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CASE NO.:

Appeal (crl.) 1363 of 2003

PETITIONER:

Esher Singh

RESPONDENT:

State of Andhra Pradesh

DATE OF JUDGMENT: 15/03/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NOS.1523 and 1524/2003

ARIJIT PASAYAT,J

The matrix of these three appeals is a judgment

rendered by the III Additional Metropolitan Session Judge,

Hyderabad acting as the Designated court under the Terrorist

and Disruptive Activities (Prevention) Act, 1987 (in short

the 'TADA').

Nine persons were alleged to be responsible for

homicidal death of one Joga Singh (hereinafter referred to

as the 'deceased'). Five of them faced trial and one of them

Nishan Singh (A-3) died during the trial and therefore the

case abated so far he is concerned. The accused persons who

faced trial were Esher Singh (A-1), Nanak Singh Nishter (A-

2), Nishan Singh (A-3), Dilbagh Singh (A-4) and Rajender

Singh Dhingra (A-6). Ram Singh (A-9) absconded. Charge

sheet was filed against A-1 to A-9 for offences punishable

under Sections 120B and 302 read with Section 120B of the

Indian Penal Code, 1860 (in short the 'IPC'), Section 3(3)

of TADA and Section 27 of the Indian Arms Act, 1959 (in

short the 'Arms Act'), read with Sections 5 and 6 of TADA.

The trial Court found that accused Esher Singh,

(appellant in Crl.A. No. 1363/2003) was guilty of offence

punishable under Section 4 of TADA and while further holding

that the other allegations were not established so far as

appellant Esher Singh and other co-accused are concerned.

Esher Singh was convicted as afore-noted and sentenced to

suffer rigorous imprisonment for five years and to pay a

fine of Rs.1,000/- with default stipulation. While Esher

Singh questions legality of the conviction and sentence

imposed, the State of Andhra Pradesh has questioned

acquittal of the accused persons who faced trial, and their

non-conviction for the charged offences.

The State's appeal is numbered as Criminal Appeal

No.1524/2003. Balbir Singh son of deceased Joga Singh has

filed Criminal Appeal NO.1523/2003 with grievances similar

as that of the State of Andhra Pradesh.

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Accusations which led to the trial of the accused

persons are essentially as follows:

Accused persons conspired to kill deceased Joga Singh,

to abet terrorist and disruptive activities. Deceased had

established many educational institutions to serve Sikh

community like Gurunanak Hospital in 1969, Gurunanak Public

School Bidar in 1975, Gurunanak School at Hyderabad in 1978

and could successfully establish Gurunanak Dev Engineering

College at Bidar in August, 1980. Accused persons intended

to take over the said institutions and make a base for

Khalisthan movement. After "Operation Blue Star" which

wounded the religious feelings of Sikhs, the Pro-Khalistan

militant Sikh Students Organisation had its watchful eyes on

Sikh student population of Bidar to establish its base.

Dilbagh Singh (A-4) an activist of all India Sikh Students

Federation (AISSF) who was studying in II year in the

Gurunanak Dev Engineering College came in contact with

Deepender Singh (A-5) who was student of Regional

Engineering College, Balky. Others involved were some wanted

activists of AISSF. After proposed move of the Government of

India to have a comprehensive legislation for all

Gurudwaras, the deceased Joga Singh created a trust in the

name of Shree Nanak Jheera Sahib Trust (Foundation) and

transferred all the Educational Institutions to the trust

while delinking religious activities of the Gurudwara to

Gurudwara Nanak Jheera Sahib and Mai Bhago. Deceased

continued to be the head of both the trust and Gurudwara.

Esher Singh (A-1) who was working as Sub-Inspector of

Central Reserve Police Force left the service after

"Operation Blue Star" and started moving about in

Hyderabad City wearing Bhindranwale type garments and

organised processions carrying Bhindranwale pictures and

held Bhog ceremony at Gowliguda Gurudwara, Hyderabad. He

was making efforts to inject hatred and disaffection among

the Sikhs and could successfully take over the Barambala

Gurudwara at Rajendranagar, Attapur in Sikh Chavani and

successfully tried to bring some militant youth under his

fold and indoctrined Pro-Khalistan ideology by imparting

training to them in Shastra Vidya and Karate at Sikh Chavani

Attapur and Gowliguda. He also attempted to advocate the

said ideology in Bidar among the students. Nanak Singh

Nishter (A-2) who was president of Central Gurudwara,

Gowliguda and also an Executive Member of Shree Nanak Jhira

Sahib, Bidar, and Gurudwara Mai Bhago at Janwada was

actively assisting the deceased in his religious activities,

felt disappointed and aggrieved by his non-inclusion as

member of the Trust of Prabhandak Committee, Nanak Jheera

Trust in 1987. Nishan Singh (A-3) was residing in Bidar

since September 1987 as representative of Baba Charan Singh

who was incharge of Karseva of Kurukshetra Gurudwara.

Attempts to pursue deceased Joga Singh to transfer the Kar

Seva agreement in his name cancelling the earlier agreement

of Baba Charan Singh did not yield any result. A-1 to A-3

developed hatred against the deceased, and launched tirade

against the deceased with a view to take over the seat of

the deceased. Dilbagh Singh (A-4) a native of Amritsar and

active member of All India Sikh Student Federation, Punjab,

sought his admission in Gurunanak Dev Engineering College,

Bidar, and started enlisting students from North India into

his Pro-Khalistan activities and became close associate of

A-3. Deepender Singh (A-5), resident of Nabha, Patiala, and

student of Rural Engineering College, Bhalki which is at a

distance of 40 kms. from Bidar came in contact with A-1 and

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A-3 and was frequently visiting Dhera of Karseva. A-1 and

others were rigorously pursing their plan and propagating

Pro-Khalistan ideology among Sikh students of Bidar Rajender

Singh Dhingra (A-6) of Hind Motor Driving School and Sony

Travels and relative of A-2 is staunch supporter of A-1.

Mohinder Singh (A-7) a native of Haryana, a proclaimed

offender and terrorist of Punjab who was involved in number

of terrorist cases was also close associate of A-3. Gurmail

Singh (A-8) of Punjab is also a terrorist of Punjab and

participated in various crimes alongwith A-5, A-7 and A-9.

Ram Singh (A-9) also is a wanted terrorist of Punjab who

participated in the present occurrence.

A-1 and A-2 who were entertained for their religious

affiliation misused the same by collecting donations from

students seeking admissions in Gurunanak Dev Engineering

College, Bidar. On coming to know of the same, deceased

discarded them. Movement started by deceased to start a

Medical College heightened the tensions which was building

up with the arrival of some Sikh boys from North India.

Several non-Sikh educational institutions joined hands to

organise an agitation against granting of permission to

start medical college, because they feared that it would be

further increasing the number of Sikhs to about 1200, of

which 1000 from North India having anti-established stands.

There was organised violence and riots in September, 1988,

in which six Sikh students were killed, besides many were

injured and houses and shops of Sikhs were damaged and

burnt, besides religious institutions. A-1 to A-3 who were

waiting for an opportunity to make their inroads to contain

the growing influence of the deceased Joga Singh and also to

occupy his position, made number of visits to Bidar,

contacted A-3, A-4 and A-5 and other militant Sikhs having

Pro-Khalistan ideas for starting tirade against the deceased

Joga Singh. They also started an active propaganda that

contributions made by the Sikh community to the educational

trust were misused with a view to deprive the Sikh

community. They also accused the deceased of many

improprieties including indifference to the security of

Sikhs. At the instance of A-1 and A-2, a meeting of Sikh

community was convened on 22.9.1988 at Sikh Hostel

Narayanguda, Hyderabad to pay homage to departed souls of

students who were killed in Bidar riots. In the meeting A-1

and A-2 proposed to hold Deewan-E Aam on 2.10.88 at Bidar

Gurudwara with an ulterior motive of defaming and

excommunicating the deceased and trustees and usurp the

control of Gurudwara and the trust. A-1, A-2, A-3, A-4, A-6

and others marshalled their associates, and mustered their

strength having successfully augmented majority among the

students who attended. A-1 and A-2 gave highly inflammatory

speeches making wild allegations against the deceased and

levelling allegations of mal-administration of religious

funds of the community, made the deceased responsible for

the misery to Sikh students and accused him of having failed

in his responsibility to protect the Sikhs at Bidar. In that

way A-1 to A-3 could successfully make a dent in

establishing a base for Pro-Khalistan movement and trying to

get support of those who were openly opposing the deceased

Joga Singh. A-1 and A-2 made their own henchmen as Punj

Pyaras and imposed punishment of "Thankayya" on the

deceased and four others holding them responsible for the

death of Sikh students and for their religious impropriety.

The deceased and his supporters resisted the said move and

the matter was referred to Thakhat Such Khand Shri Hazur

Saheb, Nanded, which is considered as Southern region

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religious head of the Sikh community. Hazura Singh (DW-36)

who is one of the Punj Pyaras of Nanded Gurudwara made

enquiries from A-1 and deceased, disapproved the move of A-1

of ex-communication and imposition of punishment on the

deceased. A-1 questioned the propriety of decision taken by

Hazura Singh (DW-36), but later obeyed the religious order.

Accused persons proclaimed that they will retaliate if the

culprits are not booked before 23rd November, 1988 (i.e.

Guru Nanak Jayanthi) as a part of terrorist activity to

create terror in the minds of moderate Sikhs.

On 28.12.1988, two vehicles bearing Nos. AHS 9424 AHA

1168 which were carrying sixty ceiling fans were burnt by

mob of students in Gurudwara premises. In that regard a

case i.e. Cr. No. 422/88 U/Ss. 143, 211, 136 r/w 149 IPC was

registered at Gandhigunj P.S. of Bidar District against

unknown students in which the complicity of A-4 was strongly

suspected. A-1 and A-2 started printing, publishing and

circulating highly inflammatory, defamatory propaganda

against the deceased Joga Singh, instigating student

community against the deceased with a view to bring them

under their fold and propagate Pro-Khalistan among Sikh

community and organise an organisation, calling itself as

"SIKH COMMANDO FORCE". They threatened the Government with

dire consequences under the pretext of championing the cause

of Sikh Community.

Deceased was apprehensive of A-1 and his associates and

made earnest appeal to the authorities concerned requesting

to contain the anti-national activities, for protection and

also to take steps to contain the Pro-Khalistan activities.

As a security measure, check post was established on the

outskirts of Bidar to check the vehicles in which the Sikhs

were entering into Bidar and systematically check and

numbers noted with a view to prevent inflow of wanted Pro-

Khalistan activities and arms and ammunition. Another check

post was established at the entrance of Gurdwara, Bidar,

besides various other major steps for tightening security at

Bidar Gurudwara under charge of M. Srivastava,

Superintendent of Police, Bidar. One officer was also posted

as Personal Security Officer to the deceased with a service

revolver and ammunitions.

A-1 to A-3 intensified their war against the deceased

by abusing, threatening, intimidating him. By the end of

1988 A-1 to A-3 could successfully establish contact with

the underground dreaded terrorist Mohinder Singh (A-7) in

Nanded who was taking his shelter there. Thereafter A-7

shifted to Bidar alongwith his family and took shelter with

A-3 in his Dhera as a Kar Sevadar. A-5, A-8 and A-9 used to

frequently move in the company of Kar Sevadar alongwith A-3,

A-4 and A-7. A-8 approached Dayal Singh (PW-32), Avtar Singh

(PW-26) and other residents of Hyderabad and requested them

to join hands with them in removing deceased from being a

religious head. A-7 shifted to Hyderabad and got

accommodation through PW-26 at Hyderabad. A-1 and A-2 held

secret meetings in Kishan Bagh Chavani and made efforts to

enlist services of Sikh youth to liquidate deceased Joga

Singh. A-1, A-2, A-3, A-4, A-5 to A-9 held number of

meetings in the house of A-2.

In the month of February 1989, during the examination

of B.E. II year at G.N.D.E. College, numbers of students

including A-4 were caught while they were indulging in mal-

practices. At that time deceased refused to interfere with

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the enquiry in the matter. At that time, A-3 and A-4

nourished hatred against the deceased. A-1 to A-9 entered

into criminal conspiracy to do away with deceased. A-1 was

mastermind of conspiracy for liquidating the deceased. A-5

and A-7 were entrusted with the job of securing weapons. A-2

and A-3 provided shelter and finance for the operation, A-1

was entrusted to select youth for operation of annihilation,

while A-6 was to provide information and conveyance. A-8

and A-9 were entrusted with execution of annihilation of

deceased. In pursuance of said conspiracy, A-5 and A-9 went

to Punjab and secured A.K.47 rifles, one .32 revolver and

200 rounds of ammunition. The accused persons surveyed the

topography of proposed scene of offence and were noticed

late in the night of 29.3.89. On 24.3.89 A-1, A-7, A-8 and

A-9 alongwith Professor Darshan Singh Ragi visited Bidar

when the latter attended Keertan arranged by some devotees.

At that time, the plan of action proposed to liquidate Joga

Singh could not be executed. A-8 through A-6 secured a red

colour Maruti Car bearing Registration No. AEY 222 belonging

to PW-11 on payment of Rs.64,000/-. A-7, A-8 and A-9 visited

Bidar on 28.3.1989 in the said Maruti Car and contacted A-3,

A-4 and A-5 to track down the movements of deceased Joga

Singh. In pursuance of said criminal conspiracy, A-5, A-7,

A-8 and A-9 went to the house of deceased in the red colour

Maruti Car while A-5 was waiting in the Car. A-8 armed with

a .32 Revolver was guarding at the scene. A-7 and A-9

entered the house armed with AK.47 assault rifle. On 30.3.89

at about 21.05 hours, while PW-1 was serving dinner while

other family members of deceased were witnessing the T.V. in

the drawing-cum-dining hall, A-7 and A-9 entered into the

drawing cum dinning hall, opened fire with A.K. Assault

rifle, pumped bullets on Joga Singh who succumbed to gun

shot injuries and on seeing the same Devender Singh (PW-1)

and Balwanth Singh (PW-2) raised cries, tried to chase them,

but the A-7 and A-9 while retreating fired at them

indiscriminatively to scare them away. PW-1 chased them

upto main road and came to know through P. Satyanarayan (

PW-8) that 4 to 5 persons fled away in a red Maruti Car

towards Darussalam while scaring the public by opening fire

in the air. A-5, A-7 and A-9 returned to the house where

they were staying and tried to quit the house immediately.

Meanwhile Darshan Singh (PW-14) and others surrounded the

house in which A-5, A-7 and A-9, tried to apprehend them,

but they fled away into the dark. A-8 who made attempt to

escape on Luna bearing Registration No. AEA 1326 was

surrounded by them. He left the Luna and took to heels and

he was chased by them and on finding no way to escape, he

fired in the air to scare them and finally shot himself dead

with his Revolver.

On receipt of the complaint a case (Cr.No.63/89) under

Section 302 IPC and Sections 25 and 27 of the Arms Act was

registered, inquest was conducted over the dead body, and it

was sent for post mortem. Blood stained clothes of the

deceased, empty cartridges and spent bullets were seized

under panchanamas. Residential portion of house of A-7 was

searched and a driving license, a receipt, H.P. Gas

cylinder, clothes, utensils and other household articles

were seized. Naganath (PW-15) identified A-7 to be Mohinder

Singh alias Satwender Singh @ Satta involved in number of

terrorist cases in Punjab and Haryana. C. Narasingha Rao

(PW-47) seized the application form, reservation slip

written by A-5 for himself and A-9 for their return journey

from Delhi to Hyderabad. Subsequently A-7 was killed in an

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encounter in the intervening night of 16/17-5-1989. In that

regard also one A.K. rifle was seized from his possession

which was deposited in the Court of Judicial Magistrate of

First Class, Sangrur. A-3, A-6, and A-5 were arrested on

3.4.1989, 7.4.1989 and 20.4.1989 respectively. Confessional

statement of A-5 was recorded under TADA and A-2 and A-1

were arrested on 27.4.1989 and 11.5.1989 respectively.

The trial Court on the basis of evidence tendered by

PWs 16 and 32 as corroborated by the confessional statement

of A-5 held that the accused appellant Esher Singh had

committed the offence punishable under Section 4 of TADA. It

was concluded that A-1 was giving provocative speeches for

formation of Khalistan and was inciting violence fanning the

religious feelings. Therefore the accusations clearly

established commission of offence punishable under Section 4

of TADA. It further came to hold that the other accusations

were not established. It was noted that the two assailants

who fired the guns leading to the death of the deceased were

not identified. Since some of the statements made in Court

were not stated during investigation, the trial Court did

not attach any importance thereto.

In support of the appeal filed by accused Esher Singh,

Mr. R.K. Jain learned senior counsel submitted that the

evidence of PWs 16 and 32 do not prove the accusations. It

was not stated during investigation regarding the need for

establishing Khalistan or about the claim alleged to have

been made that the accused appellant was Deccan

Bhindrawala. Merely because he was wearing clothes of a

particular colour, that also did not establish commission of

any offence. Statements made for the first time in court

without having been told during investigation should not

have been acted upon by the trial Court. No specific

instance of the so called statements that allegedly led

communal dis-harmony or fanning of religious feelings, and

the nature of provocation alleged to have been made in the

speeches for formation of Khalistan was stated. The alleged

confessional statement could not be relied upon because A-5

who was claimed to have made the confession died on

13.4.1991, even before the charges were framed and therefore

was not admissible in law. Even otherwise, the so called

confessional statement was recorded when the custody of A-5

was illegal as was observed by the High Court of Andhra

Pradesh in Writ Petition No.14403/1989 The High Court has

categorically held that the custody was illegal for the

period between 31.3.1989 and 1.10.1989. Reference was made

to Kalpnath Rai v. State (Through CBI) (1997 (8) SCC 732) to

contend that the conclusions drawn by the trial Court were

erroneous. In essence, it was submitted that the trial Court

was not justified in convicting the accused Esher Singh.

Learned counsel for the State submitted that A-5 had

categorically stated about the involvement of A-1. Not only

PWs 16 and 32 but other witnesses i.e. PWs 1, 3, 14, 17, 19,

21 and 24 spoke in detail about the role played by various

accused persons. The evidence of PW-21 has not been

discarded and the evidence of PW-24 should not have been

dis-believed on mere surmises. The role played by accused

Esher Singh was graphically described by the prosecution

witnesses and the trial Court has noted them. Therefore, the

consideration should not have been restricted only to the

evidence of PWs 16 and 32. The pamphlet distributed were

published by A-1 and it clearly indicates what was in the

mind of accused persons regarding giving a boost to the

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Khalistan movement and creating communal disturbances and

disharmony. The evidence of certain witnesses has been

discarded on the ground of relationship, which is not the

correct approach. Merely because A-5 died before charges

were framed, that does not affect the confessional statement

which has been held to be voluntary. On the peculiar facts

of the case, when initially A-5 was not arrayed as an

accused subsequently the doubts regarding certain aspects

were set right by this Court and proceedings continued so

far as A-5 is concerned, the fact that he died before

framing of charge cannot affect the authenticity of his

confessional statement. Even if for the sake of argument it

is conceded that the same was not to be acted upon in terms

of Section 15 of TADA, yet by operation of Section 30 of the

Indian Evidence Act, 1872 (in short the 'Evidence Act') it

can be considered. Initially, the trial Court had held that

TADA had no application to the facts of this case but this

Court held that TADA applies. There is no magical charm in

the expression "charged and tried" used in Section 15 of

TADA. It can very well mean charged for trial. A person can

be treated to be charged when allegations are made and not

necessarily when charges are framed. The confession of a co-

accused is in the nature of substantive nature and Kalpnath

Rai's case (supra) has been over-ruled in State Through

Superintendent of Police,CBI/SIT v. Nalini and Ors. (1999

(5) SCC 253). The chain of circumstances were clearly

established, the car used for commission of the offence was

traced and therefore the circumstances clearly established

that the accused respondents along with others named were

responsible for the killing of deceased and therefore the

acquittal from offence relatable to Section 120B and 302

cannot be maintained. The use of the car standing near the

house of the deceased and the purchase and sale of the car

are links which have been overlooked. The circumstances like

association of an accused with others, and sharing of

common/similar animus against the deceased have been

established. A-1 and A-2 had strong animosity and motive so

far as deceased is concerned. The movement in the close

proximity of the house of deceased Joga Singh clearly brings

out the patent object and conspiracy has been well

established. According to the prosecution version, two

persons entered, fired and killed. The search for the

accused started immediately when people came running. One

person who was traveling on a Luna was chased committed

suicide. There is evidence to show that he was A-8. The

materials on record show that the deceased A-5 was connected

with accused Gurmail and this also provides an additional

link to the chain of circumstances. The motive of the crime

has been spoken to by various witnesses. The animosity of A-

1 so far as deceased is concerned is well brought out by the

evidence which shows that because of deceased's refusal to

pay money he was killed. Prior to that, he was ex-

communicated, was receiving threatening letters and was

being made responsible for the killing of six Sikh students

through riots. Significance of the statement relating to the

Blue Star Operation and the proclamation of A-1 to be Deccan

Bhindrawala are circumstances of great significance. The

deceased accused was falsely claiming to be one Mohinder

Singh, and had got an identity card in that name. But the

evidence shows that he was A-8. His presence in the car used

for get away and the evidence showing that he knew A-1

closely and that they were meeting and moving together has

been established. Ext. P-18 shows that in October 1988 there

was a demand of money. These aspects have not been properly

considered.

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The rigor of Section 15 TADA which is diluted after the

amendment has also been noted in Nalini's case (supra) and

has full application to the facts of the case. A-5 was shown

as an accused in the charge sheet. Subsequently there was an

order of discharge, which was set aside by this Court so far

as proceedings under TADA are concerned.

Learned counsel for Balbir Singh, the son of the

deceased Joga Singh adopted the submissions made by learned

counsel for the State. Additionally, according to him, the

too technical interpretation of the expression "charged and

tried" would not be in line with the legislative intent.

The Act has been enacted to take care of all terrorist

activities. Since direct evidence is hard to find because of

fear psychosis created by the accused persons and normally

people try to remain behind doors. Special provisions

relating to nature of substantive evidence have been

provided in TADA. Both learned counsel for the State and

Balbir Singh submitted that this is a fit case where Section

3(3) of TADA and offences under the IPC have been clearly

found established.

We shall first deal with the question whether

confessional statement of A-5 can be acted upon. Section 15

reads as follows:

"15. Certain confessions made to police

officers to be taken into consideration. -

(1) Notwithstanding anything in the Code or

in the Indian Evidence Act, 1872 (1 of 1872),

but subject to the provisions of this

section, a confession made by a person before

a police officer not lower in rank than a

Superintendent of Police and recorded by such

police officer either in writing or on any

mechanical device like cassettes, tapes or

soundtracks from out of which sounds or

images can be reproduced, shall be admissible

in the trial of such person or co-accused,

abettor or conspirator for an offence under

this Act or rules made thereunder :

Provided that co-accused, abettor or

conspirator is charged and tried in the same

case together with the accused.

(2) The police officer shall, before

recording any confession under sub-section

(1), explain to the person making it that he

is not bound to make a confession and that,

if he does so, it may be used as evidence

against him and such police officer shall not

record any such confession unless upon

questioning the person making it, he has

reason to believe that it is being made

voluntarily."

(Underlined for emphasis)

Crucial words in the provision are "charged and

tried". The use of the expression "charged and tried"

imposes cumulative conditions. Firstly, the two persons who

are the accused and the co-accused in the sense used by the

Legislature under Section 15, must be charged in the same

trial, and secondly, they must be tried together. Kalpnath

Rai's case (supra) has been overruled in Nalini's case

(supra) making the position clear that the confession of a

co-accused is substantive evidence.

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Section 2(b) of the Code of Criminal Procedure, 1973

(in short the 'Code') defines "charge" as follows:

"2(b) 'charge' includes any head of

charge when the charge contains more

heads than one:"

The Code does not define what a charge is. It is the

precise formulation of the specific accusation made

against a person who is entitled to know its nature at the

earliest stage. A charge is not an accusation made or

information given in abstract, but an accusation made

against a person in respect of an act committed or omitted

in violation of penal law forbidding or commanding it. In

other words, it is an accusation made against a person in

respect of an offence alleged to have been committed by

him. A charge is formulated after inquiry as distinguished

from the popular meaning of the word as implying

inculpation of a person for an alleged offence as used in

Section 224 of IPC.

Chapter XVII of the Code deals with "charge". Section

211 thereof deals with content of charge. Section 273

appearing in Chapter XXIII provides that evidence is to be

taken in presence of the accused. The person becomes an

accused for the purpose of trial after the charges are

framed. The expression used in Section 15 TADA is "charged

and tried". The question of having a trial before charges

are framed does not arise. Therefore, the only

interpretation that can be given to the expression "charged

and tried" is that the use of a confessional statement

against a co-accused is permissible when both the accused

making the confessional statement and the co-accused are

facing trial after framing of charges. In State of Gujarat

v. Mohammed Atik and Ors. (1998 (4) SCC 351) this position

was highlighted. Unless a person who charged faces trial

along with the co-accused the confessional statement of the

maker of the confession cannot be of any assistance and has

no evidentiary value as confession when he dies before

completion of trial. Merely because at some stage there was

some accusation, unless charge has been framed and he has

faced trial till its completion, the confessional statement

if any is of no assistance to the prosecution so far as the

co-accused is concerned. In fact, in para 10 in Mohammed

Atik's case (supra) it was observed that when it was

impossible to try them together the confessional statement

has to be kept out of consideration.

So far as application of Section 30 of Evidence Act is

concerned, in Nalini's case (supra) this question was

examined and it was held in paragraphs 90 and 91 as follows:

"90. But the amendment of 1993 has completely

wiped out the said presumption against a co-

accused from the statute-book. In other

words, after the amendment a Designated Court

could not do what it could have done before

the amendment with the confession of one

accused against a co-accused. Parliament has

taken away such empowerment. Then what is it

that Parliament did by adding the words in

Section 15(1) and by inserting the proviso?

After the amendment the Designated Court

could use the confession of one accused

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against another accused only if two

conditions are fulfilled :

(1) The co-accused should have been

charged in the same case along with the

confessor.

(2) He should have been tried together

with the confessor in the same case.

Before amendment the Designated Court had no

such restriction as the confession of an

accused could have been used against a co-

accused whether or not the latter was charged

or tried together with the confessor.

91. Thus the amendment in 1993 was a clear

climbing down from a draconian legislative

fiat which was in the field of operation

prior to the amendment insofar as the use of

one confession against another accused was

concerned. The contention that the amendment

in 1993 was intended to make the position

more rigorous as for a co-accused is,

therefore, untenable. "

So far as the appeal filed by accused Esher Singh is

concerned, the basic question is that even if the

confessional statement purported to have been made by A-5 is

kept out of consideration, whether residuary material is

sufficient to find him guilty. Though it is true as

contended by learned counsel for the accused-appellant Esher

Singh that some statements were made for the first time in

Court and not during investigation, it has to be seen as to

what extent they diluted the testimony of Balbeer Singh and

Dayal Singh (PWs 16 and 32) used to bring home the

accusations. A mere elaboration cannot be termed as

discrepancy. When the basic features are stated, unless the

elaboration is of such nature that it creates a different

contour or colour of the evidence, the same cannot be said

to have totally changed the complexion of the case. It is to

be noted that in addition to the evidence of PWs 16 and 32,

the evidence of S. Narayan Singh (PW-21) provides the

necessary links and strengthens the prosecution version. We

also find substance in the plea taken by learned counsel for

the State that evidence of Amar Singh Bungai (PW-24) was not

tainted in any way, and should not have been discarded and

dis-believed only on surmises. Balbeer Singh (PW-3) the son

of the deceased has also stated about the provocative

statements in his evidence. Darshan Singh (PW-14) has

spoken about the speeches of the accused Esher Singh

highlighting the Khalistan movement. We find that the trial

Court had not given importance to the evidence of some of

the witnesses on the ground that they were relatives of the

deceased. The approach is wrong. Mere relationship does not

dis-credit the testimony of a witness. What is required is

careful scrutiny of the evidence. If after careful scrutiny

the evidence is found to be credible and cogent, it can be

acted upon. In the instant case, the trial Court did not

indicate any specific reason to cast doubt on the veracity

of evidence of the witnesses whom it had described to be the

relatives of the deceased. PW-24 has categorically stated

about the provocative speeches by A-1. No definite cross-

examination on provocative nature of speech regarding

Khalistan movement was made, so far as this witness is

concerned.

Section 4 of TADA reads as under:

"4. Punishment for disruptive activities. -

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(1) Whoever commits or conspires or attempts

to commit or abets, advocates, advises, or

knowingly facilitates the commission of, any

disruptive activity or any act preparatory to

a disruptive activity shall be punishable

with imprisonment for a term which shall not

be less than five years but which may extend

to imprisonment for life and shall also be

liable to fine.

(2) For the purposes of sub-section (1),

"disruptive activity" means any action

taken, whether by act or by speech or through

any other media or in any other manner

whatsoever, -

(i) which questions, disrupts or is

intended to disrupt, whether directly or

indirectly, the sovereignty and

territorial integrity of India; or

(ii) which is intended to bring about or

supports any claim, whether directly or

indirectly, for the cession of any part

of India or the secession of any part of

India from the Union.

Explanation. - For the purposes of this sub-

section, -

(a) 'cession' includes the admission of

any claim of any foreign country to any

part of India, and

(b) 'secession' includes the assertion

of any claim to determine whether a part

of India will remain within the Union.

(3) Without prejudice to the generality of

the provisions of sub-section (2), it is

hereby declared that any action taken,

whether by act or by speech or through any

other media or in any other manner

whatsoever, which -

(a) advocates, advises, suggests or

incites; or

(b) predicts, prophesies or pronounces

or otherwise expresses, in such manner

as to incite, advise, suggest or prompt,

the killing or the destruction of an person

bound by oath under the Constitution to

uphold the sovereignty and integrity of India

or any public servant shall be deemed to be a

disruptive activity within the meaning of

this section.

(4) Whoever harbours or conceals, or attempts

to harbour or conceal, any disruptionist

shall be punishable with imprisonment for a

term which shall not be less than five years

but which may extend to imprisonment for life

and shall also be liable to fine."

The evidence makes the position crystal clear so far as

accusations against appellant Esher are concerned.

Section 4 of TADA covers a wide range of disruptive

activities. It not only encompasses commission of disruptive

activities, but also conspiracy, attempt, abetment,

advocating, advising or facilitation of such activity or an

act preparatory to such activity. What is disruptive

activity is described in sub-section (2) of Section 4. Sub-

section (3) further widens the coverage of generality given

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by sub-section (2). For the purpose of applying sub-section

(2), the explanation appended thereto assumes great

significance for the case at hand; more particularly in view

of the inclusive definition of "secession". Demand for

Khalistan is clearly encompassed by the said definition.

The ingredients necessary to bring in application of

Section 4 of TADA have been clearly established. Therefore,

the appeal filed by Esher Singh is devoid of merit and

stands dismissed as the sentence imposed is found to be

commensurate with the gravity of the offence and also needs

no interference.

Coming to the appeal filed by Balbir Singh, we shall

first deal with the objection regarding maintainability of

the appeal, as learned counsel for the accused Esher Singh

has questioned maintainability thereof.

A doubt has been raised in many cases about the

competence of a private party as distinguished from the

State, to invoke the jurisdiction of this Court under

Article 136 of the Constitution of India, 1950 (in short the

'Constitution') against a judgment of acquittal by the High

Court. We do not see any substance in the doubt. Appellate

power vested in this Court under Article 136 of the

Constitution is not to be confused with ordinary appellate

power exercised by appellate courts and appellate tribunals

under specific statutes. It is a plenary power, 'exercisable

outside the purview of ordinary law' to meet the pressing

demands of justice (See Durga Shankar Mehta v. Thakur

Raghuraj Singh (AIR 1954 SC 520). Article 136 of the

Constitution neither confers on anyone the right to invoke

the jurisdiction of this Court nor inhibits anyone from

invoking the Court's jurisdiction. The power is vested in

this Court but the right to invoke the Court's jurisdiction

is vested in no one. The exercise of the power of this Court

is not circumscribed by any limitation as to who may invoke

it. Where a judgment of acquittal by the High Court has led

to a serious miscarriage of justice this Court cannot

refrain from doing its duty and abstain from interfering on

the ground that a private party and not the State has

invoked the Court's jurisdiction. We do not have slightest

doubt that we can entertain appeals against judgments of

acquittal by the High Court at the instance of interested

private parties also. The circumstance that the Code does

not provide for an appeal to the High Court against an order

of acquittal by a subordinate Court, at the instance of a

private party, has no relevance to the question of the power

of this Court under Article 136. We may mention that in

Mohan Lal v. Ajit Singh (1978 (3) SCC 279) this Court

interfered with a judgment of acquittal by the High Court at

the instance of a private party. An apprehension was

expressed that if appeals against judgments of acquittal at

the instance of private parties are permitted there may be a

flood of appeals. We do not share the apprehension. Appeals

under Article 136 of the Constitution are entertained by

special leave granted by this Court, whether it is the State

or a private party that invokes the jurisdiction of this

Court, and special leave is not granted as a matter of

course but only for good and sufficient reasons, well

established by the practice of this Court.

Above was the view expressed by this Court in

Arunachalam v. P.S.R. Sadhanantham and Anr. (1979 (2) SCC

279). The view has again been reiterated by the Constitution

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Bench in P.S.R. Sadhanantham v. Arunachalam and Anr. (1980

(3) SCC 141).

It is to be seen whether the broad spectrum spread out

of Article 136 fills the bill from the point of view of

"procedure established by law". In express terms, Article

136 does not confer a right of appeal on a party as such but

it confers a wide discretionary power on this Court to

interfere in suitable cases. The discretionary dimension is

considerable but that relates to the power of the Court.

Article 136 is a special jurisdiction. It is residuary

power; it is extraordinary in its amplitude, its limits,

when it chases injustice, is the sky itself. This Court

functionally fulfils itself by reaching out to injustice

wherever it is and this power is largely derived in the

common run of cases from Article 136. Is it merely a power

in the court to be exercised in any manner it fancies? Is

there no procedural limitation in the manner of exercise and

the occasion for exercise? Is there no duty to act fairly

while hearing a case under Article 136, either in the matter

of grant of leave or, after such grant, in the final

disposal of the appeal? There cannot be even a shadow of

doubt that there is a procedure necessarily implicit in the

power vested in this Court. The founding fathers unarguably

intended in the very terms of Article 136 that it shall be

exercised by the judges of the highest Court of the land

with scrupulous adherence to settled judicial principles,

well established by precedents in our jurisprudence.

It is manifest that Article 136 is of composite

structure, is power-cum-procedure - power in that it vests

jurisdiction in this Court and procedure in that it spells a

mode of hearing. It obligates the exercise of judicial

discretion and the mode of hearing so characteristic of the

court process with the avowed purpose of averting

miscarriage of justice. In the instant case, both the State

and Balbir Singh (son of the deceased) have questioned

correctness of the impugned judgment. Appeal filed by Balbir

Singh is first in point of time. We are of the view that on

the facts of the case, there is no question of holding the

appeal filed by Balbir Singh to be not maintainable.

The aspects highlighted by learned counsel for the

State and Balbir Singh do not disturb the positive

conclusions of the trial Court about the absence of any

positive and cogent evidence so far as the respondents

except accused Esher Singh is concerned. None of the

witnesses examined on behalf of the prosecution stated

anything about the descriptive particulars of the

assailants. There was also no evidence of A-1 indulging in

any manner armed with firearms or explosives. The evidence

of witnesses goes only to the extent of showing, as noted

earlier that A-1 was giving provocative speeches for

formation of Khalistan and inciting the Sikhs for violence

fanning the religious feelings. The evidence shows that A-1

was inciting the Sikhs to form separate Khalistan State and

making Hyderabad as base for Khalistan movement.

Merely because the accused A-1 was holding the

deceased, as alleged, to be responsible for the killing of

six Sikh students that per se does not prove conspiracy.

Section 120B of IPC is the provision which provides for

punishment for criminal conspiracy. Definition of 'criminal

conspiracy' given in Section 120A reads as follows:

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

or cause to be done,-

(1) an illegal act, or

(2) an act which is not illegal by illegal

means, such an agreement is designated a

criminal conspiracy;

Provided that no agreement except an

agreement to commit an offence shall amount

to a criminal conspiracy unless some act

besides the agreement is done by one or more

parties to such agreement in pursuance

thereof".

The elements of a criminal conspiracy have been stated to

be: (a) an object to be accomplished, (b) a plan or scheme

embodying means to accomplish that object, (c) an agreement

or understanding between two or more of the accused persons

whereby, they become definitely committed to co-operate for

the accomplishment of the object by the means embodied in

the agreement, or by any effectual means, (d) in the

jurisdiction where the statute required an overt act. The

essence of a criminal conspiracy is the unlawful combination

and ordinarily the offence is complete when the combination

is framed. From this, it necessarily follows that unless the

statute so requires, no overt act need be done in

furtherance of the conspiracy, and that the object of the

combination need not be accomplished, in order to constitute

an indictable offence. Law making conspiracy a crime, is

designed to curb immoderate power to do mischief which is

gained by a combination of the minds. The encouragement and

support which co-conspirators give to one another rendering

enterprises possible which, if left to individual effort,

would have been impossible, furnish the ground for visiting

conspirators and abettors with condign punishment. The

conspiracy is held to be continued and renewed as to

encompass all its members wherever and whenever any member

of the conspiracy acts in furtherance of the common design.

(See: American Jurisprudence Vol.II See 23, p. 559). For an

offence punishable under section 120-B, prosecution need not

necessarily prove that the perpetrators expressly agree to

do or cause to be done illegal act; the agreement may be

proved by necessary implication. Offence of criminal

conspiracy has its foundation in an agreement to commit an

offence. A conspiracy consists not merely in the intention

of two or more, but in the agreement of two or more to do an

unlawful act by unlawful means. So long as such a design

rests in intention only, it is not indictable. When two

agree to carry it into effect, the very plot is an act in

itself, and an act of each of the parties, promise against

promise, actus contra actum, capable of being enforced, if

lawful, punishable if for a criminal object or for use of

criminal means.

No doubt in the case of conspiracy there cannot be any

direct evidence. The ingredients of offence are that there

should be an agreement between persons who are alleged to

conspire and the said agreement should be for doing an

illegal act or for doing illegal means an act which itself

may not be illegal. Therefore, the essence of criminal

conspiracy is an agreement to do an illegal act and such an

agreement can be proved either by direct evidence or by

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circumstantial evidence or by both, and it is a matter of

common experience that direct evidence to prove conspiracy

is rarely available. Therefore, the circumstances proved

before, during and after the occurrence have to be

considered to decide about the complicity of the accused.

In Halsbury's Laws of England (vide 4th Ed. Vol.11,

page 44, page 58), the English Law as to conspiracy has been

stated thus:

"Conspiracy consists in the agreement of two

or more persons to do an unlawful act, or to

do a lawful act by unlawful means. It is an

indictable offence at common law, the

punishment for which is imprisonment or fine

or both in the discretion of the Court.

The essence of the offence of conspiracy is

the fact of combination by agreement. The

agreement may be express or implied, or in

part express and in part implied. The

conspiracy arises and the offence is

committed as soon as the agreement is made;

and the offence continues to be committed so

long as the combination persists, that is

until the conspiratorial agreement is

terminated by completion of its performance

or by abandonment or frustration or however,

it may be. The actus rues in a conspiracy is

the agreement to execute the illegal conduct,

not the execution of it. It is not enough

that two or more persons pursued the same

unlawful object at the same time or in the

same place; it is necessary to show a meeting

of minds, a consensus to affect an unlawful

purpose. It is not, however, necessary that

each conspirator should have been in

communication with every other."

There is no difference between the mode of proof of the

offence of conspiracy and that of any other offence, it can

be established by direct or circumstantial evidence. (See:

Bhagwan Swarup Lal Bishan Lal etc.etc vs. State of

Maharashtra [AIR 1965 SC 682 at p.686])

It was held that the expression "in reference to

their common intention" in Section 10 is very

comprehensive and it appears to have been designedly used

to give it a wider scope than the words "in furtherance

of" in the English law; with the result, anything said,

done or written by a co-conspirator, after the conspiracy

was formed, will be evidence against the other before he

entered the field of conspiracy or after he left it.

Anything said, done or written is a relevant fact only.

"as against each of the persons believed to

be so conspiring, as well as for the purpose

of proving the existence of the conspiracy

as for the purpose of showing that any such

person was a party to it".

"In short, the section can be analysed

as follows: (1) There shall be a prima facie

evidence affording a reasonable ground for a

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court to believe that two or more persons

are members of a conspiracy; (2) if the said

condition is fulfilled, anything said, done

or written by any one of them in reference

to their common intention will be evidence

against the other; (3) anything said, done

or written by him should have been said,

done or written by him after the intention

was formed by any one of them; (4) it would

also be relevant for the said purpose

against another who entered the conspiracy

whether it was said, done or written before

he entered the conspiracy or after he left

it, and (5) it can only be used against a

co-conspirator and not in his favour."

We are aware of the fact that direct independent evidence of

criminal conspiracy may not ordinarily and is generally not

available and its existence invariably is a matter of

inference except as rare exceptions. The inferences are

normally deduced from acts of parties in pursuance of a

purpose in common between the conspirators. This Court in

V.C.Shukla v. State (Delhi Admn.) (1980 2 SCC 665) held that

to prove criminal conspiracy there must be evidence direct

or circumstantial to show that there was an agreement

between two or more persons to commit an offence. There

must be a meeting of minds resulting in ultimate decision

taken by the conspirators regarding the commission of an

offence and where the factum of conspiracy is sought to be

inferred from circumstances, the prosecution has to show

that the circumstances give rise to a conclusive or

irresistible inference of an agreement between two or more

persons to commit an offence. As in all other criminal

offences, the prosecution has to discharge its onus of

proving the case against the accused beyond reasonable

doubt. The circumstances in a case, when taken together on

their face value, should indicate the meeting of the minds

between the conspirators for the intended object of

committing an illegal act or an act which is not illegal, by

illegal means. A few bits here and a few bits there on

which the prosecution relies cannot be held to be adequate

for connecting the accused with the commission of the crime

of criminal conspiracy. It has to be shown that all means

adopted and illegal acts done were in furtherance of the

object of conspiracy hatched. The circumstances relied for

the purposes of drawing an inference should be prior in

point of time than the actual commission of the offence in

furtherance of the alleged conspiracy.

Privacy and secrecy are more characteristics of a

conspiracy, than of a loud discussion in an elevated place

open to public view. Direct evidence in proof of a

conspiracy is seldom available; offence of conspiracy can be

proved by either direct or circumstantial evidence. It is

not always possible to give affirmative evidence about the

date of the formation of the criminal conspiracy, about the

persons who took part in the formation of the conspiracy,

about the object, which the objectors set before themselves

as the object of conspiracy, and about the manner in which

the object of conspiracy is to be carried out, all this is

necessarily a matter of inference.

The provisions of Section 120A and 120B, IPC have

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brought the law of conspiracy in India in line with the

English Law by making the overt act unessential when the

conspiracy is to commit any punishable offence. The English

Law on this matter is well settled. Russell on Crime (12

Ed.Vol.I, p.202) may be usefully noted-

"The gist of the offence of conspiracy

then lies, not in doing the act, or effecting

the purpose for which the conspiracy is

formed, nor in attempting to do them, nor in

inciting others to do them, but in the

forming of the scheme or agreement between

the parties, agreement is essential. Mere

knowledge, or even discussion, of the plan is

not, per se, enough."

Glanville Williams in the "Criminal Law" (Second Ed. P.

382) states-

"The question arose in an lowa case, but it

was discussed in terms of conspiracy rather

than of accessoryship. D, who had a grievance

against P, told E that if he would whip P

someone would pay his fine. E replied that he

did not want anyone to pay his fine, that he

had a grievance of his own against P and that

he would whip him at the first opportunity. E

whipped P. D was acquitted of conspiracy

because there was no agreement for 'concert

of action', no agreement to 'co-operate'.

Coleridge, J. while summing up the case to Jury in Regina v.

Murphy [(1837) 173 ER 502 at p. 508] states:

"I am bound to tell you, that although

the common design is the root of the charge,

it is not necessary to prove that these two

parties came together and actually agreed in

terms to have this common design and to

pursue it by common means, and so to carry it

into execution. This is not necessary,

because in many cases of the most clearly

established conspiracies there are no means

of proving any such thing and neither law nor

common sense requires that it should be

proved. If you find that these two persons

pursued by their acts the same object, often

by the same means, one performing one part of

an act, so as to complete it, with a view to

the attainment of the object which they were

pursuing, you will be at liberty to draw the

conclusion that they have been engaged in a

conspiracy to effect that object. The

question you have to ask yourselves is, had

they this common design, and did they pursue

it by these common means the design being

unlawful."

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As noted above, the essential ingredient of the offence

of criminal conspiracy is the agreement to commit an

offence. In a case where the agreement is for accomplishment

of an act which by itself constitutes an offence, then in

that event no overt act is necessary to be proved by the

prosecution because in such a situation, criminal conspiracy

is established by proving such an agreement. Where the

conspiracy alleged is with regard to commission of a serious

crime of the nature as contemplated in Section 120B read

with the proviso to sub-section (2) of Section 120A, then in

that event mere proof of an agreement between the accused

for commission of such a crime alone is enough to bring

about a conviction under Section 120B and the proof of any

overt act by the accused or by any one of them would not be

necessary. The provisions, in such a situation, do not

require that each and every person who is a party to the

conspiracy must do some overt act towards the fulfillment of

the object of conspiracy, the essential ingredient being an

agreement between the conspirators to commit the crime and

if these requirements and ingredients are established, the

act would fall within the trapping of the provisions

contained in section 120B [See: S.C. Bahri v. State of Bihar

(AIR 1994 SC 2420)]

The conspiracies are not hatched in open, by their

nature, they are secretly planned, they can be proved even

by circumstantial evidence, the lack of direct evidence

relating to conspiracy has no consequence. [See: E.K.

Chandrasenan v. State of Kerala (AIR 1995 SC 1066)].

In Kehar Singh and Ors. v. The State (Delhi

Administration) [AIR 1988 SC 1883 at p. 1954], this Court

observed:

"Generally, a conspiracy is hatched in

secrecy and it may be difficult to adduce

direct evidence of the same. The prosecution

will often rely on evidence of acts of

various parties to infer that they were done

in reference to their common intention. The

prosecution will also more often rely upon

circumstantial evidence. The conspiracy can

be undoubtedly proved by such evidence direct

or circumstantial. But the court must enquire

whether the two persons are independently

pursuing the same end or they have come

together to the pursuit of the unlawful

object. The former does not render them

conspirators, but the latter does. It is,

however, essential that the offence of

conspiracy required some kind of physical

manifestation of agreement. The express

agreement, however, need not be proved. Nor

actual meeting of the two persons is

necessary. Nor it is necessary to prove the

actual words of communication. The evidence

as to transmission of thoughts sharing the

unlawful design may be sufficient. Conspiracy

can be proved by circumstances and other

materials. (See: State of Bihar v. Paramhans

[1986 Pat LJR 688]). To establish a charge of

conspiracy knowledge about indulgence in

either an illegal act or a legal act by

illegal means is necessary. In some cases,

intent of unlawful use being made of the

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goods or services in question may be inferred

from the knowledge itself. This apart, the

prosecution has not to establish that a

particular unlawful use was intended, so long

as the goods or service in question could not

be put to any lawful use. Finally, when the

ultimate offence consists of a chain of

actions, it would not be necessary for the

prosecution to establish, to bring home the

charge of conspiracy, that each of the

conspirators had the knowledge of what the

collaborator would do so, so long as it is

known that the collaborator would put the

goods or service to an unlawful use. (See:

State of Maharashtra v. Som Nath Thapa [JT

1996 (4) SC 615])

The most important ingredient of the offence being the

agreement between two or more persons to do an illegal act.

In a case where criminal conspiracy is alleged, the court

must inquire whether the two persons are independently

pursuing the same end or they have come together to pursue

the unlawful object. The former does not render them

conspirators but the latter does. For the offence of

conspiracy some kind of physical manifestation of agreement

is required to be established. The express agreement need

not be proved. The evidence as to the transmission of

thoughts sharing the unlawful act is not sufficient. A

conspiracy is a continuing offence which continues to

subsist till it is executed or rescinded or frustrated by

choice of necessity. During its subsistence whenever any

one of the conspirators does an act or series of acts, he

would be held guilty under Section 120-B IPC.

In Ajay Agarwal vs. Union of India and Ors. (JT 1993

(3) SC 203), it was held as follows:-

x x x x x x

"8.....It is not necessary that each

conspirator must know all the details of the

scheme nor be a participant at every stage.

It is necessary that they should agree for

design or object of the conspiracy.

Conspiracy is conceived as having three

elements: (1) agreement; (2) between two or

more persons by whom the agreement is

effected; and (3) a criminal object, which

may be either the ultimate aim of the

agreement, or may constitute the means, or

one of the means by which that aim is to be

accomplished. It is immaterial whether this

is found in the ultimate objects. The common

law definition of 'criminal conspiracy' was

stated first by Lord Denman in Jones' case

that an indictment for conspiracy must

"charge a conspiracy to do an unlawful act

by unlawful means" and was elaborated by

Willies, J. on behalf of the judges while

referring the question to the House of Lords

in Mulcahy v. Reg and House of Lords in

unanimous decision reiterated in Quinn v.

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Leathem:

'A conspiracy consists not merely in the

intention of two or more, but in the

agreement of two or more, to do an unlawful

act, or to do a lawful act by unlawful means.

So long as such a design rest in intention

only, it is not indictable. When two agree

to carry it into effect, the very plot is an

act in itself, and the act of each of the

parties, promise against promise, actus

contra actum, capable of being enforced, if

lawful; punishable of for a criminal object,

or for the use of criminal means.'

This Court in B.G. Barsay v. State of

Bombay held:

"The gist of the offence is an

agreement to break the law. The parties to

such an agreement will be guilty of criminal

conspiracy, though the illegal act agreed to

be done has not been done. So too, it is an

ingredient of the offence that all the

parties should agree to do a single illegal

act. It may comprise the commission of a

number of acts. Under Section 43 of the

Indian Penal Code, an act would be illegal if

it is an offence or if it is prohibited by

law."

In Yash Pal Mittal v. State of Punjab [(1977) 4 SCC 540]

the rule was laid as follows: (SCC p. 543 para 9)

"The very agreement, concert or league

is the ingredient of the offence. It is not

necessary that all the conspirators must know

each and every detail of the conspiracy as

long as they are co-participators in the main

object of the conspiracy. There may be so

many devices and techniques adopted to

achieve the common goal of the conspiracy and

there may be division of performances in the

chain of actions with one object to achieve

the real end of which every collaborator must

be aware and in which each one of them must

be interested. There must be unity of object

or purpose but there may be plurality of

means sometimes even unknown to one another,

amongst the conspirators. In achieving the

goal several offences may be committed by

some of the conspirators even unknown to the

others. The only relevant factor is that all

means adopted and illegal acts done must be

and purported to be in furtherance of the

object of the conspiracy even though there

may be sometimes misfire or overshooting by

some of the conspirators.

In Mohammad Usman Mohammad Hussain

Maniyar and Ors. v. State of Maharashtra

(1981) 2 SCC 443, it was held that for an

offence under Section 120B IPC, the

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prosecution need not necessarily prove that

the perpetrators expressly agreed to do or

cause to be done the illegal act, the

agreement may be proved by necessary

implication."

After referring to some judgments of the United States

Supreme Court and of this Court in Yash Pal Mittal's case

(supra) and Ajay Aggarwal's case (supra) the Court in State

of Maharashtra v. Som Nath Thapa (referred to in Kehar

Singh's case (supra) summarized the position of law and the

requirements to establish the charge of conspiracy, as

under: (SCC p. 668, para 24).

"24. The aforesaid decisions, weighty as

they are, lead us to conclude that to

establish a charge of conspiracy knowledge

about indulgence in either an illegal act or

a legal act by illegal means is necessary.

In some cases, intent of unlawful use being

made of the goods or services in question

may be inferred from the knowledge itself.

This apart, the prosecution has not to

establish that a particular unlawful use was

intended, so long as the goods or service in

question could not be put to nay lawful use.

Finally, when the ultimate offence consists

of a chain of actions, it would not be

necessary for the prosecution to establish,

to bring home the charge of conspiracy, that

each of the conspirators had the knowledge

of what the collaborator would do, so long

as it is known that the collaborator would

put the goods or service to an unlawful

use." [Also see State of Kerala v. P.

Sugathan and Anr. (2000 (8) SCC page 203);

and Devender Pal Singh v. State of N.C.T. of

Delhi and Anr. (2002 (5) SCC 234)]

Even in the light of the principles highlighted above

when the evidence is tested, the inevitable conclusion is

that the trial Court was justified in holding that

accusations under Section 120B were not made out so far as

the offences under IPC are concerned. So far as the motive

for the killing is concerned, the evidence is clear to the

extent that A-1 wanted removal of the deceased from the

bodies of various trusts and educational institutions and

not his removal from this world. In the absence of adequate

material to establish commission of offences punishable

under Section 302 or 302 read with Section 120B and Section

3(3), 5 and 6 of TADA and Section 27 of the Arms Act, as

rightly held to have been not established by the trial

Court, the appeals filed by the State and Balbir Singh are

without merit. In the ultimate, all the three appeals are

without merit and are dismissed.