Criminal conspiracy = Non - examination of witness whether fatal ?
Criminal Conspiracy =
The essential ingredients of Criminal Conspiracy are
(i) an agreement between two or more persons;
(ii) 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.
What is,
therefore, necessary is to show meeting of minds of two or more
persons for doing or causing to be done an illegal act or an act by
illegal means.
Mere knowledge or discussion or generation of a crime
in the mind of the accused, is not sufficient to constitute an
offence.
The offence takes place with the meeting of minds even if
nothing further is done.
It is an offence independent of other
offences and punishable separately.
Thus, the prosecution is required
to establish the offence by applying the same legal principles which
are otherwise applicable for the purpose of proving criminal
misconduct on the part of an accused.
Criminal conspiracy is generally
hatched in secrecy thus direct evidence is difficult to obtain or
access.
The offence can be proved by adducing circumstantial evidence
or by necessary implication. Meeting of minds to form a criminal
conspiracy has to be proved by adducing substantive evidence in cases
where circumstantial evidence is incomplete or vague.
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 between the parties. Agreement is essential.
The High Court
rightly observed that normally the perpetrator of crime in a case of
conspiracy does not take part in the execution rather such conspirator
hires some criminal directly or indirectly to execute the evil design
planned by him.
There may be circumstances where the conspirator
remains vigilant to conceal his identity and would not disclose the
actual motive behind the conspiracy.
19. Thus, we do not see any reason for interfering that the
prosecution witnesses have deposed falsely to implicate the
appellants.
Non- examination of witness - question must be placed before I.O. =
however, no such question was
put to him as to why those witnesses were not examined. In the absence
of putting such an issue to Jagdish Prasad (PW.8), Investigating
Officer, the appellants cannot seek any benefit of such omission or
error by the prosecution in conducting of trial.
In the matter of appreciation of evidence of witnesses, it is
not the number of witnesses but quality of their evidence which is
important, as there is no requirement under the Law of Evidence that
any particular number of witnesses is to be examined to prove/disprove
a fact. It is a time- honoured principle that evidence must be weighed
and not counted. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy or otherwise. The legal system has
laid emphasis on value provided by each witness, rather than the
multiplicity or plurality of witnesses.
It is quality and not
quantity, which determines the adequacy of evidence as has been
provided by Section 134 of the Evidence Act. Even in Probate cases,
where the law requires the examination of at least one attesting
witness, it has been held that production of more witnesses does not
carry any weight. Thus, conviction can even be based on the testimony
of a sole eye witness, if the same inspires confidence.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1316 of 2012
Gulam Sarbar
…Appellant
Versus
State of Bihar (Now Jharkhand)
…Respondent
With
CRIMINAL APPEAL NO. 1967 of 2012
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned judgment
and order dated 22.3.2012 passed by the High Court of Jharkhand at
Ranchi in Criminal Appeals (DB) Nos. 273 of 1998 (R) and 262 of 1998
(R) affirming the judgment and order of conviction and sentence dated
26.8.1998 and 31.8.1998 respectively passed by the 3rd Additional
Sessions Judge, Dhanbad in Sessions Trial No. 112 of 1997, by which
and whereunder, the appellants in both these appeals stood convicted
alongwith others, namely, Binod Kumar, Asgar Mian @ Asgar Ansari,
Paiki Ramm @ Poki Ramm and Mantu Das under Sections 302 read with 120-
B of Indian Penal Code, 1860 (hereinafter referred to as the `IPC’)
and sentenced to undergo RI for life.
2. Facts and circumstances giving rise to these appeals are that:
A. As per the case of the prosecution, Dr. Gopal Prasad Sinha
(PW.7), informant/complainant was going alongwith Sant Kumar Sinha
(deceased), to Rajganj, Dhanbad on his motorcycle at about 8.00 P.M.
on 6.9.1996. When they reached near Sant Nirankari Chowk, they saw a
scooter and a motorcycle parked at the side of the road and six
persons including the appellants were standing in the close proximity
thereof, and they signalled the complainant to stop.
The complainant
stopped his motorcycle and enquired as to why they were waiting. But
within no time, Yakub Ansari and Dhiren Mahto - appellant took out
their pistols from their waist and pointed towards them and asked why
Sant Kumar Sinha (deceased) was disturbing the working of the
institute run by Binod Kumar.
They threatened Sant Kumar Sinha
(deceased) to remain away from the institute.
Sant Kumar Sinha
(deceased) asked the accused persons how they were related to running
the affairs of the institute, which led to an exchange of hot words
between the deceased and the accused persons.
Accused Asgar started
inflicting blows by means of a knife and told his companions to
complete the task for which they had come.
Immediately, Yakub opened
fire at point blank range from his revolver on the left side of the
neck of Sant Kumar Sinha (deceased) due to which the deceased
collapsed and died immediately.
The informant/complainant being scared
ran away from the place of occurrence, leaving his motorcycle at the
spot.
He met a police party to whom he narrated the incident. On the
basis of the Fardbeyan of the informant, a case under Sections 302/120-
B/379 IPC and Section 27 of the Arms Act, 1959 (hereinafter referred
to as the ‘Arms Act’) against the accused, including both the
appellants, was registered vide FIR No. 175 of 1996. Thus, the
investigation ensued accordingly.
B. After the conclusion of the investigation, a charge sheet was
filed against all the accused, showing Yakub @ Ayub as an absconder.
Accordingly, the trial vide S.T. No. 112 of 1997 commenced. The co-
accused Yakub @ Ayub was apprehended later and was tried separately
vide S.T. No. 405 of 1998.
C. In order to prove its case, the prosecution examined eight
witnesses including Mithilesh Kumar Sinha (PW.1) – real brother of the
deceased, Arvind Kumar (PW.2) – cousin of deceased, Dr. Dhiraj (PW.6),
who conducted the post-mortem examination, Dr. Gopal Prasad Sinha
(PW.7), informant/complainant and brother of deceased and Jagdish
Prasad (PW.8), the Investigating Officer.
D. The defence also examined three witnesses. Gurpreet Singh
Mittal (DW.1), was examined only to prove that there was no light in
Sant Nirankari Bhawan at the relevant point of time, and further to
show that Nirankari Chowk was at a distance of about 200-250 feet away
from Nirankari Bhawan. Vijay Kumar Singh (DW.2) and Suresh Dass
(DW.3) were merely formal witnesses.
E. As per the case of the prosecution, Gulam Sarbar, appellant ran
away on Yakub’s motorcycle after the incident. He was chased by the
police and arrested at a short distance from the place of occurrence
after he jumped a police barricade.
F. Similarly, Dhiren Mahto left the place of occurrence on LML
Vespa Scooter alongwith Asgar Mian. So far as Dhiren Mahto (appellant)
is concerned, he was arrested after a few days on secret information
of his presence at Naya Bazar. At the time of raid, the said
appellant tried to run away on the scooter after seeing the police but
was chased and captured near Bartad.
G. In his statement under Section 313 of Code of Criminal
Procedure, 1973 (hereinafter referred to as `Cr.P.C.’), Gulam Sarbar
simply denied all allegations against him and even denied his presence
at the place of occurrence.
Dhirendra Chandra Mahto denied his
involvement by any means in the murder of Sant Kumar Sinha (deceased)
stating that he had nothing to do with the main accused Binod Kumar.
He was a small contractor, however, he did not deny his presence at
the place of occurrence nor that he had run away on the scooter taking
away Asgar Ansari as pillion rider.
H. After considering the material on record, the trial court vide
its judgment and order dated 31.8.1998 convicted both the appellants
under Sections 302 and 120-B IPC alongwith other accused and sentenced
as referred to hereinabove but acquitted Dhirendra Chandra Mahto of
the charge under Section 27 of the Arms Act.
I. Aggrieved, they preferred appeals alongwith others before the
High Court which stood dismissed by the impugned judgment and order
dated 22.3.2012.
Hence, these appeals.
3. Shri Amarendra Sharan, learned senior counsel appearing on
behalf of Gulam Sarbar and Shri Ashok K. Srivastava, learned senior
counsel appearing on behalf of Dhiren Mahto, have submitted that
there
is no material on record to prove the existence of a conspiracy to
kill Sant Kumar Sinha (deceased); none of these appellants was
involved in the affairs of the institute for which there was some
dispute between Sant Kumar Sinha (deceased) and Binod Kumar (accused).
In fact, both of them had been running a institute jointly and one
Shipra Sen Choudhery was working as a clerk in the institute with whom
Binod Kumar (accused) developed illicit relationship which was not
liked by Sant Kumar Sinha (deceased), who tried to persuade Binod
Kumar (accused) not to continue that relationship but he was not
willing to give up the same.
Sant Kumar Sinha (deceased) also informed
the wife of Binod Kumar (accused) about this relationship and there
was a quarrel between Shipra Sen Choudhery and Binod Kumar’s wife over
the same. Earlier, Binod Kumar had opened a new institute and made
Shipra Sen Choudhery its Director.
However, none of these appellants
were involved in the entire episode. Even the arrest of Gulam Sarbar
from a place near to the place of incident is doubtful. Had it been
so, the FIR which was registered after the arrest of Gulam Sarbar,
would contain such facts. Even the general diary did not mention what
the distance was between the police station and the place from where
Gulam Sarbar, appellant, was arrested. The investigation had not been
conducted properly and fairly.
The witnesses, particularly, Mithilesh
Kumar Sinha (PW.1) and Arvind Kumar (PW.2) not being eye-witnesses
could not be relied upon. No independent witness was examined by the
prosecution to prove the arrest of any of the appellants nor to prove
alleged recoveries of the motor cycle and the scooter in the case.
The prosecution case is based on speculation and conjecture thus, the
appeals deserve to be allowed and the judgment and order of the courts
below are liable to be set aside.
4. Per contra, Shri Ratan Kumar Choudhuri and Shri Krishnanand
Pandeya, learned counsel appearing on behalf of the State, opposed
both these appeals contending that there are concurrent findings of
facts and that both accused persons were well acquainted with Binod
Kumar, the main accused, and had been seen by the witnesses and
particularly by Dr. Gopal Prasad Sinha (PW.7) in the institute owned
by Binod Kumar, accused, prior to the incident.
Their presence on the
spot and the manner in which they had parked their vehicles and
stopped the motorcycle on which the complainant and deceased were
travelling is enough to prove the conspiracy.
There is no improvement
or embellishment in the case of the prosecution against any individual
accused. The evidence has rightly been appreciated by the courts
below and ocular evidence is corroborated by the medical evidence.
Thus, the appeals lack merit and are liable to be dismissed.
5. The essential ingredients of Criminal Conspiracy are
(i) an agreement between two or more persons;
(ii) 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.
What is,
therefore, necessary is to show meeting of minds of two or more
persons for doing or causing to be done an illegal act or an act by
illegal means.
Mere knowledge or discussion or generation of a crime
in the mind of the accused, is not sufficient to constitute an
offence.
The offence takes place with the meeting of minds even if
nothing further is done.
It is an offence independent of other
offences and punishable separately.
Thus, the prosecution is required
to establish the offence by applying the same legal principles which
are otherwise applicable for the purpose of proving criminal
misconduct on the part of an accused.
Criminal conspiracy is generally
hatched in secrecy thus direct evidence is difficult to obtain or
access.
The offence can be proved by adducing circumstantial evidence
or by necessary implication. Meeting of minds to form a criminal
conspiracy has to be proved by adducing substantive evidence in cases
where circumstantial evidence is incomplete or vague.
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 between the parties. Agreement is essential.
(Vide: Kehar
Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883; State (NCT of
Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820; Mir Nagvi
Askari v. CBI, AIR 2010 SC 528; Baldev Singh v. State of Punjab,
(2009) 6 SCC 564; State of M.P. v. Sheetla Sahai & Ors., (2009) 8 SCC
617; R. Venkatkrishnan v. CBI, AIR 2010 SC 1812; and S.Arul Raja v.
State of T.N., (2010) 8 SCC 233).
6. In Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh & Anr. v. CBI,
(2008) 15 SCC 49, it was held that in order to come under this
provision it is not necessary for the accused to know the detailed
stages of conspiracy; mere knowledge of main object/ purpose of the
conspiracy would suffice for this Section.
Similarly, in Vikram Singh & Ors. v. State of Punjab, AIR 2010
SC 1007, this Court dealt with a case where the accused had purchased
fortwin injection and chloroform. Thus, it was held that since the
purchase of these materials was an initial step towards commission of
offence, the presence of co-accused Sonia, though not referred to by
the witnesses at the time of actual kidnapping would not imply that
she was not privy to conspiracy and conviction of the accused under
Section 120-B IPC was upheld.
7. The evidence on record and particularly the deposition of Dr.
Gopal Prasad Sinha (PW.7) clearly depicts the conspiracy from the
manner in which the appellants and other accused were present on the
crossing and stopped the complainant and the deceased.
Admittedly,
there was rivalry and ill-will between Binod Kumar (accused) and Sant
Kumar Sinha (deceased) as they had separated their business of
running of educational institution and Sant Kumar Sinha did not like
the illicit relationship between Binod Kumar (accused) and Shipra Sen
Choudhery, Clerk.
Sant Kumar Sinha (deceased) tried to persuade Binod
Kumar (accused) to desist from the said illicit relationship and Sant
Kumar Sinha (deceased) also revealed this fact to the wife of Binod
Kumar (accused) and there was not only a verbal fight between the wife
of Binod Kumar and Shipra Sen Choudhery but also a scuffle between
them on this issue and, subsequently, the wife of Binod Kumar began
living separately.
Therefore, relations between Binod Kumar (accused)
and Sant Kumar Sinha (deceased) had definitely been strained.
8. Both these appellants and other accused were acquainted with
Binod Kumar (accused) as well as Sant Kumar Sinha (deceased) and were
also known to Dr. Gopal Prasad Sinha (PW.7). They had been seen
earlier in the institute with Binod Kumar (accused).
9. The evidence of Dr. Gopal Prasad Sinha (PW.7) that Gulam Sarbar
had run away with the accused Yakub @ Ayub on black coloured Kawasaki
motorcycle and had been arrested within a close vicinity of the place
of incident, though Yakub successfully escaped, inspires confidence.
The names of the appellants and other accused had been mentioned in
the FIR. In such a fact-situation, not mentioning that Gulam Sarbar
had been arrested in the FIR is of no significance.
The LML Vespa
Scooter BR17-B-4455 used in the crime was seized in the presence of
independent witnesses, namely, Sunil Mandal and Santosh Vikral. The
seizure memo was prepared on which both the said panch witnesses put
their signatures. The same was marked as Exhibit 6-1 and was proved by
Jagdish Prasad (PW.8), Investigating Officer.
In respect of the
arrest of Gulam Sarbar, Jagdish Prasad (PW.8) has clearly deposed that
he was inspecting small vehicles in front of the police station
alongwith Constable Badre Alam at about 20.05 hrs., when he saw two
persons on one black coloured Kawasaki motorcycle crossing the barrier
at a very high speed.
They were given signal to stop but they did not
stop. On the contrary, they pushed the barrier and fled away on which
Jagdish Prasad (PW.8) and Constable Badre Alam chased them. Gulam
Sarbar jumped from the motorcycle near Bartand Pulia and tried to flee
but was controlled and captured by them and upon interrogation, he
revealed that Yakub was the person who had run away on the motorcycle.
Jagdish Prasad (PW.8) I.O. received secret information that the
motorcycle used in the crime had been hidden in the house of Yakub
(accused).
A search was conducted of his house in presence of two
independent witnesses, namely, Muslim Ansari and Bhagirath Razak and
the same was recovered. A seizure memo was prepared and was signed by
the said two witnesses. The said seizure memo was marked as Exhibit -
6 and proved by Jagdish Prasad (PW.8), Investigating Officer.
10. Jagdish Prasad (PW.8) deposed that he received secret
information about the whereabouts of the appellant Dhiren Mahto and he
conducted raid at Naya Bazar alongwith other police officials and
Constable Badre Alam. Though he tried to escape, he was apprehended
and arrested and LML Vespa Scooter BR 17-B-4455 was recovered.
The
arrest memo and recovery memo of the scooter was prepared in the
presence of independent witnesses namely, Sunil Mandal and Santosh
Vikral and the seizure memo was signed by the said witnesses. The same
was marked as Exhibit 6-1 and was proved by him.
It was at a later stage that the other accused were arrested.
11. Learned senior counsel appearing on behalf of the appellants
have submitted that neither the witness of arrest memo of either of
the appellants nor the panch witness of the recovery of scooter and
motor cycle used in the crime has been examined by the prosecution.
Even the police Constable Badre Alam who accompanied Jagdish Prasad
(PW.8) I.O. at the time of arrest of Gulam Sarbar has not been
examined. Therefore, the case of arrest of the appellants as well as
the recovery of the vehicles is not worth acceptance and the whole
case of the prosecution becomes doubtful.
12. We had been taken through the entire deposition of Jagdish
Prasad (PW.8), Investigating Officer, however, no such question was
put to him as to why those witnesses were not examined. In the absence
of putting such an issue to Jagdish Prasad (PW.8), Investigating
Officer, the appellants cannot seek any benefit of such omission or
error by the prosecution in conducting of trial.
13. This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwantbuva
(Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 dealt with the issue raised
herein observing as under:
“31. Furthermore, there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise
any doubt as regards the correctness of the statement of a
witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part of
it, which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this
provision stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon any
doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.”
(See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC
3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425;
Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and Gian Chand
& Ors. v. State of Haryana, JT 2013 (10) SC 515).
14. In the matter of appreciation of evidence of witnesses, it is
not the number of witnesses but quality of their evidence which is
important, as there is no requirement under the Law of Evidence that
any particular number of witnesses is to be examined to prove/disprove
a fact. It is a time- honoured principle that evidence must be weighed
and not counted. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy or otherwise. The legal system has
laid emphasis on value provided by each witness, rather than the
multiplicity or plurality of witnesses. It is quality and not
quantity, which determines the adequacy of evidence as has been
provided by Section 134 of the Evidence Act. Even in Probate cases,
where the law requires the examination of at least one attesting
witness, it has been held that production of more witnesses does not
carry any weight. Thus, conviction can even be based on the testimony
of a sole eye witness, if the same inspires confidence. (Vide:
Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @
Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar
Mondal v. State of West Bengal AIR 2010 SC 3638; Mahesh & Anr. v.
State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh & Ors. v.
State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State of
Haryana JT 2013( 1) SC 222).
15. If the prosecution had not examined the Panchnama witnesses and
witnesses to the arrest memos of the appellants, the appellants could
have examined them in their defence.
16. The prosecution has successfully established the involvement of
the appellants in the crime and the manner in which the crime has been
committed establishes the conspiracy. The appellants in their
statement under Section 313 Cr.P.C. did not furnish any satisfactory
explanation of the circumstances under which they were present at the
place of occurrence. More so, the manner in which they fled away
after the commission of the crime clearly indicates their involvement
in the offence to conduct a conspiracy. Gopal Prasad Sinha (PW.7) has
no enmity with either of the appellants and there was no reason for
him to involve them falsely in such a heinous crime.
17. Thus, the trial court after appreciating the evidence recorded
the findings of fact regarding the presence of the appellants at the
place of occurrence as well as the presence of Dr. Gopal Prasad Sinha
(PW.7). The said witness was well acquainted with all the accused and
particularly the appellants. He had seen them alongwith Binod Kumar
(accused) gathering all the accused at the place of occurrence. Some
of the accused persons particularly Gulam Sarbar engaged and used to
sit together in a gumti and have tea there. A conspiracy was hatched
by Binod Kumar (accused) as Sant Kumar Sinha (deceased) had created
problems in his family life as well as in his business because the
deceased did not like the illicit relationship between Binod Kumar
(accused) and Shipra Sen Choudhery. The manner in which the crime was
committed it seems that it was a pre-planned murder. There was
sufficient light in the nearby building Nirankari Bhavan at the time
of commission of the offence. There was no material contradiction,
embellishment or improvement in the deposition of Dr. Gopal Prasad
Sinha (PW.7). The defence though examined three witnesses but none of
them was relevant for their purpose.
The trial court acquitted Dhiren Mahto of the charges under
Section 27 of the Arms Act giving cogent reasons.
18. The High Court reappreciated the evidence and upheld the
findings of facts recorded by the trial court observing that the
ocular evidence was in consonance and in conformity with the medical
evidence and it was a clear cut case of conspiracy.
The High Court
rightly observed that normally the perpetrator of crime in a case of
conspiracy does not take part in the execution rather such conspirator
hires some criminal directly or indirectly to execute the evil design
planned by him.
There may be circumstances where the conspirator
remains vigilant to conceal his identity and would not disclose the
actual motive behind the conspiracy.
19. Thus, we do not see any reason for interfering that the
prosecution witnesses have deposed falsely to implicate the
appellants.
20. Thus, in view of the above, the facts and circumstances of these
appeals do not warrant interference. The appeals lack merit and are
dismissed accordingly.
….………………..........J. (DR.
B.S. CHAUHAN)
…...................................J.
(S.A. BOBDE)
NEW DELHI;
October 7, 2013
-----------------------
19
Criminal Conspiracy =
The essential ingredients of Criminal Conspiracy are
(i) an agreement between two or more persons;
(ii) 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.
What is,
therefore, necessary is to show meeting of minds of two or more
persons for doing or causing to be done an illegal act or an act by
illegal means.
Mere knowledge or discussion or generation of a crime
in the mind of the accused, is not sufficient to constitute an
offence.
The offence takes place with the meeting of minds even if
nothing further is done.
It is an offence independent of other
offences and punishable separately.
Thus, the prosecution is required
to establish the offence by applying the same legal principles which
are otherwise applicable for the purpose of proving criminal
misconduct on the part of an accused.
Criminal conspiracy is generally
hatched in secrecy thus direct evidence is difficult to obtain or
access.
The offence can be proved by adducing circumstantial evidence
or by necessary implication. Meeting of minds to form a criminal
conspiracy has to be proved by adducing substantive evidence in cases
where circumstantial evidence is incomplete or vague.
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 between the parties. Agreement is essential.
The High Court
rightly observed that normally the perpetrator of crime in a case of
conspiracy does not take part in the execution rather such conspirator
hires some criminal directly or indirectly to execute the evil design
planned by him.
There may be circumstances where the conspirator
remains vigilant to conceal his identity and would not disclose the
actual motive behind the conspiracy.
19. Thus, we do not see any reason for interfering that the
prosecution witnesses have deposed falsely to implicate the
appellants.
Non- examination of witness - question must be placed before I.O. =
however, no such question was
put to him as to why those witnesses were not examined. In the absence
of putting such an issue to Jagdish Prasad (PW.8), Investigating
Officer, the appellants cannot seek any benefit of such omission or
error by the prosecution in conducting of trial.
In the matter of appreciation of evidence of witnesses, it is
not the number of witnesses but quality of their evidence which is
important, as there is no requirement under the Law of Evidence that
any particular number of witnesses is to be examined to prove/disprove
a fact. It is a time- honoured principle that evidence must be weighed
and not counted. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy or otherwise. The legal system has
laid emphasis on value provided by each witness, rather than the
multiplicity or plurality of witnesses.
It is quality and not
quantity, which determines the adequacy of evidence as has been
provided by Section 134 of the Evidence Act. Even in Probate cases,
where the law requires the examination of at least one attesting
witness, it has been held that production of more witnesses does not
carry any weight. Thus, conviction can even be based on the testimony
of a sole eye witness, if the same inspires confidence.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1316 of 2012
Gulam Sarbar
…Appellant
Versus
State of Bihar (Now Jharkhand)
…Respondent
With
CRIMINAL APPEAL NO. 1967 of 2012
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned judgment
and order dated 22.3.2012 passed by the High Court of Jharkhand at
Ranchi in Criminal Appeals (DB) Nos. 273 of 1998 (R) and 262 of 1998
(R) affirming the judgment and order of conviction and sentence dated
26.8.1998 and 31.8.1998 respectively passed by the 3rd Additional
Sessions Judge, Dhanbad in Sessions Trial No. 112 of 1997, by which
and whereunder, the appellants in both these appeals stood convicted
alongwith others, namely, Binod Kumar, Asgar Mian @ Asgar Ansari,
Paiki Ramm @ Poki Ramm and Mantu Das under Sections 302 read with 120-
B of Indian Penal Code, 1860 (hereinafter referred to as the `IPC’)
and sentenced to undergo RI for life.
2. Facts and circumstances giving rise to these appeals are that:
A. As per the case of the prosecution, Dr. Gopal Prasad Sinha
(PW.7), informant/complainant was going alongwith Sant Kumar Sinha
(deceased), to Rajganj, Dhanbad on his motorcycle at about 8.00 P.M.
on 6.9.1996. When they reached near Sant Nirankari Chowk, they saw a
scooter and a motorcycle parked at the side of the road and six
persons including the appellants were standing in the close proximity
thereof, and they signalled the complainant to stop.
The complainant
stopped his motorcycle and enquired as to why they were waiting. But
within no time, Yakub Ansari and Dhiren Mahto - appellant took out
their pistols from their waist and pointed towards them and asked why
Sant Kumar Sinha (deceased) was disturbing the working of the
institute run by Binod Kumar.
They threatened Sant Kumar Sinha
(deceased) to remain away from the institute.
Sant Kumar Sinha
(deceased) asked the accused persons how they were related to running
the affairs of the institute, which led to an exchange of hot words
between the deceased and the accused persons.
Accused Asgar started
inflicting blows by means of a knife and told his companions to
complete the task for which they had come.
Immediately, Yakub opened
fire at point blank range from his revolver on the left side of the
neck of Sant Kumar Sinha (deceased) due to which the deceased
collapsed and died immediately.
The informant/complainant being scared
ran away from the place of occurrence, leaving his motorcycle at the
spot.
He met a police party to whom he narrated the incident. On the
basis of the Fardbeyan of the informant, a case under Sections 302/120-
B/379 IPC and Section 27 of the Arms Act, 1959 (hereinafter referred
to as the ‘Arms Act’) against the accused, including both the
appellants, was registered vide FIR No. 175 of 1996. Thus, the
investigation ensued accordingly.
B. After the conclusion of the investigation, a charge sheet was
filed against all the accused, showing Yakub @ Ayub as an absconder.
Accordingly, the trial vide S.T. No. 112 of 1997 commenced. The co-
accused Yakub @ Ayub was apprehended later and was tried separately
vide S.T. No. 405 of 1998.
C. In order to prove its case, the prosecution examined eight
witnesses including Mithilesh Kumar Sinha (PW.1) – real brother of the
deceased, Arvind Kumar (PW.2) – cousin of deceased, Dr. Dhiraj (PW.6),
who conducted the post-mortem examination, Dr. Gopal Prasad Sinha
(PW.7), informant/complainant and brother of deceased and Jagdish
Prasad (PW.8), the Investigating Officer.
D. The defence also examined three witnesses. Gurpreet Singh
Mittal (DW.1), was examined only to prove that there was no light in
Sant Nirankari Bhawan at the relevant point of time, and further to
show that Nirankari Chowk was at a distance of about 200-250 feet away
from Nirankari Bhawan. Vijay Kumar Singh (DW.2) and Suresh Dass
(DW.3) were merely formal witnesses.
E. As per the case of the prosecution, Gulam Sarbar, appellant ran
away on Yakub’s motorcycle after the incident. He was chased by the
police and arrested at a short distance from the place of occurrence
after he jumped a police barricade.
F. Similarly, Dhiren Mahto left the place of occurrence on LML
Vespa Scooter alongwith Asgar Mian. So far as Dhiren Mahto (appellant)
is concerned, he was arrested after a few days on secret information
of his presence at Naya Bazar. At the time of raid, the said
appellant tried to run away on the scooter after seeing the police but
was chased and captured near Bartad.
G. In his statement under Section 313 of Code of Criminal
Procedure, 1973 (hereinafter referred to as `Cr.P.C.’), Gulam Sarbar
simply denied all allegations against him and even denied his presence
at the place of occurrence.
Dhirendra Chandra Mahto denied his
involvement by any means in the murder of Sant Kumar Sinha (deceased)
stating that he had nothing to do with the main accused Binod Kumar.
He was a small contractor, however, he did not deny his presence at
the place of occurrence nor that he had run away on the scooter taking
away Asgar Ansari as pillion rider.
H. After considering the material on record, the trial court vide
its judgment and order dated 31.8.1998 convicted both the appellants
under Sections 302 and 120-B IPC alongwith other accused and sentenced
as referred to hereinabove but acquitted Dhirendra Chandra Mahto of
the charge under Section 27 of the Arms Act.
I. Aggrieved, they preferred appeals alongwith others before the
High Court which stood dismissed by the impugned judgment and order
dated 22.3.2012.
Hence, these appeals.
3. Shri Amarendra Sharan, learned senior counsel appearing on
behalf of Gulam Sarbar and Shri Ashok K. Srivastava, learned senior
counsel appearing on behalf of Dhiren Mahto, have submitted that
there
is no material on record to prove the existence of a conspiracy to
kill Sant Kumar Sinha (deceased); none of these appellants was
involved in the affairs of the institute for which there was some
dispute between Sant Kumar Sinha (deceased) and Binod Kumar (accused).
In fact, both of them had been running a institute jointly and one
Shipra Sen Choudhery was working as a clerk in the institute with whom
Binod Kumar (accused) developed illicit relationship which was not
liked by Sant Kumar Sinha (deceased), who tried to persuade Binod
Kumar (accused) not to continue that relationship but he was not
willing to give up the same.
Sant Kumar Sinha (deceased) also informed
the wife of Binod Kumar (accused) about this relationship and there
was a quarrel between Shipra Sen Choudhery and Binod Kumar’s wife over
the same. Earlier, Binod Kumar had opened a new institute and made
Shipra Sen Choudhery its Director.
However, none of these appellants
were involved in the entire episode. Even the arrest of Gulam Sarbar
from a place near to the place of incident is doubtful. Had it been
so, the FIR which was registered after the arrest of Gulam Sarbar,
would contain such facts. Even the general diary did not mention what
the distance was between the police station and the place from where
Gulam Sarbar, appellant, was arrested. The investigation had not been
conducted properly and fairly.
The witnesses, particularly, Mithilesh
Kumar Sinha (PW.1) and Arvind Kumar (PW.2) not being eye-witnesses
could not be relied upon. No independent witness was examined by the
prosecution to prove the arrest of any of the appellants nor to prove
alleged recoveries of the motor cycle and the scooter in the case.
The prosecution case is based on speculation and conjecture thus, the
appeals deserve to be allowed and the judgment and order of the courts
below are liable to be set aside.
4. Per contra, Shri Ratan Kumar Choudhuri and Shri Krishnanand
Pandeya, learned counsel appearing on behalf of the State, opposed
both these appeals contending that there are concurrent findings of
facts and that both accused persons were well acquainted with Binod
Kumar, the main accused, and had been seen by the witnesses and
particularly by Dr. Gopal Prasad Sinha (PW.7) in the institute owned
by Binod Kumar, accused, prior to the incident.
Their presence on the
spot and the manner in which they had parked their vehicles and
stopped the motorcycle on which the complainant and deceased were
travelling is enough to prove the conspiracy.
There is no improvement
or embellishment in the case of the prosecution against any individual
accused. The evidence has rightly been appreciated by the courts
below and ocular evidence is corroborated by the medical evidence.
Thus, the appeals lack merit and are liable to be dismissed.
5. The essential ingredients of Criminal Conspiracy are
(i) an agreement between two or more persons;
(ii) 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.
What is,
therefore, necessary is to show meeting of minds of two or more
persons for doing or causing to be done an illegal act or an act by
illegal means.
Mere knowledge or discussion or generation of a crime
in the mind of the accused, is not sufficient to constitute an
offence.
The offence takes place with the meeting of minds even if
nothing further is done.
It is an offence independent of other
offences and punishable separately.
Thus, the prosecution is required
to establish the offence by applying the same legal principles which
are otherwise applicable for the purpose of proving criminal
misconduct on the part of an accused.
Criminal conspiracy is generally
hatched in secrecy thus direct evidence is difficult to obtain or
access.
The offence can be proved by adducing circumstantial evidence
or by necessary implication. Meeting of minds to form a criminal
conspiracy has to be proved by adducing substantive evidence in cases
where circumstantial evidence is incomplete or vague.
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 between the parties. Agreement is essential.
(Vide: Kehar
Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883; State (NCT of
Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820; Mir Nagvi
Askari v. CBI, AIR 2010 SC 528; Baldev Singh v. State of Punjab,
(2009) 6 SCC 564; State of M.P. v. Sheetla Sahai & Ors., (2009) 8 SCC
617; R. Venkatkrishnan v. CBI, AIR 2010 SC 1812; and S.Arul Raja v.
State of T.N., (2010) 8 SCC 233).
6. In Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh & Anr. v. CBI,
(2008) 15 SCC 49, it was held that in order to come under this
provision it is not necessary for the accused to know the detailed
stages of conspiracy; mere knowledge of main object/ purpose of the
conspiracy would suffice for this Section.
Similarly, in Vikram Singh & Ors. v. State of Punjab, AIR 2010
SC 1007, this Court dealt with a case where the accused had purchased
fortwin injection and chloroform. Thus, it was held that since the
purchase of these materials was an initial step towards commission of
offence, the presence of co-accused Sonia, though not referred to by
the witnesses at the time of actual kidnapping would not imply that
she was not privy to conspiracy and conviction of the accused under
Section 120-B IPC was upheld.
7. The evidence on record and particularly the deposition of Dr.
Gopal Prasad Sinha (PW.7) clearly depicts the conspiracy from the
manner in which the appellants and other accused were present on the
crossing and stopped the complainant and the deceased.
Admittedly,
there was rivalry and ill-will between Binod Kumar (accused) and Sant
Kumar Sinha (deceased) as they had separated their business of
running of educational institution and Sant Kumar Sinha did not like
the illicit relationship between Binod Kumar (accused) and Shipra Sen
Choudhery, Clerk.
Sant Kumar Sinha (deceased) tried to persuade Binod
Kumar (accused) to desist from the said illicit relationship and Sant
Kumar Sinha (deceased) also revealed this fact to the wife of Binod
Kumar (accused) and there was not only a verbal fight between the wife
of Binod Kumar and Shipra Sen Choudhery but also a scuffle between
them on this issue and, subsequently, the wife of Binod Kumar began
living separately.
Therefore, relations between Binod Kumar (accused)
and Sant Kumar Sinha (deceased) had definitely been strained.
8. Both these appellants and other accused were acquainted with
Binod Kumar (accused) as well as Sant Kumar Sinha (deceased) and were
also known to Dr. Gopal Prasad Sinha (PW.7). They had been seen
earlier in the institute with Binod Kumar (accused).
9. The evidence of Dr. Gopal Prasad Sinha (PW.7) that Gulam Sarbar
had run away with the accused Yakub @ Ayub on black coloured Kawasaki
motorcycle and had been arrested within a close vicinity of the place
of incident, though Yakub successfully escaped, inspires confidence.
The names of the appellants and other accused had been mentioned in
the FIR. In such a fact-situation, not mentioning that Gulam Sarbar
had been arrested in the FIR is of no significance.
The LML Vespa
Scooter BR17-B-4455 used in the crime was seized in the presence of
independent witnesses, namely, Sunil Mandal and Santosh Vikral. The
seizure memo was prepared on which both the said panch witnesses put
their signatures. The same was marked as Exhibit 6-1 and was proved by
Jagdish Prasad (PW.8), Investigating Officer.
In respect of the
arrest of Gulam Sarbar, Jagdish Prasad (PW.8) has clearly deposed that
he was inspecting small vehicles in front of the police station
alongwith Constable Badre Alam at about 20.05 hrs., when he saw two
persons on one black coloured Kawasaki motorcycle crossing the barrier
at a very high speed.
They were given signal to stop but they did not
stop. On the contrary, they pushed the barrier and fled away on which
Jagdish Prasad (PW.8) and Constable Badre Alam chased them. Gulam
Sarbar jumped from the motorcycle near Bartand Pulia and tried to flee
but was controlled and captured by them and upon interrogation, he
revealed that Yakub was the person who had run away on the motorcycle.
Jagdish Prasad (PW.8) I.O. received secret information that the
motorcycle used in the crime had been hidden in the house of Yakub
(accused).
A search was conducted of his house in presence of two
independent witnesses, namely, Muslim Ansari and Bhagirath Razak and
the same was recovered. A seizure memo was prepared and was signed by
the said two witnesses. The said seizure memo was marked as Exhibit -
6 and proved by Jagdish Prasad (PW.8), Investigating Officer.
10. Jagdish Prasad (PW.8) deposed that he received secret
information about the whereabouts of the appellant Dhiren Mahto and he
conducted raid at Naya Bazar alongwith other police officials and
Constable Badre Alam. Though he tried to escape, he was apprehended
and arrested and LML Vespa Scooter BR 17-B-4455 was recovered.
The
arrest memo and recovery memo of the scooter was prepared in the
presence of independent witnesses namely, Sunil Mandal and Santosh
Vikral and the seizure memo was signed by the said witnesses. The same
was marked as Exhibit 6-1 and was proved by him.
It was at a later stage that the other accused were arrested.
11. Learned senior counsel appearing on behalf of the appellants
have submitted that neither the witness of arrest memo of either of
the appellants nor the panch witness of the recovery of scooter and
motor cycle used in the crime has been examined by the prosecution.
Even the police Constable Badre Alam who accompanied Jagdish Prasad
(PW.8) I.O. at the time of arrest of Gulam Sarbar has not been
examined. Therefore, the case of arrest of the appellants as well as
the recovery of the vehicles is not worth acceptance and the whole
case of the prosecution becomes doubtful.
12. We had been taken through the entire deposition of Jagdish
Prasad (PW.8), Investigating Officer, however, no such question was
put to him as to why those witnesses were not examined. In the absence
of putting such an issue to Jagdish Prasad (PW.8), Investigating
Officer, the appellants cannot seek any benefit of such omission or
error by the prosecution in conducting of trial.
13. This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwantbuva
(Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 dealt with the issue raised
herein observing as under:
“31. Furthermore, there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise
any doubt as regards the correctness of the statement of a
witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part of
it, which has been objected to by the other party, as being
untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this
provision stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon any
doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.”
(See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC
3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425;
Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and Gian Chand
& Ors. v. State of Haryana, JT 2013 (10) SC 515).
14. In the matter of appreciation of evidence of witnesses, it is
not the number of witnesses but quality of their evidence which is
important, as there is no requirement under the Law of Evidence that
any particular number of witnesses is to be examined to prove/disprove
a fact. It is a time- honoured principle that evidence must be weighed
and not counted. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy or otherwise. The legal system has
laid emphasis on value provided by each witness, rather than the
multiplicity or plurality of witnesses. It is quality and not
quantity, which determines the adequacy of evidence as has been
provided by Section 134 of the Evidence Act. Even in Probate cases,
where the law requires the examination of at least one attesting
witness, it has been held that production of more witnesses does not
carry any weight. Thus, conviction can even be based on the testimony
of a sole eye witness, if the same inspires confidence. (Vide:
Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @
Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar
Mondal v. State of West Bengal AIR 2010 SC 3638; Mahesh & Anr. v.
State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh & Ors. v.
State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State of
Haryana JT 2013( 1) SC 222).
15. If the prosecution had not examined the Panchnama witnesses and
witnesses to the arrest memos of the appellants, the appellants could
have examined them in their defence.
16. The prosecution has successfully established the involvement of
the appellants in the crime and the manner in which the crime has been
committed establishes the conspiracy. The appellants in their
statement under Section 313 Cr.P.C. did not furnish any satisfactory
explanation of the circumstances under which they were present at the
place of occurrence. More so, the manner in which they fled away
after the commission of the crime clearly indicates their involvement
in the offence to conduct a conspiracy. Gopal Prasad Sinha (PW.7) has
no enmity with either of the appellants and there was no reason for
him to involve them falsely in such a heinous crime.
17. Thus, the trial court after appreciating the evidence recorded
the findings of fact regarding the presence of the appellants at the
place of occurrence as well as the presence of Dr. Gopal Prasad Sinha
(PW.7). The said witness was well acquainted with all the accused and
particularly the appellants. He had seen them alongwith Binod Kumar
(accused) gathering all the accused at the place of occurrence. Some
of the accused persons particularly Gulam Sarbar engaged and used to
sit together in a gumti and have tea there. A conspiracy was hatched
by Binod Kumar (accused) as Sant Kumar Sinha (deceased) had created
problems in his family life as well as in his business because the
deceased did not like the illicit relationship between Binod Kumar
(accused) and Shipra Sen Choudhery. The manner in which the crime was
committed it seems that it was a pre-planned murder. There was
sufficient light in the nearby building Nirankari Bhavan at the time
of commission of the offence. There was no material contradiction,
embellishment or improvement in the deposition of Dr. Gopal Prasad
Sinha (PW.7). The defence though examined three witnesses but none of
them was relevant for their purpose.
The trial court acquitted Dhiren Mahto of the charges under
Section 27 of the Arms Act giving cogent reasons.
18. The High Court reappreciated the evidence and upheld the
findings of facts recorded by the trial court observing that the
ocular evidence was in consonance and in conformity with the medical
evidence and it was a clear cut case of conspiracy.
The High Court
rightly observed that normally the perpetrator of crime in a case of
conspiracy does not take part in the execution rather such conspirator
hires some criminal directly or indirectly to execute the evil design
planned by him.
There may be circumstances where the conspirator
remains vigilant to conceal his identity and would not disclose the
actual motive behind the conspiracy.
19. Thus, we do not see any reason for interfering that the
prosecution witnesses have deposed falsely to implicate the
appellants.
20. Thus, in view of the above, the facts and circumstances of these
appeals do not warrant interference. The appeals lack merit and are
dismissed accordingly.
….………………..........J. (DR.
B.S. CHAUHAN)
…...................................J.
(S.A. BOBDE)
NEW DELHI;
October 7, 2013
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