggesting  that
           the investigating agency should  or  should  not  have  taken  a
           particular line of  investigation  or  apprehended  any  person,
           except in  accordance  with  law.   It  is  clarified  that  the
           observations made herein are only for  the  limited  purpose  of
           deciding whether further investigation was required to be handed
           over to CBI, and they shall not be construed as expression of an
           opinion on any particular aspect of  the  investigation  carried
           out so  far.   However,  in  view  of  the  peculiar  facts  and
           circumstances, following the ratio of several judgments  of  the
           Apex Court discussed hereinabove and in the interest of  justice
           and to instill confidence in the investigation  into  a  serious
           case having far reaching implications that we order that further
           investigation into I-C.R.No. 163 of 2010 shall be transferred to
           the Central Bureau of Investigation (CBI),  with  the  direction
           that the CBI shall immediately undertake an independent  further
           investigation, and all the officers and  authorities  under  the
           State Government shall co-operate in such investigation so as to
           facilitate submission of report of investigation by the  CBI  as
           early as practicable and  preferably  within  a  period  of  six
           months.  The police authorities of the  State  are  directed  to
           hand over the records of the present case to the CBI authorities
           within  ten  days  and  thereafter  the  CBI   shall   take   up
           comprehensive  investigation  in  all  matters  related  to  the
           offence and report thereof shall be submitted to  the  Court  of
           competent jurisdiction and, in the meantime, further  proceeding
           pursuant to the charge-sheets  submitted  by  respondent  No.  5
           shall remain stayed.”

26.   On a perusal of the aforesaid order, it is demonstrable that the  High
Court has expressed its dissatisfaction with  regard  to  the  investigation
conducted by the  investigating  agency.   It  has  called  it  perfunctory.
After ascribing  reasons,  it  has  directed  the  C.B.I.  to  expeditiously
undertake further investigation.  We  may  hasten  to  add  that  the  legal
propriety of the said order is not the subject matter of  challenge  in  the
present appeal.  It has only been brought to  our  notice  that  C.B.I.  has
been directed to conduct a comprehensive investigation.  Needless to  state,
it is open to the appellant to challenge the  legal  substantiality  of  the
said order.  But for  the  present,  suffice  it  to  say,  as  there  is  a
direction for fresh investigation, it should be inapposite  to  enlarge  the
appellant on bail.  We may add that in case the  order  for  reinvestigation
is annulled by this Court, it would be open for  the  appellant  to  file  a
fresh application for bail before the competent Court.  If the order of  the
High Court  withstands  scrutiny,  after  the  C.B.I.  submits  its  report,
liberty is granted to the appellant to move the appropriate court for  grant
of bail.  We may clarify that though we have narrated  the  facts,  adverted
to parameters for grant of bail under Section 439 of the Code, dwelled  upon
the view of this  Court  relating  to  criminal  conspiracy  and  noted  the
submissions of the learned counsel for the parties, we  have  not  expressed
our final opinion on entitlement of the appellant to be released on bail  or
not because of the subsequent development i.e. direction by the  High  Court
for comprehensive investigation by the C.B.I.

27.   The appeal, is accordingly, disposed of.




                                                             ……………………………….J.
                                      [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                               [Dipak Misra]

New Delhi;
October 12, 2012.


-----------------------
[1]    (1962) 3 SCR 622
[2]    (1978) 1 SCC 118
[3]    (2005) 2 SCC 13
[4]    (2001) 4 SCC 280
[5]    (2005) 8 SCC 21
[6]    JT 2012 (9) SC 155
[7]    (2004) 12 SCC 336
[8]    (1988) 3 SCC 609
[9]    (1996) 4 SCC 659
[10]   (2003) 3 SCC 641


-----------------------
21

It will be for the concerned individuals who face such criminal proceedings to work out their remedy in the manner known to law. Even if such individuals are not in a position to seek for any appropriate legal assistance on their own, having regard to the set up of Legal Service Authority and its effective functioning, in the nook and corner of the country, there should be no dearth of legal assistance for those affected persons to seek for such legal aid free of cost. Therefore, when there is no dearth for seeking legal assistance free of cost, on that score as well it cannot be held that the concerned individuals will be left with no remedy. In fact, it is now well known that on mere asking of the concerned presiding officer, those involved in such criminal proceedings are being offered free legal aid of high calibre in order to ensure that no innocent person is being punished for want of proper legal assistance.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION

                     WRIT PETITION (CRL.) NO. 19 OF 2012

    Gulzar Ahmed Azmi & Anr.                         …Petitioners


                                   VERSUS

    Union of India & Ors.                                 …Respondents


                                  O R D E R




Fakkir Mohamed Ibrahim Kalifulla, J.


   1. The petitioners have preferred this writ  petition  under  Article  32
      read with Article 21 of the Constitution ostensibly in public interest
      in which the petitioners pray for a Writ of Mandamus for  constitution
      of a Committee to make further investigation of all  the  bomb  blasts
      cases which have taken place since 2002.



   2. When we examine the relief prayed for by the petitioners, we find that
      there are as many as six substantive prayers made  by  them  including
      constitution of a Committee headed by a retired Judge of  the  Supreme
      Court along with team  of  competent  officers  and  experts  to  make
      further investigation of all bomb blasts cases which have taken  place
      since 2002 onwards. The prayer specifically mentions a list by way  of
      Annexure P-45 wherein the details have  been  mentioned  in  order  to
      monitor the investigation to be ordered while granting any  relief  in
      the writ petition.



   3. The further prayer in the writ petition is  for  a  direction  to  the
      respondents to initiate criminal or departmental  action  against  the
      erring police officers for having implicated alleged  innocent  Muslim
      boys by fabricating false evidence.



   4. The third prayer in the writ  petition  is  for  a  direction  to  the
      respondents to initiate criminal or departmental  action  against  the
      officers of Central and State  Intelligence  Agencies,  who  furnished
      wrong inputs to the State  Police  and  thereby  pressurised  them  to
      arrest innocent Muslim boys.

   5. In the fourth prayer the petitioners prayed for  a  direction  to  the
      respondents to make the contents of the laptops,  recovered  from  Lt.
      Col. Purohit and Mahant Dayanand Pandey, public and thereafter make an
      inquiry for taking action against the culprits who  were  involved  in
      anti-national terror activities.



   6. In the fifth prayer they seek for a direction to the first  respondent
      for taking action against communal organisations  like  RSS,  VHP  and
      their allied forums who alleged to have indulged in bomb blasts  cases
      and other terror related activities. In the last prayer they seek  for
      a direction to release on bail the detenus  arrested  in  bomb  blasts
      cases referred to in Annexure P-45 against whom there is no  clinching
      or conclusive evidence.



   7. To sum-up the grievance of  the  petitioners,  as  per  the  averments
      contained  in the petition,  is  that  the  real  culprits  are  being
      shielded from taking any action against them,  while  innocent  Muslim
      boys have been roped in  various  bomb  blasts  cases  throughout  the
      country since the year 2002 and in order to unearth the  said  factor,
      this  Court  should  direct  the  first  respondent  to  constitute  a
      Committee headed by a retired Judge of the Supreme Court who should be
      assisted with the team  of  officers  having  competent  investigation
      skills along with other experts.



   8. At the very outset, we wish  to  state  that  if  the  prayer  of  the
      petitioners were to be accepted for whatever  grounds  stated  in  the
      petition and any such Committee is directed  to  be  constituted  that
      will only result in making a roving inquiry into the various  criminal
      proceedings so far lodged connected with cases of bomb blasts all over
      the country. We are not, therefore, inclined  to  countenance  such  a
      wide prayer asked for in this writ petition.



   9. Since criminal cases registered in connection with  various  incidents
      are either pending trial before the competent jurisdictional courts or
      being investigated by the jurisdictional police, it  is  premature  to
      say whether any and if so which of the accused is innocent or has been
      falsely implicated.  If anyone is falsely roped in any offence  either
      under the provisions of Indian Penal Code or under any  other  special
      enactments, by way of criminal proceeding, it  is  needless  to  state
      that there are enough safeguards provided under the various  laws  and
      under the criminal law jurisprudence, to protect the interest  of  any
      such person claiming himself to be innocent and demonstrate before the
      concerned Fora that he has been falsely  implicated  in  any  offence.
      Therefore, it will be for the concerned individual  against  whom  any
      criminal proceeding is lodged to work out his remedy. For instance, if
      in any particular criminal  case,  one  wishes  to  seek  for  further
      investigation under Section 173 (8) of the Cr.P.C. the same can always
      be effected even after the filing of the final report.  Such  a  power
      existing with  the  Investigating  Officer,  having  been  statutorily
      provided, it will be a futile exercise if such a statutory exercise is
      to be entrusted with a supernumerary body created under the head of  a
      retired Judge of the Supreme Court along with other team  of  officers
      and experts. When the time tested Criminal Procedure  Code  and  other
      statutory provisions are working in the field providing for such  well
      laid down procedure to be followed in the matter  of  regulating  such
      criminal proceedings, the granting of the  petitioners’  prayer  would
      amount to creating a parallel body without any statutory sanction  and
      to function only under some directions of this Court  which  would  be
      lacking in very many procedural details and will ultimately result  in
      utter chaos and confusion in dealing  with  the  criminal  proceedings
      which have already been lodged and progressing before various criminal
      courts.



  10. We are not, therefore, inclined to consider such a wide prayer applied
      for by the petitioners for constitution of a  special  Committee.  The
      other directions prayed for by the petitioners will also  only  result
      in interfering with the  already  pending  proceedings  in  which  the
      concerned individuals who have been arrayed as  accused  or  otherwise
      can seek for appropriate relief either for  further  investigation  or
      for their discharge or in the event of any other adverse orders passed
      by the concerned Court, approach the  higher  fora  for  redressal  of
      their grievances. There  are  various  levels  of  Appellate  Fora  to
      examine the manner in which the proceedings are being  pursued  before
      the Courts wherein such criminal proceedings have already been  lodged
      or in the event of any adverse orders having been passed, examine  the
      correctness of such orders in order to grant appropriate relief or  to
      confirm such decisions taken by the lower fora.



  11. It will be for  the  concerned  individuals  who  face  such  criminal
      proceedings to work out their remedy in the manner known to law.  Even
      if such individuals are not in a position to seek for any  appropriate
      legal assistance on their own, having regard to the set  up  of  Legal
      Service Authority and its  effective  functioning,  in  the  nook  and
      corner of the country, there should be no dearth of  legal  assistance
      for those affected persons to seek for such legal aid  free  of  cost.
      Therefore, when there is no dearth for seeking legal  assistance  free
      of cost, on that score as well it cannot be held  that  the  concerned
      individuals will be left with no remedy. In fact, it is now well known
      that on mere asking of the concerned presiding officer, those involved
      in such criminal proceedings are being offered free legal aid of  high
      calibre in order to ensure that no innocent person is  being  punished
      for want of proper legal assistance.

  12. Having regard to the above factors,  we  do  not  find  any  scope  to
      entertain this writ petition and  leave  it  open  for  the  concerned
      parties against whom any criminal proceeding is  lodged  to  work  out
      their remedies in the appropriate manner before the appropriate  forum
      in accordance with law. The  writ  petition  fails  and  the  same  is
      dismissed.




                                                     …..……….……………………….....J.
                                                               [T.S. Thakur]


                                                         ……………………………………………J.
                              [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 October 11, 2012

It is a broad day light murder at 9.00 a.m. on the main road. The eye-witnesses had been following the deceased on the ‘Moped’ as they had to attend the court’s proceedings at Azamgarh. The enmity between the parties stood fully established as criminal cases were pending between them. The case of the prosecution stood fully corroborated by the medical evidence and the ocular evidence. It is not probable that the real brothers of the deceased who had been the eye-witnesses would implicate the appellants falsely sparing the real assailants, though false implication of some of the persons may not be ruled out. Thus, the High Court was justified in acquitting some of the convicts as they did not belong to the family of the appellants/assailants.

REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1253 of 2008




     Dahari & Ors.
     …Appellants


                                   Versus


     State of U.P.
      …Respondent






                               J U D G M E N T




     Dr. B.S. CHAUHAN, J.


     1.     This appeal has been preferred against the  judgment  and  order
     dated 27.4.2007 in Criminal Appeal No. 3990 of 2005 passed by the  High
     Court of Judicature at Allahabad, partly allowing  the  appeal  against
     the judgment and order dated 7.9.2005 passed  by  the  Sessions  Court,
     Azamgarh, in Sessions Trial No. 215 of 1991, convicting the  appellants
     and the co-accused under Sections 302, 149  and  148  of  Indian  Penal
     Code, 1860 (hereinafter referred to as the `IPC’) and  sentencing  them
     to undergo rigorous imprisonment for life, and also one year RI,  under
     Section 148 IPC respectively and further, to pay a fine of  Rs.10,000/-
     on each count, and in default of such payment,  to  further  undergo  a
     term of four months RI.
     2.     The facts and circumstances giving rise to this  appeal  are  as
     follows:
     A.     On 7.9.1990, Tej Bahadur (deceased) was travelling  on  a  motor
     bike alongwith his friend Ashok at  9.00 a.m. and while  doing  so,  he
     was followed by his two brothers, namely, Man Bahadur and  Raj  Bahadur
     who were both on a moped in the village of Kiratpur, district Azamgarh.
     The deceased was riding the motor cycle, while Ashok  was  the  pillion
     rider. When they left the village, they  saw  the  appellants  and  the
     other accused come out of a sugarcane field, armed  with  country  made
     pistols  with  which  they  fired  at   the   deceased,   killing   him
     instantaneously.  After this, they immediately ran away.
     B.     The incident was witnessed by one Rajesh Singh (PW.3)  and  also
     Shashi Bhushan (PW.5),  alongwith  some  other  persons.   Man  Bahadur
     (PW.1) and Raj Bahadur (PW.2) shifted the dead body of the deceased and
     laid it near a Mango grove, beside the road.
     C.     Man Bahadur (PW.1) then lodged an FIR at 10.05 a.m. at a  police
     station which was at a distance of about 12  K.M.  from  the  place  of
     occurrence of the incident. Mr. Sarvdev Singh (PW.4),  I.O.  thereafter
     began investigation. He came to the said spot, recovered the dead body,
     the  cartridges  and  pellets,  blood  stained  earth  etc.  from   the
     aforementioned place of occurrence and  prepared  the  panchnama.   The
     I.O. then also recorded the statement of witnesses and after concluding
     the said investigation, submitted a  charge  sheet  against  7  accused
     persons.
     D.     The learned trial Court, after holding trial, vide judgment  and
     order dated 7.9.2005 convicted and  sentenced  all  the  seven  accused
     persons, as has been stated hereinabove.
     E.     Aggrieved, all seven accused persons preferred  Criminal  Appeal
     No. 3990 of 2005 before the High Court, and by  impugned  judgment  and
     order of the High Court, dated 27.4.2007, the conviction  and  sentence
     of the appellants  was  maintained.  However,  three  of  the  convicts
     namely, Bane, Patiram and Phool Chand were acquitted of all charges.
            Hence, this appeal.
     3.     Shri S.R.  Singh,  learned  senior  counsel  appearing  for  the
     appellants  submitted  that  the  High  Court  committed  an  error  by
     convicting the appellants under Sections 302, 149 and 148 IPC, as after
     the acquittal of three persons among the accused, the total  number  of
     accused in the said case, are only four. Therefore, the  provisions  of
     Section 149 IPC would no longer be attracted. Moreover, the prosecution
     withheld its most material witness, that is, Ashok, the  pillion  rider
     of  the  motorcycle  ridden  by  the  deceased,  Tej  Bahadur  and   no
     explanation whatsoever was furnished, by the prosecution for  his  non-
     examination.  Furthermore, it was not  possible  to  inflict  upon  the
     deceased, the said gun shot injuries in  the  presence  of  a   pillion
     rider on the motor bike. Shashi Bhushan (PW.5), a prime witness to  the
     incident,  turned  hostile  and  did  not  support  the  case  of   the
     prosecution. Man Bahadur (PW.1) and Raj Bahadur  (PW.2)  are  the  real
     brothers of the deceased and therefore, their testimony should  not  be
     believed, as they are no doubt, interested witnesses. The  evidence  on
     record is  insufficient to convict the said appellants.  In view of the
     fact that the High Court acquitted three among the accused persons, dis-
     believing the testimony of the witnesses, there is no justification for
     the Court to convict the said  appellants  herein.   Thus,  the  appeal
     deserves to be allowed.
     4.     On the contrary, Shri  Pramod  Swarup,  learned  senior  counsel
     appearing for the State vehemently opposed the appeal, contending  that
     the law does not require one to discard the testimony of witnesses  who
     are closely related to the  deceased/victim.  Their  evidence  must  in
     fact, be examined with due care and caution. The appellants must not be
     allowed to take the benefit of any technicalities.  In  case  the  High
     Court acquitted the three accused, it ought to have convicted the  said
     appellants with the aid of Section 34 IPC. The appeal therefore,  lacks
     merit and is liable to be dismissed.
     5.     We have considered the rival submissions made by learned counsel
     for the parties and perused the record.
     6.     In the post-mortem report, the following injuries were found  on
     the person of the deceased.
           EXTERNAL: -


           1.    Gun shot wound of entry half cm x half cm x  chest  cavity
           deep irregular margin situated on left  pectoral  area  five  cm
           below left nipple.
           2.    Gun shot wound of exit Three cm x two cm x  through  eight
           cm  lateral  to  thoracic-3,  communicating  to  injury  no  one
           directing backward horizontally.
           3.    Gun shot wound of entry 2.4 cm x cavity deep situated over
           lateral part of back fourteen cm  below  and  in  line  to  left
           shoulder joint with irregular margin.
           4.    Gun shot wound of Exit 4  cm  x  3  cm  Through  on  right
           pectoral area eight cm above RT nipple at Ten  O'clock  position
           communicating to injury number three.
           5.    Gun shot wound of entry one cm x one cm x cavity deep with
           irregular margin situated on back at throaic-5.
           6.    Gun shot wound of Exit Two cm x one cm x through,  ten  cm
           lateral to left nipple communicating to injury number five.
           7.    Gun shot wound of entry one  cm  x  one  cm  x  bony  deep
           irregular margin with multiple abrasion on right  half  of  face
           and neck and fracture of scapula and humerus bone was found.
           8.    Gun shot wound of Entry one cm x  one  cm  x  muscle  deep
           irregular margin, five cm left lateral to L4 spine.
           9.    Gun shot wound of Exit two cm  x  two  cm  x  muscle  deep
           situated on middle of Right Glutal area communicating to  injury
           number eight.
                   The doctor opined the cause of death  due  to  shock  and
           haemorrhage as a result of ante- mortem injuries.


     7.     The medical evidence i.e. the  deposition  of  Dr.  A.K.  Pandey
     (PW.6) corroborates the ocular version of events as has been  given  by
     the eye-witnesses, from which it can be understood that  there  were  a
     total of five gun shot injuries.  It was also stated that the  deceased
     had fallen down and was then surrounded by  the  accused  persons,  who
     shot at him repeatedly. Thus, there is no incompatibility in  the  oral
     evidence and the medical evidence, on record.
     8.     In the instant case, the FIR was lodged within a period  of  one
     hour, at a police station which was at a distance of  12 kms. from  the
     place  of occurrence, and this goes to prove that  Man  Bahadur  (PW.1)
     and Raj Bahadur (PW.2) were in fact, present at the place of occurrence
     and were in a position to see the accused from  close  quarters.   They
     were also all known to the witnesses. The reason that they happened  to
     be accompanying the deceased was because they were  all  going  to  the
     Azamgarh Court in relation to a criminal case, relating to  the  murder
     of one Gharbharan, in which Raghu Prakash, son of Raj  Bahadur  (PW.2),
     was the accused. There is nothing in the cross-examination of the  eye-
     witnesses to cast a doubt upon the veracity of their  testimony  or  to
     discredit it in anyway.
     9.     It is a settled legal proposition that the evidence  of  closely
     related  witnesses  is  required  to  be  carefully   scrutinised   and
     appreciated before any conclusion is made to rest  upon  it,  regarding
     the convict/accused in a given case. In case the evidence has a ring of
     truth to it, is cogent, credible and trustworthy, it can, and certainly
     should, be relied upon.  (Vide:  Himanshu  v.  State  (NCT  of  Delhi),
     (2011) 2 SCC 36; Ranjit Singh v. State of M.P., AIR 2011  SC  255;  and
     Onkar & Anr. v. State of Uttar Pradesh, (2012) 2 SCC 273).
     10.    Man Bahadur (PW.1) and Raj Bahadur (PW.2) undoubtedly,  are  the
     real brothers of the deceased. They, at the time of the incident,  were
     following the deceased on their ‘Moped’. They have supported  the  case
     of the prosecution to the fullest extent, and  even  though  they  were
     thoroughly  questioned  by  the  defence  in  the  course   of   cross-
     examination, they did not  elicit  anything  which  could  shake  their
     testimony. Thus, we do not see any reason to discard their testimonies.


     11.    So far as the non-production of Ashok, the most material witness
     to the case is concerned, it is evident from the record that during the
     cross-examination of Sarvdev Singh,  I.O.  (PW.4),  none  of  the  said
     accused voiced their concerns or raised any apprehension regarding  the
     non-examination of Ashok.  He was the only competent witness who  would
     have been fully capable of explaining correctly, the factual situation.
     In such a situation, the appellants cannot be permitted to  advance  an
     argument stating that since the most material witness was  withheld  by
     the prosecution therefore, adverse inference should  be  drawn  against
     them.
     12.    It has also been canvassed on behalf of the appellants  that  it
     seems rather improbable, that despite the fact  that  several  injuries
     were caused to the deceased, the pillion rider did not receive a single
     injury,  and  therefore,  the  veracity  of  the  entire  case  of  the
     prosecution is doubtful. This very issue has been considered at length,
     by both the courts below. They have come  to  the  reasoned  conclusion
     that the pillion rider must have run away to save his life  and  hence,
     escaped injury. The evidence on  record  is  to  the  extent  that  the
     deceased had fallen down and that he was then surrounded by the accused
     and fired upon. Thus, nothing turns in favour of the  appellants  based
     on this point raised by them.
     13.    In the instant case,  there  was  undisputedly,  prior  ill-will
     existing between the parties, as criminal cases  were  pending  between
     them and Ravi Prakash, son of Raj Bahadur (PW.2)  was still in jail  in
     connection with the same.  Hence, there was sufficient motive  for  the
     appellants to kill the deceased.
     14.    Another question worth consideration is whether  the  appellants
     can be convicted under Section 302 r/w Section 149  IPC  in  the  event
     that the High Court has acquitted three persons among the  accused  and
     the number of convicts has thus, remained at a number that is less than
     5, which is  in  fact,  necessary  to  form  an  unlawful  assembly  as
     described under Section 141 IPC.
     15.    This Court in Amar Singh v. State of Punjab,  AIR 1987  SC  826,
     held as under:

           “As the appellants were  only  four  in  number,  there  was  no
           question of  their  forming  an  unlawful  assembly  within  the
           meaning of Section 141 IPC. It is not the prosecution case  that
           apart from the said seven  accused  persons,  there  were  other
           persons who were  involved  in  the  crime.  Therefore,  on  the
           acquittal of three accused persons, the remaining four  accused,
           that is, the appellants, cannot be convicted under  Section  148
           or Section 149 IPC for any offence, for, the first condition  to
           be fulfilled in designating an assembly an  “unlawful  assembly”
           is that such assembly must  be  of  five  or  more  persons,  as
           required under Section 141 IPC. In our opinion, the  convictions
           of the appellants under Sections  148  and  149  IPC  cannot  be
           sustained.”  (Emphasis added)


      16.   Similarly, in Nagamalleswara Rao (K.) & Ors. v. State of  Andhra
      Pradesh, AIR 1991 SC 1075, this Court observed:

           “8. However,  the  learned  Judges  overlooked  that  since  the
           accused who are convicted were  only  four  in  number  and  the
           prosecution has not proved the involvement of other persons  and
           the courts below have acquitted all the other accused of all the
           offences, Section 149 cannot be invoked for convicting the  four
           appellants herein…. It is not the prosecution  case  that  apart
           from the said 15 persons  there  were  other  persons  who  were
           involved in the crime. When the 11 other accused were  acquitted
           it means that their involvement in  the  offence  had  not  been
           proved. It would not also be permissible to assume  or  conclude
           that others named or unnamed acted conjointly with  the  charged
           accused in the case unless the charge itself  specifically  said
           so and there was evidence to conclude that some others also were
           involved in the commission of the offence  conjointly  with  the
           charged accused in furtherance of a common object.
                                             (Emphasis added)


      17.   Similarly, this Court  in  Mohammed  Ankoos  &  Ors.  v.  Public
      Prosecutor, High Court of Andhra Pradesh, Hyderabad, AIR 2010 SC  566,
      held as under:

           “35. Section 148 IPC creates liability  on  persons  armed  with
           deadly weapons and  is  a  distinct  offence  and  there  is  no
           requirement in law that members of unlawful assembly  have  also
           to be charged under Section 148 IPC for legally recording  their
           conviction under Section 302 read with Section 149 IPC. However,
           where an accused is charged under Section 148 IPC and acquitted,
           conviction of such accused under Section 302 read  with  Section
           149 IPC could not be legally recorded. We find  support  from  a
           four-Judge Bench decision of this Court  in  Mahadev  Sharma  v.
           State of Bihar, AIR 1966 SC 302…”:


      18.   Undoubtedly, this Court has categorically held that  in  such  a
      situation, a conviction cannot be made with the  aid  of  Section  149
      IPC, particularly when, upon the acquittal of some of the accused, the
      total number of accused stands reduced to less than 5, and it  is  not
      the case of the prosecution that there are in fact, some other accused
      who have not yet been put to trial. However,  it  is  also  a  settled
      legal proposition that in such a fact-situation, the High Court  could
      most certainly have convicted the appellants, under  Section  302  r/w
      Section 34 IPC.


      19.   In Nethala Pothuraju & Ors. v. State of Andhra Pradesh, AIR 1991
      SC 2214, this Court while considering  a similar case, held  that  the
      non-applicability of Section 149 IPC is no  bar  for  the  purpose  of
      convicting the accused under Section 302 r/w Section 34  IPC,  if  the
      evidence discloses the commission of an offence, in furtherance of the
      common intention of such accused.  This is because, both, Sections 149
      and 34 IPC deal with a group  of  persons  who  become  liable  to  be
      punished as sharers in the commission of an offence. Thus, in  a  case
      where the prosecution fails to prove that the number of members of  an
      unlawful assembly are 5 or more, the  court  can  simply  convict  the
      guilty persons with the aid of Section 34 IPC, provided that there  is
      adequate evidence on record to show that such accused shared a  common
      intention to commit the crime in question.
            A similar view has been re-iterated in Jivan Lal & Ors. v. State
      of M.P., (1997) 9 SCC 119; and Hamlet  @  Sasi  &  Ors.  v.  State  of
      Kerala, AIR 2003 SC 682.
      (See also: Willie (William) Slaney v. State of M.P., AIR 1956 SC  116;
      Fakhruddin v. State of Madhya Pradesh,  AIR  1967  SC  1326;  Gurpreet
      Singh v. State of Punjab, AIR 2006 SC 191; Sanichar Sahni v. State  of
      Bihar, AIR 2010 SC 3786; S. Ganesan v. Rama Raghuraman & Ors.,  (2011)
      2 SCC 83; and Darbara Singh v. State of Punjab, JT 2012 (8) SC 530).
            In view  of  the  above,  we  do  not  find  any  force  in  the
      aforementioned submissions of the appellants  and  the  same  are  not
      worth acceptance.


      20.   It is a broad day light murder at 9.00 a.m. on  the  main  road.
      The eye-witnesses had been following the deceased on  the  ‘Moped’  as
      they had to attend the court’s proceedings  at  Azamgarh.  The  enmity
      between the parties stood fully established  as  criminal  cases  were
      pending  between  them.  The  case  of  the  prosecution  stood  fully
      corroborated by the medical evidence and the ocular  evidence.  It  is
      not probable that the real brothers of the deceased who had  been  the
      eye-witnesses would implicate the appellants falsely sparing the  real
      assailants, though false implication of some of the persons may not be
      ruled out.  Thus, the High Court was justified in acquitting  some  of
      the  convicts  as  they  did  not  belong  to  the   family   of   the
      appellants/assailants.
           The appeal is hence, devoid  of  any  merit  and  is  therefore,
      accordingly dismissed.


                                       …..………………………….J.
                                             (Dr. B.S. CHAUHAN)


                                   …..….…….….…….……………………………J.
                      (FAKKIR MOHAMED IBRAHIM KALIFULLA)




      New Delhi,
      October 11, 2012