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CASE NO.:

Appeal (crl.) 357-359 of 1998

PETITIONER:

FIROZUDDIN BASHEERUDDIN & ORS.

Vs.

RESPONDENT:

STATE OF KERALA

DATE OF JUDGMENT: 20/08/2001

BENCH:

K.T. Thomas & D.P. Mohapatra

JUDGMENT:

D.P.MOHAPATRA,J.

These three appeals are directed against the common

judgment of the High Court of Kerala dated 17.10.1997 in Criminal

Appeal Nos. 167,145 and 218 of 1995. The appellants were accused

Nos. 3,4,5,7,9 and 15 in Sessions Case No.66/92 of IV Additional

Sessions Court, Ernakulam. Initially 19 persons were arrayed as

accused in the case. Three of these accused persons i.e. accused

Nos. 8,11 and 14 became approvers pursuant to the pardon granted to

them and they have been examined as PWs 1 to 3. Out of the 16

accused persons sent up for trial, eight accused i.e.Nos.

1,2,6,8,10,11,12 and 13 were absconding. The case against them was

split up and was refiled as CP No.2/92 on the file of the Chief Judicial

Magistrate, Ernakulam. The remaining eight accused persons were

tried in Sessions Case No.66/92 for offences punishable under sections

120-B, 302 read with Section 511 IPC, Section 302 read with section

120-B IPC and sections 34,109,143, 148, 201, 201 read with sections

34, 109 and 120-B and section 194 IPC and also under section 27 of

the Arms Act.

The learned Additional Sessions Judge by the judgment

dated 17.1.1995 found the appellants guilty and sentenced them to

undergo imprisonment for life under section 120-B and to undergo a

similar sentence under section 302 read with section 120-B and section

34 IPC. The appellants were also found guilty and sentenced to

undergo RI for five years under section 201 read with section 120-B and

section 34 IPC. The appellants were found not guilty of the offences

charged under different sections of the IPC and sections 25 and 27 of

the Arms Act. Accused Nos.14 and 16 were found not guilty and were

acquitted of all charges.

Against the judgment of the Sessions Court, Accused nos.7

and 9 filed criminal appeal No.145/95, Accused nos.3, 4 and 5 filed

Criminal Appeal No.167/95 and Accused no.15 filed Criminal Appeal

No.218/95. All the three appeals were dismissed by the High Court by

judgment dated 17.10.1997, which is under challenge in these appeals.

The prosecution case, shorn of unnecessary details, may be

stated thus :The first accused Abdul Rehman also known as Pakistan

Abdul Rehman is a notorious smuggler based at Dubai. He had

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engaged as his agents for smuggling, amongst others, the deceased

Hamza whose cousin he had married and Aboobacker (PW 8) offering

them compensation at the rate of Rs.25,000/- per jacket of gold

delivered at specified destinations. In one operation that was

successfully completed the first accused declined to pay the agents

Hamza and Aboobacker the amount promised and after some

bargaining paid only Rs.18,000/- per jacket. This conduct on the part of

the said accused had created a sore feeling in the minds of the two

agents mentioned above. Sometime in 1989 the first accused entrusted

one consignment of 1600 gold biscuits to Hamza and Aboobacker for

transport to Bombay. These two persons ceased the opportunity to

settle scores with the first accused and leaked out the information of

smuggling to officials of the Directorate of Revenue Intelligence (DRI).

Acting upon the information furnished by Hamza and Aboobacker the

DRI officials intercepted at Thalappady the two vehicles in which the

contraband gold was being transported from Kanhangad to Bombay

and ceased the entire consignment worth about Rs.6.02 crores. As

stated by Aboobacker (PW 8) that he and the deceased Hamza got

Rs.45 lakhs on 29.3.1989 and a further sum of Rs.48 lakhs after the

death of the latter as reward money, the first accused was greatly

enraged by the breach of trust committed by Hamza and Aboobacker

and threatened to kill them. Thereafter a criminal conspiracy was

hatched whose aftermath was the murder of Hamza. According to the

prosecution case, Hamza was shot dead at Poinachi while he was

returning from Mangalore on the night of 29.4.1989. Kasaragod Police,

after getting the telephonic message from K. Moideen Kunhi PW 13

who used to reside nearby Poinachi, swung into action, the Sub -

Inspector of Police Raj Mohan T.K. PW -87 who recorded the

information in the general diary rushed to the spot and found Hamza

riddled with bullets and lying bleeding in the drivers seat of the Maruti

car. He was immediately rushed to the Government hospital at

Kasargod. PW 64 Dr.K.P.Ali who examined the injured found him

dead. PW 87 took PW6 Narayanan Nair who was present at the scene

of incident to the Police Station and recorded his statement Exh. P22

which was stated as the FIR and Crime No.229/89 was registered.

Thereafter Jaya Prakash PW 90, Circle Inspector took

charge of the investigation. Subsequently on 1.5.1989 V. Narayanan

PW 100 Circle Inspector, Crime Branch took over the investigation.

The investigation was also handled by P.E. Bhaskara Kurup Deputy

S.P. (PW 101) Special Investigation team. Subsequently the

investigation was taken over by Varghese P. Thomas, Dy. Supdt of

Police, CBI(PW 107) from PW 101 by order of the DIG CBI dated

19.7.90 who on completion of the investigation filed the chargesheet

against 19 accused persons on 7.1.1992. As noticed earlier, after

excluding the three accused persons who turned approvers, 16 were

sent up for trial and after deleting the 8 absconding accused the

remaining eight accused Nos. 3,5,7,9,14,15 and 16 stood the trial.

All the accused persons pleaded not guilty to the charges.

They denied their involvement in the case altogether and alleged that

they were falsely implicated in the case.

The learned trial Judge in his judgment, which covers 115

pages, has discussed in great detail the entire genesis of the case

starting from the time when the deceased had cordial relationship with

the accused; the smuggling activities which all of them were jointly

carrying out, how differences arose between them over the demand of

dues of the deceased and his associate by the principal accused; how

they disclosed relevant informations regarding movement of the

smuggled gold to different places to the enforcement authorities leading

to seizure of the same; the decision taken by the principal accused to

eliminate the deceased and his associate since they had proved to be

obstacles in smooth running of the business of smuggling of gold; the

various steps taken by the accused in carefully planning and organising

the operations to kill the deceased and finally the successful execution

of the plan culminating in the death of Hamza, the deceased. In para

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32 of the judgment, the learned trial Judge formulated the points arising

for determination as follows :

1. What was the cause of death of Hamza?

2. Are the accused responsible for the death of

Hamza?

3. Was there any criminal conspiracy to cause

the death of Hamza, as alleged by the

prosecution?

4. Are the accused guilty of the offence u/s.201

IPC?

5. Are the accused guilty of the offence u/s.109

IPC?

6. Are the accused guilty of the offence u/s.143

and 148 of the IPC?

7. Are the accused guilty of the offence u/s.511

r/w.S.302 IPC?

8. Are the accused guilty of the offence u/s.194

IPC?

9. Are the accused guilty of the offence u/s.25

and 27 of the Arms Act?

10. What, if any, are the offences proved against

each of the accused?

11. Sentence.

From para 33 onwards the learned trial Judge has

discussed in detail each of the points formulated by him. Dealing with

points 2 and 3, the learned trial Judge in paragraphs 34 to 135 has

closely scrutinised the evidence of PWs 7, 11, 44 and 76 and the

corroborating evidence of PWs 16, 53 and after dealing with the

contentions raised by the defence counsel for discrediting the evidence

of these witnesses, recorded his finding in para 56 to the effect that the

prosecution has succeeded in establishing that the gold which was

seized in Thappady belonged to A-1.

From para 57 onwards the learned trial Judge has

discussed in detail the various steps taken by the accused persons for

execution of the plan for elimination of Hamza and PW 8. On this part

of the case the learned trial Judge has discussed the evidence of PWs

7, 8, 11 and 44 which was relied upon by the prosecution. He has also

discussed the evidence of PW 23 who was a retired Junior

Commissioned Officer of the Army who had been hired for killing the

deceased and his associate Aboobacker -PW 8 but had failed to carry

out the task at the last moment.

In para 60 the learned trial Judge has dealt with at length

the contentions raised on behalf of the defence to attack the testimony

of PW 23 and has given cogent reasons for not accepting the same.

The learned trial Judge has also placed reliance on the documentary

evidence i.e. Exhibits P-23, 24, and 25 which were proved to be in the

handwriting of the accused persons.

From para 67 the learned trial Judge has discussed the

evidence pertaining to the incident on 29th April, 1989. On this aspect

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of the case the learned trial Judge has considered the evidence of PWs

4, 5 and 6 who were examined by the prosecution as eye-witnesses to

the incident. The learned trial Judge has very fairly pointed out the

short-comings in the evidence of PWs 4 and 6 regarding identification

of the accused persons. Regarding the evidence of PW 5 who

identified A-4, A-5 and A-15 in the test identification parade and also in

court he has given cogent reasons for accepting the evidence of PW 5

regarding identification of A-4 and A-5. In para 75 of his judgment the

learned trial Judge has dealt with the acceptability or otherwise of the

test identification parade which was held to identify A-3, A-4, A-5 by

witnesses PWs 3, 4, 5, 6, 10 and PW 31. In para 77 the learned trial

Judge rejected the contention raised by counsel for the defence that the

test identification parade was not properly conducted, as without any

basis.

About identification of the car used in committing the

murder, the learned trial Judge has discussed from para 79 onwards of

the judgment the evidence of PWs 10, 43 and 49 and the entry in the

register Exh.P-65, he has also considered the evidence of PWs 21, 22,

25, 27, 28 29, 31, 33, 35, 36, 37, 39, 70, 73 and 94, who referred to the

Fiat car, in para 95 of the judgment and the documentary evidence like

Exh.P-72 (a) and (b) which contained the registration particulars of the

vehicle. The learned trial Judge declined to accept the contention of

the defence counsel that the CBI had deliberately cooked up all the

documents to advance the prosecution case. In para 102 of the

judgment, the learned trial Judge has accepted the evidence of PW 23,

who stated about the reconnaissance of the jeep along with road in

front of Hamzas (deceased) house.

After considering the entire evidence, he held that the two

vehicles used by the assailants for the murder of Hamza were the Fiat

car bearing registration No.KLS 2226 and the jeep bearing No.CRX

1143 which were registered in fictitious names. Relying on the

evidence of PWs 21 and 22 the learned trial Judge has observed that

the complicity of A10 in the registration of the fiat car in the fictitious

names has been duly established. Summing up his observations in

para 106 of the judgment, the learned trial Judge held: the connection

between A1, A7, A9 and A15 has been proved by the witnesses. Their

complicity in various stages of the crime has also been brought out in

evidence. The presence of A5 and A6 at the scene of occurrence has

been spoken to by PW5. Similarly PW 11 has identified A3 in the jeep

on 29.4.1989 at 5.30 PM . The testimony of these witnesses indicates

that A3, A4 and A5 had also an active role in the incident.. The

learned trial Judge has also taken into consideration the contention

raised on behalf of the defence regarding non-examination of certain

persons by the prosecution and has rejected the contentions giving

cogent reasons. In para 121 of the judgment, the learned trial Judge

has recorded the finding that the testimony of PWs 88 and 89 clearly

proves that both the Magistrates have duly complied with the

requirements of S.306 Cr.P.C in tendering pardon to PWs 1 to 3 and

recording the reasons therefor.

The conspiracy angle of the case has been discussed from

para 129 onwards of the judgment. Referring to the decisions of this

Court like N.M.M.Y.Momin v. State of Maharashtra (AIR 1971 SC 885),

S.C.Bahri v. State of Bihar (AIR 1994 SC 2420), Kehar Singh & Ors.

Vs. State (Delhi Administration), 1989 Crl.L.J.1, the learned trial Judge

observed, and in our view rightly, that it is settled law that criminal

conspiracy can be proved by circumstantial evidence. Relying on the

provisions of Section 10 of the Evidence Act, the learned trial Judge

has held in para 135 of the judgment that the prosecution has

succeeded in establishing conspiracy to murder Hamza and that A3,

A4, A5, A7, A9 and A15 were responsible for the death of Hamza.

On the findings recorded, the learned trial Judge found the

said accused persons guilty of the offence under Section 302 read with

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Section 120-B and Section 34 of the IPC.

In para 136 onwards, the learned trial Judge discussed how

the involvement of the accused persons other than those found guilty

has not been established by the prosecution as beyond reasonable

doubt. The learned trial Judge also discussed about the other charges

of evidence other than those for which they have been guilty, as noted

above, and held them not guilty of such offences. In para 160 of the

judgment, the learned trial Judge held that the prosecution had not

succeeded in establishing that the accused were guilty of the offences

under Section 24 and 27 of the Arms Act.

Summing up his findings under point no.10, the learned trial

Judge found A-3, A-4, A-5, A-7, A-9 and A-15 guilty of the offence

under Section 120-B of the IPC; also found that A-3, A-4, A-5, A-7 guilty

of offence under Section 302 r/w. Section 120-B and 34 IPC. He also

found these accused persons guilty of the offence under Section 201

r/w. Section 120-B and 34 IPC. After hearing the accused persons

regarding the punishment to be imposed, the learned trial Judge

sentenced the accused persons guilty and to undergo imprisonment for

life u/s.,120-B IPC; similar sentence under Section 302 r/w.Section 120-

B and 34 IPC and to undergo RI for five years under Section 201

r/w.Section 120-B and Section 34 IPC.

The High Court, as appears from the discussions in the judgment,

has given a fresh look at the entire case, discussed the case of the

prosecution, the evidence of the material witnesses, the relevant

documents, contents whereof corroborate the oral evidence in the case

and has assessed the prosecution evidence on the touch-stone of the

genesis of the case and broad probabilities. The High Court has

considered at length how Hamza (deceased) and his associate

Aboobacker (PW 8) used to handle the movement of smuggled gold in

close association with A-1 and members of his gang. How differences

arose between them, how the informations given by them about

movement of smuggled gold to the authorities of the Directorate of

Revenue Intelligence had led to seizure of the consignment of

smuggled gold valued at more than Rs.6 crores; suspecting the

deceased and PW-8 as betrayers and deciding to eliminate them. The

High Court referred to the relevant evidence in this regard like PW-7

wife of the deceased, PW-44 a trader in Kanhangad, PW-76 an officer

of the DRI and placed reliance on the documentary evidence like

Exhibits P 26, 27, 43, 44, 45. On the discussions of the evidence on

the point, the High Court recorded the finding : The plea of issue of

estoppel was rightly repelled and we agree with the correctness of the

findings and observations in this regard in paragraphs 53 to 56 of the

judgment. We also agree that the court below was right in the light of

circumstances and the evidence of PWs 7, 8, 44, 53 and 76 that the

first accused Pakistan Abdul Rahiman was the owner of the gold that

was seized from the two cars from Thalappady and that seizure was

made possible as per the advance information, evidenced by Ext.P 27.

Thereafter the High Court has proceeded to consider in detail the

evidence of PW 8 regarding the smuggling activities which the

deceased and the witness had carried on jointly with accused no.1 and

his associates; after seizure of the consignment of gold the threat to life

given by A-1 to the deceased and the witness. In this regard the High

Court referred to the evidence of PWs 7, 8, 11, 23 and 44 and has

taken note of the part of the prosecution case that the deceased had

been kept under a sort of surveillance by some people engaged by AI

even in his house. The High Court particularly discussed the evidence

of PW 23, a retired Junior Commissioned Officer of the Army, who ran

a security agency at Bangalore; whose services were hired for a sum of

Rs.40,000/- through accused no.15 for eliminating Hamza (deceased)

and has also taken note of the said witness PW 23. However, at the

last moment he decided not to shoot Hamza(deceased). The High

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Court has also discussed the evidence of PWs 7, 8, 99 to show the role

played by A2 to 9 and 15 and the activities leading to the incident.

Regarding the question of death of Hamza the High Court

took note of the evidence of PWs 4 to 6 of whom PW 4 was declared

hostile by the prosecution. PW 5 who was living close-by and reached

the place of occurrence on hearing the explosions/gun shots identified

A4, A5 and A15 as persons who had taken part in the incident. The

High Court has cast a doubt about the acceptability of the evidence of

this witness. The shortcomings of evidence of PW-6 were also duly

taken note of by the court. The High Court agreed with the findings and

observations made in paras 68 to 78 of the judgment of the trial Court

regarding the evidence of PWs 4 to 6. Regarding the identification of

the vehicles which were used by the accused persons at different

stages of the chain of incidents, the High Court took note of the

evidence of PWs10 and 49 who had made the entries in the register

Ex.P-65 relating to vehicle KRN 5531, PW 42, 43 and the evidence of

PW 101, PW 66 and 93 and PWs 71 and 72 and endorsed the findings

recorded by the trial Court in paras 139 to 143 as based on acceptable

evidence and circumstances. In para 20 of the judgment the High

Court summed up the prosecution case and observed that it had noted

that the prosecution had established the background of the incident.

The High Court also took note of the elaborate arrangements made by

the principal accused through A-2 and A10, purchasing of the fiat car

BLD-1034 and its re-registration as KRN 5531 in a fictitious name, the

purchase of the jeep KLS 2226 from Kasargod and its re-registration as

CRX 1143 also in a fictitious name and A-3 to A-5 who are reportedly

from the underworld in Bombay and were hired for the murder; they

were identified by PW 5; that after the incident the vehicles were taken

to different places; a fiat car was traced at Goa on the information

furnished by PW 1 and was seized by PW-101 in Ex.P-96; that the jeep

was taken to Bangalore at the instance of A-7 by PW-66 and 93 whose

evidence showed the direct involvement of A-7 who paid remuneration

for taking the jeep and ultimately the jeep being sold to PWs 71 and 72

as scrap and its engine MO 84 being seized under Ex.P-106. The High

Court further observed that the role of PW 23 and Pemmayya played

at the instance of A-2 and A-15 was not without significance even if the

actual murder was not in contemplation; that the exercise sought

through them was to give a signal to the deceased of the impending

danger to his life. The High Court concluded :The several items of

evidence and circumstances established beyond doubt that there was a

criminal conspiracy to murder Hamza at the instance of the first

accused, in which A3 to 5, A7, 9 and 15, who stood trial, were involved

as co-conspirators. The High Court concluded its judgment with the

following observations/findings:

Criminal conspiracy is not easy to prove. The

conspirators invariably deliberate, plan and act in

secret over a period of time. It is not necessary that

each one of them must have actively participated in

the commission of the offence or was involved in it

from start to finish. What is important is that they

were involved in the conspiracy or in other words,

there is a combination by agreement, which may

be express or implied 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.

The court has to be satisfied that there is a

reasonable ground to believe the existence of the

conspiracy and that is a matter for judicial inference

from proved facts and circumstances. Once the

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existence of conspiracy is proved or held to exist,

no doubt on relevant evidence, every act,

declaration and writing of any one of the

conspirators referable to the common intention will

be relevant. Hearsay is not excluded if it could be

brought within the parameters of Section 10 of the

Evidence Act. From the facts and circumstances of

this case we have no doubt about the existence of

the criminal conspiracy and the participation and

involvement of A 3 to 5, A7, A9 and A15 (Firosuddin

Basheeruddin @ Firoz, Kashinath Sankar Khare @

Sankar, Nandakumar Gopinath Banker @ Nandu,

K.A.Mohammed Shaffi, Kareem Abdul Rahiman @

Abdul Rahiman and P.V.Mohammed Najeeb),

besides others (about who it is not proper to say

anything since they had not faced trial). The above

conspirators had made the necessary preparations,

equipped themselves and successfully achieved the

object of the conspiracy by the murder of Hamza.

They had also sought the evidence of commission

of the offence to disappear and to screen the

offenders. The offences under Sections 302, 120B,

201 r/w.34 I.P.C. had been established against A3

to 5, 7, 9 and 15. We uphold their conviction and

sentence as awarded on those counts and

accordingly dismiss the criminal appeals.

Section 120A of the Indian Penal Code defines Criminal

Conspiracy as follows :

When two or more persons agree to do, or

cause to be done,

(1) an illegal act,

(2) an act which is not illegal by illegal means,

such an agreement is designated a criminal

conspiracy:

Provided that no agreement except an

agreement to commit an offence shall amount to

a criminal conspiracy unless some act besides

the agreement is done by one or more parties to

such agreement in pursuance thereof.

Explanation It is immaterial whether the illegal

act is the ultimate object of such agreement, or

is merely incidental to that object.

Section 120B, which prescribes in sub-section (1) the

punishment for criminal conspiracy provides :

Whoever is a party to a criminal conspiracy to

commit an offence punishable with death,

[imprisonment for life] or rigorous imprisonment

for a term of two years or upwards, shall, where

no express provision is made in the Code for the

punishment of such a conspiracy, be punished

in the same manner as if he had abetted such

offence.

Like most crimes, conspiracy requires an act (actus reus)

and an accompanying mental state (mens rea). The agreement

constitutes the act, and the intention to achieve the unlawful objective of

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that agreement constitutes the required mental state. In the face of

modern organised crime, complex business arrangements in restraint of

trade, and subversive political activity, conspiracy law has witnessed

expansion in many forms. Conspiracy criminalizes an agreement to

commit a crime. All conspirators are liable for crimes committed in

furtherance of the conspiracy by any member of the group, regardless

of whether liability would be established by the law of complicity. To put

it differently, the law punishes conduct that threatens to produce the

harm, as well as conduct that has actually produced it. Contrary to the

usual rule that an attempt to commit a crime merges with the completed

offense, conspirators may be tried and punished for both the conspiracy

and the completed crime. The rationale of conspiracy is that the

required objective manifestation of disposition to criminality is provided

by the act of agreement. Conspiracy is a clandestine activity. Persons

generally do not form illegal covenants openly. In the interests of

security, a person may carry out his part of a conspiracy without even

being informed of the identity of his co-conspirators. Since an

agreement of this kind can rarely be shown by direct proof, it must be

inferred from circumstantial evidence of co-operation between the

accused. What people do is, of course, evidence of what lies in their

minds. To convict a person of conspiracy, the prosecution must show

that he agreed with others that together they would accomplish the

unlawful object of the conspiracy.

Another major problem which arises in connection with the

requirement of an agreement is that of determining the scope of a

conspiracy who are the parties and what are their objectives. The

determination is critical, since it defines the potential liability of each

accused. The law has developed several different models with which to

approach the question of scope. One such model is that of a chain,

where each party performs a role that aids succeeding parties in

accomplishing the criminal objectives of the conspiracy. No matter how

diverse the goals of a large criminal organisation, there is but one

objective: to promote the furtherance of the enterprise. So far as the

mental state is concerned, two elements required by conspiracy are the

intent to agree and the intent to promote the unlawful objective of the

conspiracy. It is the intention to promote a crime that lends conspiracy

its criminal cast.

Conspiracy is not only a substantive crime. It also serves

as a basis for holding one person liable for the crimes of others in cases

where application of the usual doctrines of complicity would not render

that person liable. Thus, one who enters into a conspiratorial

relationship is liable for every reasonably foreseeable crime committed

by every other member of the conspiracy in furtherance of its

objectives, whether or not he knew of the crimes or aided in their

commission. The rationale is that criminal acts done in furtherance of a

conspiracy may be sufficiently dependent upon the encouragement and

support of the group as a whole to warrant treating each member as a

causal agent to each act. Under this view, which of the conspirators

committed the substantive offence would be less significant in

determining the defendants liability than the fact that the crime was

performed as a part of a larger division of labor to which the accused

had also contributed his efforts.

Regarding admissibility of evidence, loosened standards

prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy

prosecutions any declaration by one conspirator, made in furtherance of

a conspiracy and during its pendency, is admissible against each co-

conspirator. Despite the unreliability of hearsay evidence, it is

admissible in conspiracy prosecutions. Explaining this rule, Judge Hand

said:

Such declarations are admitted upon no

doctrine of the law of evidence, but of the

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substantive law of crime. When men enter into

an agreement for an unlawful end, they

become ad hoc agents for one another, and

have made a partnership in crime. What one

does pursuant to their common purpose, all

do, and as declarations may be such acts, they

are competent against all. (Van Riper v. United

States 13 F.2d 961, 967 (2d Cir.1926).

Thus conspirators are liable on an agency theory for

statements of co-conspirators, just as they are for the overt acts and

crimes committed by their confreres.

Interpreting the provisions in Sections 120A and 120B of the

IPC, this Court in the case of Yash Pal Mittal v. State of Punjab (1977) 4

SCC 540 in para 9 at pages 543 & 544, made the following

observations :

The offence of criminal conspiracy under

Section 120-A is a distinct offence introduced for

the first time in 1913 in Chapter V-A of the Penal

Code. 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-conspirators 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. Even if some steps

are resorted to by one or two of the conspirators

without the knowledge of the others it will not

affect the culpability of those others when they

are associated with the object of the conspiracy.

The significance of criminal conspiracy under

Section 120-A is brought out pithily by this Court

in Major E.G.Barsay v. State of Bombay (1962)

2 SCR 195 thus:

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 not 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. Under the first charge the accused are

charged with having conspired to do three

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categories of illegal acts, and the mere fact that

all of them could not be convicted separately in

respect of each of the offences has no relevancy

in considering the question whether the offence

of conspiracy has been committed. They are all

guilty of the offence of conspiracy to do illegal

acts, though for individual offences all of them

may not be liable.

We are in respectful agreement with the above

observations with regard to the offence of

criminal conspiracy.

In the case of Kehar Singh and Others v. State (Delhi

Administration, (1988) 3 SCC 609, a bench of three learned Judges in

paras 271 to 276 held :

Before considering the other matters against

Balbir Singh, it will be useful to consider the

concept of criminal conspiracy under Sections

120-A and 120-B of IPC. These provisions have

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. The following passage

from Russel on Crime (12th edn., 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

the parties. Agreement is essential. Mere

knowledge, or even discussion, of the plan is

not, per se, enough.

Glanville Williams in the Criminal Law (2nd edn.

p.382) explains the proposition with an

illustration :

The question arose in an Iowa 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 (173 Eng. Reports 508)

pertinently 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

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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?

It will be thus seen that the most important

ingredient of the offence of conspiracy is the

agreement between two or more persons to do

an illegal act. The illegal act may or may not be

done in pursuance of agreement, but the very

agreement is an offence and is punishable.

Reference to Sections 120-A and 120-B IPC

would make these aspects clear beyond doubt.

Entering into an agreement by two or more

persons to do an illegal act or legal act by illegal

means is the very quintessence of the offence of

conspiracy.

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 in 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 requires

some kind of physical manifestation of

agreement. The express agreement, however,

need not be proved. Nor actual meeting of 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. Gerald

Orchard of University of Canterbury, New

Zealand explains the limited nature of this

proposition :

Although it is not in doubt that the offence

requires some physical manifestation of

agreement, it is important to note the limited

nature of this proposition. The law does not

require that the act of agreement take any

particular form and the fact of agreement may

be communicated by words or conduct. Thus, it

has been said that it is unnecessary to prove

that the parties actually came together and

agreed in terms to pursue the unlawful object :

there need never have been an express verbal

agreement, it being sufficient that there was a

tacit understanding between conspirators as to

what should be done.

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I share this opinion, but hasten to add that the

relative acts or conduct of the parties must be

conscientious and clear to mark their

concurrence as to what should be done. The

concurrence cannot be inferred by a group if

irrelevant facts artfully arranged so as to give an

appearance of coherence. The innocuous,

innocent or inadvertent events and incidents

should not enter the judicial verdict. We must

thus be strictly on our guard.

In the case of State of Maharashtra & Ors. vs. Som Nath

Thapa & Ors., (1996) 4 SCC 659, a bench of three learned Judges

observed in paras 22 24 :

As in the present case the bomb blast was a

result of a chain of actions, it is contended on

behalf of the prosecution, on the strength of this

Courts decision in Yash Pal Mittal v. State of

Punjab which was noted in para 9 of Ajay

Aggarwal case (1993)3 SCC 609 that of such a

situation there may be division of performances

by plurality of means sometimes even unknown

to one another; and in achieving the goal several

offences may be committed by the conspirators

even unknown to the others. All that is relevant

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.

Our attention is pointedly invited by Shri Tulsi to

what was stated in para 24 of Ajay Aggarwal

case wherein Ramaswamy, J. stated that the

law has developed several or different models or

techniques to broach the scope of conspiracy.

One such model is that of a chain, where each

party performs even without knowledge of the

other, a role that aides succeeding parties in

accomplishing the criminal objectives of the

conspiracy. The illustration given was what is

done in the process of procuring and distributing

narcotics or an illegal foreign drug for sale in

different parts of the globe. In such a case,

smugglers, middlemen, retailers are privies to a

single conspiracy to smuggle and distribute

narcotics. The smugglers know that the

middlemen must sell to retailers; and the

retailers know that the middlemen must buy from

importers. Thus the conspirators at one end of

the chain know that the unlawful business would

not, and could not, stop with their buyers, and

those at the other end know that it had not

begun with their settlers. The action of each has

to be considered as a spoke in the hub there

being a rim to bind all the spokes together in a

single conspiracy.

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

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use being made of the goods or services in

question may be inferred from the knowledge

itself. This apart, the prosecution has not to

establish that a particular unlawful use was

intended, so long as the goods or service in

question could not be put to any lawful use.

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."

This Court in the case of Mehbub Samsuddin Malek & Ors.

Vs. State of Gujarat, (1996) 10 SCC 480, holding the conviction of the

accused under Section 120-B of the IPC on drawing inference

regarding an agreement from the circumstances, observed in para 37:

It was, however, contended by the learned

counsel for the appellants that even if the

prosecution evidence against Appellant 1 is

believed his conviction under Section 120-B

cannot be sustained. It was contended that

when the bus started from the station Appellant 1

did not know that a communal disturbance had

taken place near Mandavi and that a mob of

Muslim boys would be standing at the entrance

of Rajpura Pole. Thus there was no scope

whatsoever for him to hatch a conspiracy with

the mob near the entrance of Rajpura Pole. It

was also submitted that Appellant 2s getting

down from the bus and going near the mob was

consistent with his innocence and in all

probability he had gone near the mob to say that

he was a Muslim and therefore he should not be

beaten. He submitted that before an accused

can be convicted under Section 120-B the

prosecution has to establish an agreement and

an agreement requires at least two persons. In

this case there is nothing on record to show that

there was an agreement between Appellant 1

and any person from that mob. In our opinion

there is no substance in this contention. The

prosecution case was that sensing some trouble

and seeing a mob of armed Muslim boys

standing at the entrance of Rajpura Pole

Appellant 1 stopped the bus just opposite

Rajpura Pole with a view to facilitate an attack on

the passengers by the said mob. In spite of the

request of passengers he did not start the bus

before the mob and had some discussion with

the persons of that mob. Thereafter the mob

came near the bus and assaulted the

passengers. That was the conspiracy alleged by

the prosecution. If really the bus had stopped

because of the mob coming in front of it then it

was not necessary for him to get down from the

bus. He could have disclosed his identify even

by remaining in the bus. In view of the evidence

of the eyewitnesses, the explanation given by

him has to be regarded as false. His conduct is

also inconsistent with his innocence. The

stopping of the bus at a place where there was

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no necessity to stop it, his getting down from the

bus and going across the road right up to the

entrance of the Rajpura Pole and talking to the

persons in the said mob leads to an irresistible

inference that he not only facilitated the attack on

the passengers by stopping the bus just opposite

the assembly to attack the passengers. Thus an

agreement between him and the said unlawful

assembly is satisfactorily established by the

prosecution and therefore his conviction under

Section 120-B IPC also deserves to be upheld.

In the case of State through Superintendent of Police,

CBI/SIT etc.etc. vs. Nalini & Ors. Etc.etc., (1999) 5 SCC 253,

discussing the principles governing the Law of Conspiracy in the case

under Sections 120-A, 120-B and 302 of IPC, Wadhwa, J., summarised

the principles in para 583 as follows :

Some of the broad principles governing the law

of conspiracy may be summarized though, as the

name implies, a summary cannot be exhaustive

of the principles.

1. Under Section 120-A IPC offence of

criminal conspiracy is committed when two or

more persons agree to do or cause to be done

an illegal act or legal act by illegal means. When

it is a legal act by illegal means overt act is

necessary. Offence of criminal conspiracy is an

exception to the general law where intent alone

does not constitute crime. It is intention to

commit crime and joining hands with persons

having the same intention. Not only the intention

but there has to be agreement to carry out the

object of the intention, which is an offence. The

question for consideration in a case is did all the

accused have the intention and did they agree

that the crime be committed. It would not be

enough for the offence of conspiracy when some

of the accused merely entertained a wish,

howsoever horrendous it may be, that offence be

committed.

2. Acts subsequent to the achieving of the

object of conspiracy may tend to prove that a

particular accused was party to the conspiracy.

Once the object of conspiracy has been

achieved, any subsequent act, which may be

unlawful, would not make the accused a part of

the conspiracy like giving shelter to an

absconder.

3. Conspiracy is hatched in private or in

secrecy. It is rarely possible to establish a

conspiracy by direct evidence. Usually, both the

existence of the conspiracy and its objects have

to be inferred from the circumstances and the

conduct of the accused.

4. Conspirators may for example, be enrolled

in a chain A enrolling B, B enrolling C, and so

on; and all will be members of a single

conspiracy if they so intend and agree, even

though each member knows only the person who

enrolled him and the person whom he enrols.

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There may be a kind of umbrella-spoke

enrolment, where a single person at the centre

does the enrolling and all the other members are

unknown to each other, though they know that

there are to be other members. These are

theories and in practice it may be difficult to tell

which conspiracy in a particular case falls into

which category. It may however, even overlap.

But then there has to be present mutual interest.

Persons may be members of single conspiracy

even though each is ignorant of the identity of

many others who may have diverse roles to play.

It is not a part of the crime of conspiracy that all

the conspirators need to agree to play the same

or an active role.

5. When two or more persons agree to

commit a crime of conspiracy, then regardless of

making or considering any plans for its

commission, and despite the fact that no step is

taken by any such person to carry out their

common purpose, a crime is committed by each

and every one who joins in the agreement.

There has thus to be two conspirators and there

may be more than that. To prove the charge of

conspiracy it is not necessary that intended

crime was committed or not. If committed it may

further help prosecution to prove the charge of

conspiracy.

6. It is not necessary that all conspirators

should agree to the common purpose at the

same time. They may join with other

conspirators at any time before the

consummation of the intended objective, and all

are equally responsible. What part each

conspirator is to play may not be known to

everyone or the fact as to when a conspirator

joined the conspiracy and when he left.

7. A charge of conspiracy may prejudice the

accused because it forces them into a joint trial

and the court may consider the entire mass of

evidence against every accused. Prosecution

has to produce evidence not only to show that

each of the accused has knowledge of the object

of conspiracy but also of the agreement. In the

charge of conspiracy the court has to guard itself

against the danger of unfairness to the accused.

Introduction of evidence against some may result

in the conviction of all, which is to be avoided.

By means of evidence in conspiracy, which is

otherwise inadmissible in the trial of any other

substantive offence prosecution tries to implicate

the accused not only in the conspiracy itself but

also in the substantive crime of the alleged

conspirators. There is always difficulty in tracing

the precise contribution of each member of the

conspiracy but then there has to be cogent and

convincing evidence against each one of the

accused charged with the offence of conspiracy.

As observed by Judge Learned Hand this

distinction is important today when many

prosecutors seek to sweep within the dragnet of

conspiracy all those who have been associated

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in any degree whatever with the main offenders.

8. As stated above it is the unlawful

agreement and not its accomplishment, which is

the gist or essence of the crime of conspiracy.

Offence of criminal conspiracy is complete even

though there is no agreement as to the means by

which the purpose is to be accomplished. It is

the unlawful agreement which is the gravamen of

the crime of conspiracy. The unlawful

agreement which amounts to a conspiracy need

not be formal or express, but may be inherent in

and inferred from the circumstances, especially

declarations, acts and conduct of the

conspirators. The agreement need not be

entered into by all the parties to it at the same

time, but may be reached by successive actions

evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy

is a partnership in crime, and that there is in

each conspiracy a joint or mutual agency for the

prosecution of a common plan. Thus, if two or

more persons enter into a conspiracy, any act

done by any of them pursuant to the agreement

is, in contemplation of law, the act of each of

them and they are jointly responsible therefor.

This means that everything said, written or done

by any of the conspirators in execution or

furtherance of the common purpose is deemed

to have been said, done or written by each of

them. And this joint responsibility extends not

only to what is done by any of the conspirators

pursuant to the original agreement but also to

collateral acts incidental to and growing out of

the original purpose A conspirator is not

responsible, however, for acts done by a co-

conspirator after termination of the conspiracy.

The joinder of a conspiracy by a new member

does not create a new conspiracy nor does it

change the status of the other conspirators, and

the mere fact that conspirators individually or in

groups perform different tasks to a common end

does not split up a conspiracy into several

different conspiracies.

10. A man may join a conspiracy by word or by

deed. However, criminal responsibility for a

conspiracy requires more than a merely passive

attitude towards an existing conspiracy. One

who commits an overt act with knowledge of the

conspiracy is guilty. And one who tacitly

consents to the object of a conspiracy and goes

along with other conspirators, actually standing

by while the others put the conspiracy into effect,

is guilty though he intends to take no active part

in the crime.

Interpreting the provisions in Sections 120A and 120B of the

IPC, this Court in the case of Saju vs. State of Kerala, (2001) 1 SCC

378 held:

To prove the charge of criminal conspiracy the

prosecution is required to establish that two or

more persons had agreed to do or caused to be

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done, an illegal act or an act which is not legal,

by illegal means. It is immaterial whether the

illegal act is the ultimate object of such crime or

is merely incidental to that object. To attract the

applicability of Section 120-B it has to be proved

that all the accused had the intention and they

had agreed to commit the crime. There is no

doubt that conspiracy is hatched in private and

in secrecy for which direct evidence would rarely

be available. It is also not necessary that each

member to a conspiracy must know all the

details of the conspiracy. This Court in Yash Pal

Mittal v. State of Punjab (1977) 4 SCC 540 held:

(SCC p.543-44, para 9)

The offence of criminal conspiracy under

Section 120-A is a distinct offence introduced for

the first time in 1913 in Chapter V-A of the Penal

Code. 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 con-conspirators 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. Even if some steps

are resorted to by one or two of the conspirators

without the knowledge of the others it will not

affect the culpability of those others when they

are associated with the object of the conspiracy.

The significance of criminal conspiracy under

Section 120-A is brought out pithily by this Court

in E.G.Barsay v. State of Bombay (1962) 2 SCR

195 (SCR at p.228) thus:

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 not 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. Under the first charge the accused are

charged with having conspired to do three

categories of illegal acts, and the mere fact that

all of them could not be convicted separately in

respect of each of the offences has no relevancy

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in considering the question whether the offence

of conspiracy has been committed. They are all

guilty of the offence of conspiracy to do illegal

acts, though for individual offences all of them

may not be liable.

We are in respectful agreement with the above

observations with regard to the offence of

criminal conspiracy.

It has thus to be established that the accused

charged with criminal conspiracy had agreed to

pursue a course of conduct which he knew was

leading to the commission of a crime by one or

more persons to the agreement, of that offence.

Besides the fact of agreement the necessary

mens rea of the crime is also required to be

established.

We have perused the judgments of both the Courts below and

considered the entire case on the touch-stone of well recognised

principles for judging a case of criminal conspiracy. The prosecution

has been able to unfold the case relating to the criminal conspiracy to

eliminate Hamza (deceased) by placing on record the chain of

circumstances. We find that both the trial Court and the High Court

discussed the relevant evidence on record taking care to exclude the

portions not acceptable and /or tenable in law. The courts below have

also been fair in discussing the contentions raised on behalf of the

defence in some detail and have given cogent reasons for rejecting the

same. We do not find that the judgments of the Courts below suffer

from any illegality in the approach to the case or any perversity in

appreciation of the evidence on record. We have no hesitation to hold

that the judgment of the High Court confirming the judgment/order of

the trial Court convicting and sentencing the appellants, does not call

for any interference. Accordingly the appeals are dismissed.

...J.

(K.T.THOMAS)

J.

(D.P.MOHAPATRA)

August 20, 2001