As per case facts, two dead bodies of a truck's driver and cleaner were found after a planned theft of their truck. The appellant and co-accused were implicated in the ...
2026 INSC 598 Criminal Appeal No(s). 847 & 848 of 2014 Page 1 of 45
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL N o(s). 847 & 848 OF 2014
GOPI CHAND @ PAPPU …APPELLANT
VERSUS
STATE (NCT OF DELHI) …RESPONDENT
J U D G M E N T
MANOJ MISRA, J.
1. These two appeals impugn a common judgment
and order of the High Court of Delhi at New Delhi
1
dated 02.08.2013, whereby six appeals including two
appeals
2
of the appellant against the order(s) of trial
court in Sessions Case Nos. 25 and 25-A of 2008,
arising from FIR
3
No.300 of 1984 at P.S.
4
Civil Lines,
and FIR No.190 of 1984 at P.S. Alipur, respectively,
were dismissed. As single set of evidence was led in
both the trials, the High Court proceeded to decide
the appeals by a common impugned order. As a
result, these two appeals were heard together and are
being decided by a common judgment.
1
High Court
2
i.e., Criminal Appeal Nos. 349 and 352 of 2009
3
First Information Report
4
Police Station
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Criminal Appeal No(s). 847 & 848 of 2014
BACKGROUND FACTS
2. Two dead bodies were found under jurisdiction of
different police stations. One body was found on
13.7.1984, which gave rise to FIR No.300/ 1984 at
P.S. Civil Lines, and the other was found on
16.7.1984, which gave rise to FIR No. 190/1984 at
P.S. Alipur. FIR No.300 gave rise to Sessions Case
No.25 of 2008 whereas FIR No.190/1984 gave rise to
Sessions Case No.25-A of 2008. The dead body
concerning FIR No. 300/1984 was identified as that
of Arun Kumar. Whereas the dead body in respect of
FIR No.190 /1984 was identified as that of Jasbir.
3. Investigation revealed that the two deceased i.e.,
Arun Kumar and Jasbir were driver and cleaner
respectively of Truck No. URM 660 owned by Dayal
Chand (PW-23); and the accused had killed them to
steal the Truck.
4. On 24.7.1984, co-accused Tejpal, Kishan Lal and
Ram Chhail were arrested found sitting in Truck No.
OSC-4115. Forensic report confirmed that Truck No.
OSC-4115 was none other than stolen Truck No.
URM 660, which was later released in favour of its
owner (PW-23).
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Criminal Appeal No(s). 847 & 848 of 2014
5. On 29.7.1984, Gopi Chand (i.e., the appellant) was
arrested, and on 6.8.1984 Ashok was arrested. The
materials collected during investigation indicated
involvement of the aforesaid five persons. Out of
those five, Ashok Kumar was made an approver and
produced as PW-1 in the trial. Co-accused Ram
Chhail, elder brother of the appellant, died during
trial. The remaining three including the appellant
were convicted by the trial court in Sessions Case
Nos.25 and 25-A of 2008. In consequence, two
appeals were filed by each of the three convicts. In
total, six appeals were filed. All six appeals were
dismissed vide the common impugned order.
6. As the sentence awarded to Tejpal and Kishan Lal
has been remitted, as per policy of the State, these
two appeals espouse the cause of Gopi Chand alone.
7. The prosecution version, in a nutshell, is that the
aforesaid five persons including Ashok Kumar, who
later became approver, hatched a plan to steal a
truck. In furtherance of that plan, they hired Truck
No. URM 660 for carrying pumpkin (Kashiphal). In
execution of the plan, the driver (i.e., Arun Kumar)
and cleaner (Jasbir) were killed and the truck was
stolen.
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Criminal Appeal No(s). 847 & 848 of 2014
8. Testimony of Ashok Kumar (PW1) is the sheet
anchor of the prosecution case. He was arrested on
06.08.1984. On 09.08.1984, he moved an application
to make his statement before the Magistrate
concerned. After giving him two weeks’ time to
ruminate, on 23.08.1984 his confessional statement
was recorded under Section 164 of the Code of
Criminal Procedure, 1973
5
. On 18.10.1984, Ashok
Kumar sought pardon and offered to become an
approver. On 19.10.1984, his prayer was accepted.
Thereafter, a charge-sheet was filed on 20.10.1984.
However, since the Magistrate concerned had
committed the case without holding an enquiry as
contemplated under Section 306 of the CrPC, the
Court of Session, vide order dated 27.07.1985,
remitted the matter to the Committal Magistrate for
recording statement of Ashok Kumar. Whereafter,
statement of Ashok Kumar was recorded on three
dates i.e., 05.09.1985, 06.09.1985 and 17.09.1985,
and the defence counsel was allowed to cross -
examine him. After such enquiry, the case was again
committed to the Court of Session by the concerned
Magistrate on 20.09.1985.
9. Though there were two trials (i.e., Sessions Case
No.25 and 25-A of 2008) arising from two FIRs (i.e.,
5
CrPC
Page 5 of 45
Criminal Appeal No(s). 847 & 848 of 2014
FIR No.300 of 1984 and FIR No.190 of 1984), they
were consolidated and a single set of evidence was
led in the lead Sessions Case No.25 of 2008 which
arose out of FIR No.300 of 1984 qua dacoity and
killing of Arun Kumar (i.e., the driver).
10. In Sessions Case No.25 of 2008, arising from
FIR No. 300 of 1984, the trial court convicted Tejpal,
Gopi Chand and Kishan Lal vide judgment dated
03.03.2009 for offences punishable under Sections
302/ 396/ 201/ 120-B of the Indian Penal Code,
1860
6
and, vide order dated 7.3.2009, sentenced
them as under:
(i) Life imprisonment plus fine of Rs. 2,00,000/-
under Section 302 IPC; on default in payment
of fine, additional simple imprisonment of two
years;
(ii) Ten years rigorous imprisonment plus fine of
Rs. 50,000/- under Section 396 IPC; on
default in payment of fine, additional simple
imprisonment of one year;
(iii) Six years rigorous imprisonment plus fine of
Rs. 25,000/- for offence punishable under
Section 201 IPC; on default in payment of
6
IPC
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Criminal Appeal No(s). 847 & 848 of 2014
fine, additional simple imprisonment of six
months;
(iv) Six years rigorous imprisonment plus fine of
Rs. 25,000/- for offence punishable under
Section 120-B IPC; on default in payment of
fine, additional simple imprisonment of six
months.
All sentences were to run concurrently.
11. In Sessions Case No.25-A of 2008, arising from FIR
No.190 of 1984 qua murder of Jasbir, the aforesaid
three accused were convicted for offences punishable
under Section 302/ 201/ 120-B IPC and sentenced
similarly as in Sessions Case No.25 of 2008 for those
offences.
12. Aggrieved by the judgment and order of the Trial
Court, the appellant i.e., Gopi Chand filed two appeals
i.e., Criminal Appeal No(s). 349 of 2009 and 352 of
2009. The High Court dismissed all six appeals vide
common impugned judgment and order dated
02.08.2013.
13. We have heard Mr. A Sirajudeen, learned senior
counsel, for the appellant; and Mr. Vikramjeet Banerjee,
Additional Solicitor General, for the State (NCT of Delhi)
and perused the record.
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Criminal Appeal No(s). 847 & 848 of 2014
Submissions on behalf of appellant
14. On behalf of the appellant it was, inter alia,
submitted:
(i) The prosecution case rests on approver’s (PW-
1’s) testimony. First, it is unsafe to rely on an
approver’s testimony unless it is corroborated
in material particulars, which is lacking here.
Second, PW-1’s testimony is exculpatory in
nature, which renders his testimony
completely unreliable.
(ii) Even if the testimony of PW-1 is accepted,
commission of the offence of criminal
conspiracy to commit murder of either Arun
Kumar or Jasbir is not proved against the
appellant, therefore the punishment of
imprisonment for life awarded to the
appellant on the charge of criminal
conspiracy to commit murder is liable to be
set aside.
(iii) No separate charge of criminal conspiracy to
commit murder was framed against the
appellant; therefore, he could not have been
convicted therefor.
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Criminal Appeal No(s). 847 & 848 of 2014
(iv) Prosecution had withheld key witnesses and,
therefore, adverse inference ought to have
been drawn against the prosecution.
Submissions on behalf the State
15. Per contra, on behalf of the State it was submitted
that PW-1’s statement is inculpatory and stand s
corroborated on material particulars by various
circumstances proven on record; therefore, it was safe
to rely on his testimony. Besides, there were other
circumstances to sustain the conviction and the High
Court has dealt with all aspects in detail; therefore, by
placing reliance on the testimony of PW1, neither the
High Court nor the Trial Court committed any error. As
regards non-framing of the specific charge of criminal
conspiracy to commit murder, or of murder simpliciter,
as against the appellant, the charge framing order
indicates that the name of the appellant (i.e., Gopi
Chand) appeared along with other accused in respect of
the charge regarding conspiracy to commit murder of
Arun Kumar. In fact, the appellant had pleaded not
guilty and claimed for a trial, which is borne out from
the endorsement made by the appellant in the charge
framing order. As to how and in what circumstances
the name of the appellant was struck off from the
charge framing order qua that charge is not clear.
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Criminal Appeal No(s). 847 & 848 of 2014
Further, the appellant and other co-accused had a
common counsel who had cross -examined the
witnesses qua the charge of murder; therefore, no
prejudice had been caused to the appellant for not
framing a specific charge qua criminal conspiracy to
commit murder. Moreover, the High Court has dealt
with all these issues raised here and there appears no
palpable error in the judgment of the High Court as to
warrant an interference.
ISSUES
16. We have accorded due consideration to the rival
contentions and have perused the record. Based on the
submissions made, in our view, the following issues
arise for our consideration:
(a) Whether the testimony of PW -1 (i.e., the
approver) could form the basis of conviction of
the appellant?
(b) Whether the appellant’s conviction under
Section 302 read with Section 120 -B IPC is
sustainable?
DISCUSSION & ANALYSIS
17. Before we address the issues posited above, it is
necessary to examine the charges framed by the trial
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Criminal Appeal No(s). 847 & 848 of 2014
court and the nature of evidence led by the prosecution
to secure conviction of the accused in the two cases.
18. At this stage, we may put on record that the
numbers of the session trials, namely, 25 and 25-A of
2008, were generated on reassignment of the trials.
Prior to the reassignment, those were differently
numbered. However, since the trial court’s verdict refers
to Sessions Case Nos.25 and 25-A, we have referred to
those numbers.
Charges on which accused were tried
19. The charges were framed twice. Initially, the
charges were framed on 30.10.1985. Thereafter, they
were re-framed on 21.1.1986. To have a clear
understanding of the prosecution case, we deem it
apposite to reproduce the charge framing orders dated
30.10.1985 and 21.1.1986. On 30.10.1985, three
charges were framed, which read as under:
A. I, Mohd. Shamim, Addl. Sessions Judge, Delhi, do
hereby charge you Ram Chhail s/o Mangey Ram, Tej Pal
s/o Balu Ram, Kishan Lal s/o Chand Ram, Gopi Chand
@ Pappu s/o Mangey Ram as under:
During the period from 12.7.84 to 13.7.84 near Rajiv
Farm Burari within the jurisdiction of P.S. Civil Lines
you all (along with Ashok approver) having reasons to
believe that the offence of dacoity and murder
punishable by death have been committed , you did
cause certain evidence of the above said offence to
disappear with the intention of screening yourself from
legal punishment and thereby committed an offence
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Criminal Appeal No(s). 847 & 848 of 2014
punishable U/s 201/ 34 IPC within the cognizance of
this Court.
And, I hereby direct that you be tried by this court of
the aforesaid charge.
Sd/- ASJ/ 30.10.85
The charge has been read over and explained to the
accused and they are questioned as under:
Q. Do you plead guilty or claim trial?
Ans. I plead not guilty and claim to be tried.
(Note: Above question was repeated for each of the four
accused and answered by them identically as above,
which is confirmed by their signature including signature
of the Presiding Officer of the Court)
B. I, Mohd. Shamim, Addl. Sessions Judge, Delhi, do
hereby charge you Ram Ch hail s/o Mangey Ram and
Kishan Lal s/o Chand Ram, as under:
During the period from 12.7.84 to 13.7.84 near Rajiv
Farm Burari within the jurisdiction of P.S. Civil Lines in
furtherance of common intention you intentionally
caused the death of Arun Kumar after committing
dacoity of Truck No. URM 660 and thereby committed
the offence of murder punishable U/s 302 read with
Section 34 IPC and within the cognizance of this Court
of Session.
And, I hereby direct that you be tried by this court on
the aforesaid charge.
Sd/- ASJ/ 30.10.85
The charge has been read over and explained to the
accused persons and they are questioned as follows:
Q. Do you plead guilty or claim trial?
Ans. We plead not guilty and claim to be tried.
Sd/- Ram Chhail; Sd/- Kishan Lal; Sd/-ASJ
Dt. 30.10.85
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Criminal Appeal No(s). 847 & 848 of 2014
C. I, Mohd. Shamim, Addl. Sessions Judge, Delhi do hereby
charge you Ram Chhail s/o Mangey Ram, Tej Pal s/o
Balu Ram, Kishan Lal s/o Chand Ram, Gopi Chand @
Pappu s/o Mangay Ram as under:
During the period from 12.7.84 to 13.7.84 near
Rajiv Farm Burari within the jurisdiction of P.S. Civil
Lines you all (along with Ashok approver) committed
dacoity of Truck no. URM 660 which was at that time
in possession of Arun Kumar driver and Jasbir Singh
cleaner and that in the commission of above said
dacoity two of you committed the murder of Arun
Kumar and thereby committed an offence punishable
U/s 396 IPC and within the cognizance of this Court.
And, I hereby direct that you be tried by this
court on the aforesaid charge.
Sd/- ASJ/ 30.10.85
The charge has been read over and explained to
the accused persons and they are questioned as
under:
Q. Do you plead guilty or claim trial?
Ans. I plead not guilty and claim to be tried.
(Note: Above question was repeated for each of the
four accused and answered by them iden tically as
above, which is confirmed by their signature including
signature of the Presiding Officer of the Court)
20. On 21.1.1986, charges were reframed. The trial
was held on the reframed five charges reproduced
herein below:
A. I, Mohd. Shamim, Addl. Sessions Judge, Delhi do hereby
charge you (1) Ram Chhail and (2) Kishan Lal, as under:
During the period from 12.7.84 to 13.7.84 near Rajiv
Farm, village Burari, within the jurisdiction of P.S. Civil
Lines, in pursuance of the above said conspiracy you
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Criminal Appeal No(s). 847 & 848 of 2014
both intentionally caused the death of Arun Kumar after
committing dacoity of Truck No. URM 660 and thereby
committed an offence punishable under Section 302 IPC
read with Sec. 120-B IPC and within the cognizance of
this Court.
And, I hereby direct that you both be tried by this
Court on the aforesaid charge.
Sd/- ASJ/ 21.1.86
The charge has been read over and explained to the
accused and they are questioned as follows:
Q. Do you plead guilty or claim trial?
A. Ram Chhail: I plead not guilty and claim trial.
A. Kishan Lal: I plead not guilty and claim trial.
Sd/- Ram Chhail; Kishan Lal; ASJ
dt/- 21.1.86
B. I, Mohd. Shamim, Addl. Sessions Judge, Delhi do
hereby charge you (1) Ram Chhail, (2) Kishan Lal, (3)
Gopi Chand and (4) Tejpal, as under:
On 12.7.84 at Delhi you all along with Ashok
(approver) agreed to do the illegal act by illegal means
to commit dacoity of Truck No. URM 660 and murder
of Arun Kumar and Jasbir Singh and thereby
committed an offence punishable under Sec. 120 -B
IPC and within the cognizance of this Court.
And, I hereby direct that you all be tried by this
Court on the aforesaid charge.
Sd/- 21.1.86
The charge has been read over and explained to the
accused and they are questioned as follows:
Q. Do you plead guilty or claim trial?
A. Ram Chhail: I plead not guilty and claim
trial.
A. Krishan Lal: I plead not guilty and claim
trial.
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Criminal Appeal No(s). 847 & 848 of 2014
A. Gopi Chand: I plead not guilty and claim
trial.
A. Tej Pal: I plead not guilty and claim trial.
Sd/- Ram Chhail, Kishan Lal, Gopi Chand @
Paapu, Tej Pal and ASJ
dt/- 21.1.1986
C. I, Mohd. Shamim, Addl. Sessions Judge, Delhi do hereby
charge you (1) Ram Chhail, (2) Kishan Lal, (3) Gopi
Chand (this name was struck off) and (4) (changed
to) (3) Tejpal, as under:
During the intervening night of 12/13.7.84 in a
jungle near Hiranki village, within the jurisdiction of
P.S. Alipur, Delhi in pursuance of the conspiracy you
intentionally caused the death of Jasbir alias Kala
after committing the dacoity of Truck No. URM 660
and thereby committed an offence punishable under
Section 302 IPC read with Section 120-B IPC and
within the cognizance of this Court.
And, I hereby direct that you all be tried by this
court on the aforesaid charge.
Sd/- ASJ/ 21.1.86
The charge has been read over and explained to
the accused and they are questioned as follows:
Q. Do you plead guilty or claim trial?
A. Ram Chhail: I plead not guilty and claim
trial.
A. Kishan Lal: I plead not guilty and claim trial.
A. Gopi Chand: I plead not guilty and claim
trial.
A. Tejpal: I plead not guilty and claim trial.
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Criminal Appeal No(s). 847 & 848 of 2014
Sd/- Ram Chhail, Kishan Lal, Gopi Chand, Tejpal
and ASJ
Dt/- 21.1.86
D. I, Mohd. Shamim, Addl. Sessions Judge, Delhi do hereby
charge you (1) Ram Chhail, (2) Kishan Lal, (3) Gopi
Chand @ Pappu and (4) Tejpal, as under:
During the period from 12.7.84 to 13.7.84 near
Rajiv Farm, village Burari, within the jurisdiction of
P.S. Civil Lines, you along with Ashok (approver)
committed the dacoity of truck No. URM 660, which
was at that time in possession of Arun Kumar driver
and Jasbir Singh cleaner, in pursuance of the above
said conspiracy and thereby committed an offence
punishable under Sec. 396 IPC read with Sec. 120-B
IPC and within the cognizance of this Court.
And, I hereby direct that you will be tried by
this court on the aforesaid charge.
Sd/- ASJ
Dt/- 21.1.86
The charge has been read over and explained to
the accused and they are questioned as follows:
Q. Do you plead guilty or claim trial?
A. Ram Chhail: I plead not guilty and claim
trial.
A. Krishan Lal: I plead not guilty and claim
trial.
A. Gopi Chand: I plead not guilty and claim
trial.
A. Tejpal: I plead not guilty and claim trial.
Sd/- Ram Chhail, Kishan Lal, Gopi Chand, Tejpal,
ASJ
Dt/- 21.1.86
E. I, Mohd. Shamim, Addl. Sessions Judge, Delhi do hereby
charge you (1) Ram Chhail, (2) Kishan Lal, (3) Gopi
Chand and (4) Tejpal, as under:
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Criminal Appeal No(s). 847 & 848 of 2014
During the period from 12.7.84 to 13.7.84 you along
with Ashok (approver) near Rajiv Farm, village Burari in
the jungle of village Hiranki, within the jurisdiction of
P.S. Civil Lines and P.S. Alipur respectively, you all had
reasons to believe that the offences of dacoity and
murder, punishable by death, has been committed, you
did cause certain evidence of the aforesaid offences to
disappear with the intention of screening yourself from
illegal punishment and thereby committed an offence
punishable under Sec. 201 read with Sec. 120-B IPC
and within the cognizance of this court.
And, I hereby direct that you be tried by this court on
the aforesaid charge.
Sd/- ASJ dt/- 21.1.86
The charge has been read over and explained to the
accused and they are questioned as follows:
Q. Do you plead guilty and claim trial?
A. Ram Chhail: I plead not guilty and claim trial.
A. Kishan Lal: I plead not guilty and claim trial.
A. Gopi Chand: I plead not guilty and claim trial.
A. Tejpal: I plead not guilty and claim trial.
Sd/- Ram Chhail, Kishan Lal, Gopi Chand, Tejpal, ASJ
Dt/- 21.1.86”
Nature of the evidence led by the prosecution
21. The inculpatory evidence brought in the course of
trial is both direct as well as circumstantial. Direct
evidence comes from Ashok Kumar (PW -1) i.e., the
approver. Circumstantial evidence(s) are corroboratory
in nature. Those are, inter alia, regarding: (a) ownership
and identification of the stolen truck; (b) possession of
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Criminal Appeal No(s). 847 & 848 of 2014
the stolen truck with some of the accused; (c)
identification of the bodies of the two deceased; (d) the
two deceased being driver and cleaner of the truck; (e)
autopsy reports confirming homicidal death; and (f)
seizure /recovery of dead bodies, articles, papers, etc
corroborating the testimony of PW-1.
Issue (a) : Whether PW-1 (approver) testimony could
form the basis of conviction?
22. In the present case, on behalf of the appellant, two
points have been urged to discard the testimony of PW-
1. One, PW-1’s statement is self-exculpatory; and
second, it has not been corroborated in material
particulars. Before we consider the testimony of PW-1
(i.e., the approver), we must consider the legal
principles on the probative value of an approver’s
testimony.
Legal principles regarding Approver’s testimony
23. Ordinarily, an approver is regarded as an infamous
witness, who, on his own showing has participated in a
crime and later to save his own skin turned against his
former associates and agreed to give evidence against
them in the hope that he will be pardoned for the
offence committed by him.
7
Woodroffe and Amir Ali in
7
State of A.P. v. Cheemalapati Ganeswara Rao & Anr., 1963 SCC OnLine SC 38: AIR 1963 SC 1850
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Criminal Appeal No(s). 847 & 848 of 2014
their treatise “Law of Evidence”
8
cite three reasons as to
why accomplice evidence is considered untrustworthy:
(a) because an accomplice is likely to swear falsely to
shift the guilt from himself; (b) because an accomplice,
as a participator in crime, and consequently an immoral
person, is likely to disregard the sanctity of an oath;
and (c) because he gives his evidence under the promise
of pardon, or in the expectation of an implied pardon, if
he discloses all he knows against those with whom he
acted criminally; and his hope might lead him to favour
the prosecution.
24. Section 133
9
of the Evidence Act, 1872
10
states
that an accomplice is a competent witness against an
accused person and that a conviction is not illegal
merely because it is based upon the uncorroborated
testimony of an accomplice. However, illustration (b) to
Section 114
11
of the Evidence Act adds a note of caution
that testimony of an accomplice is unworthy of credit
unless it is corroborated in material particulars. Thus,
as a matter of practice and prudence, the testimony of
an approver may be accepted in evidence for recording
conviction of an accused person provided it receives
8
19
th
Edition, published by Lexis Nexis, Volume 4 at page 4918
9
Section 133. Accomplice. – An accomplice shall be a competent witness against an accused person;
and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice.
10
Evidence Act
11
Illustration (b) to Section 114.- The Court may presume – (b) That an accomplice is unworthy of credit,
unless he is corroborated in material particulars; …
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Criminal Appeal No(s). 847 & 848 of 2014
corroboration from direct or circumstantial evidence in
material particulars.
12
Whether the evidence of the
approver should in any given case be accepted or not
will have to be determined by applying the usual tests
such as the probability of the truth of what he has
deposed to, the circumstances in which he has come to
give evidence, whether he has made a full and complete
disclosure, whether his evidence is merely self -
exculpatory and so on and so forth. The court has, in
addition, to ascertain whether his evidence has been
corroborated sufficiently in material particulars.
13
25. On the interplay between Section 133 and
Illustration (b) to Section 114 of the Evidence Act, a
three-Judge bench of this Court in Somasundaram @
Somu v. State represented by the Deputy
Commissioner of Police ,
14
after surveying several
precedents, held:
77. … the combined result of Section 133 read with
illustration (b) to Section 114 of the Evidence Act is that the
courts have evolved, as a rule of prudence, the requirement
that it would be unsafe to convict an accuse solely based on
uncorroborated testimony of an accomplice. The
corroboration must be in relation to the material
particulars of the testimony of an accomplice. It is clear
that an accomplice would be familiar with the general
outline of the crime as he would be one who has
participated in the same and therefore, indeed, be familiar
with the matter in general terms. The connecting link
12
Rampal Pithwa Rahidas & ors. v. State of Maharashtra, 1994 Supp (2) SCC 73
13
State of Andhra Pradesh v. Cheemalapatti Ganeswara Rao & Anr. (supra)
14
(2020) 7 SCC 722
Page 20 of 45
Criminal Appeal No(s). 847 & 848 of 2014
between a particular accused and the crime, is where
corroboration of the testimony of an accomplice would
assume crucial significance. The evidence of an accomplice
must point to the involvement of a particular accused. It
would, no doubt, be sufficient, if his testimony in
conjunction with other relevant evidence unmistakably
makes out the case for convicting an accused.
78. As laid down by this court, every material circumstance
against the accused need not be independently confirmed.
Corroboration must be such that it renders the testimony of
the approver believable in the facts and circumstances of
each case. The testimony of one accomplice cannot be,
ordinarily, be supported by the testimony of another
approver. We have used the word “ordinarily” inspired by
the statement of the law in K. Hashim wherein this court
did contemplate special and extraordinary cases where the
principle embedded in Section 133 would literally apply. In
other words, in the common run of cases, the rule of
prudence which has evolved into a principle of law is that
an accomplice, to be believed, must be corroborated in
material particulars of his testimony. The evidence which is
used to corroborate an accomplice need not be direct
evidence and can be in the form of circumstantial
evidence.”
(Emphasis supplied)
26. In Kashmira Singh v. State of Madhya
Pradesh
15
speaking for the Bench, Vivian Bose, J., in
his inimitable style, while holding that the requirement
of corroboration of the testimony of an approver is only
a rule of prudence, on the question whether conviction
could be based on the uncorroborated testimony of an
accomplice, observed: “so far as the law is concerned, a
conviction can be based on the uncorroborated testimony
of an accomplice provided the Judge has the rule of
15
(1952) 1 SCC 275: 1952 SCC OnLine SC 19, paragraph 13
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caution, which experience dictates, in mind and gives
reasons why he thinks it would be safe in a given case to
disregard it.”
27. In K. Hashim v. State of T.N.
16
this Court held
that although Section 114 Illustration (b) provides that
the court ‘may’ presume that the evidence of an
accomplice is unworthy of credit unless corroborated,
‘may’ is not ‘must’ and no decision of court can make it
‘must’. It was held that the court is not obliged to hold
that he is unworthy of credit; ultimately, it depends
upon the court’s view as to the credibility of evidence
tendered by an accomplice.
28. On the nature and extent of corroboration
required, if need be, in Rameshwar v. State of
Rajasthan,
17
which has been consistently followed,
this Court observed that though it is impossible to
formulate the kind of evidence which should, or would,
be regarded as corroboration, its nature and extent
would vary with the circumstances of each case and
also according to the particular circumstances of the
offense charged. After observing so, the following
guiding principles were laid:
(i) It is not necessary that there should be
independent confirmation of every material
16
(2005) 1 SCC 237, paragraph 27
17
1951 SCC 1213: 1951 SCC OnLine SC 83
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circumstance. It is not the requirement of law
that the independent evidence by itself should
be sufficient to sustain conviction. Rather,
there must be some additional evidence
rendering it probable that the story of the
accomplice is true and that it is reasonably
safe to act upon it.
(ii) The independent evidence must not only
make it safe to believe that the crime was
committed but must in some way reasonably
connect or tend to connect the accused with it
by confirming in some material particular the
testimony of the accomplice or the
complainant that the accused committed the
crime. All that is necessary is that there
should be independent evidence which will
make it reasonably safe to believe the witness’
story that the accused was the one, or among
those, who committed the offence.
(iii) The corroboration must come from
independent sources and thus ordinarily the
testimony of one accomplice would not be
sufficient to corroborate that of another. But
if circumstances are such as to make it safe
to dispense with the necessity of
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corroboration, a conviction so based would
not be illegal.
(iv) The corroboration need not be direct
evidence. It is sufficient if it is merely
circumstantial evidence of the accused’s
connection with the crime.
Summary of l egal principles regarding the
necessity of corroboration of an approver’s
testimony
29. In our view, the legal principles regarding the
necessity of corroboration of an approver’s testimony
could be summarised as under:
(a) It is not an inviolable rule of law that
testimony of an approver must be
independently corroborated in material
particulars before it could form the basis of
conviction. The r equirement of
corroboration is not mandated by law but is
a rule of prudence. Therefore, the Court
may convict an accused even on an
uncorroborated testimony of the approver
provided it is satisfied, and record reasons
for its satisfaction, that it is safe to rely on
such testimony even in the absence of
corroboration.
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(b) Corroboratory evidence, if required, may be
either direct or circumstantial, or both.
(c) However, where corroboration is considered
necessary, it must come from independent
sources. Ordinarily, the testimony of one
approver is not to be used to corroborate
the testimony of another approver.
(d) Corroboration, when required, must be
such that it renders the testimony of the
approver believable in the facts and
circumstances of the case. However, it is
not the requirement of law that every
material circumstance against the accused
is independently confirmed.
30. Having noticed the law regarding the necessity of
corroboration of an approver’s testimony, we shall now
consider few decisions of this Court wherein certain
tests were adopted to determine the creditworthiness of
the testimony of an approver.
Tests to determine creditworthiness of the
testimony of an approver
31. In Ravinder Singh v. State of Haryana ,
18
this
Court held that that an approver must prove his
18
(1975) 3 SCC 742, paragraph 12
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Criminal Appeal No(s). 847 & 848 of 2014
worthiness for credibility in court. The test of
worthiness is fulfilled, first, if the story he narrates
involves him in the crime and appears intrinsically to be
a natural and probable catalogue of events that had
taken place and, secondly, the story given by him
insofar as the accused on trial is concerned, must
implicate him in such a manner as to give rise to a
conclusion of guilt beyond reasonable doubt.
32. In Chandan and another v. State of
Rajasthan,
19
this Court rejected the testimony of an
approver who, inter alia, claimed to be a spectator at
every moment but did not participate at any stage.
33. In Rampal Pithwa (supra) to determine the
creditworthiness of the approver’s testimony, this Court
held that the court may look for answers to the
following questions: (a) How the approver came to be
arrested? (b) How did he become a participant in the
crime? (c) What role did he play in the crime? (d) When
and how he decided to be an approver? It was observed
that these were some of the questions which would
have to be considered to determine the creditworthiness
of an approver’s testimony and the nature and extent of
corroboration required before his testimony can be
relied upon in support of the prosecution case. In that
19
(1988) 1 SCC 696
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case upon finding that the approver was arrested in
some other case and, till his arrest, the investigation
had drawn a blank in the case and was being criticized
for not solving the crime and , therefore, the
investigating agency was under pressure, the Court
held:
“33. A careful analysis of the statement of the approver
given at the trial coupled with the circumstances under
which he came to be arrested, the averments in his
application for grant of bail and other circumstances has
created an impression on our minds that the approver is a
planted witness and his testimony is not at all worthy of
reliance and credence. The investigating agency appears to
have created false evidence and fabricated false clues
insofar as the testimony of the approver is concerned. From
all the attendant circumstances, we are satisfied that the
approver Ramcharan is not a reliable witness; his arrest
was intrinsically unnatural and his self -confessed
participation in the crime without taking any active part in
it not acceptable. The approver has claimed to be a
spectator of every fact and of every moment but asserted
that he did not participate in the assault at any stage and
remained standing at a distance taking care of the clothes
of some of the co-accused. His statement is almost of an
exculpatory nature. His statement as a whole does not
inspire confidence. His story is not worthy of credence. …”
(Emphasis supplied)
34. In Suresh Chandra Bahri v. St ate of Bihar,
20
this Court held that the dominant object of the
provision of Section 306 CrPC (i.e., the provision for
grant of pardon) is that offenders of heinous crime do
not go unpunished. Since the object is to prevent the
escape of offenders from punishment in heinous
20
1995 Supp (1) SCC 80
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Criminal Appeal No(s). 847 & 848 of 2014
offences for lack of evidence, there can be no objection
against the tender of pardon to an accomplice simply
because in his confession, he does not implicate himself
to the same extent as the other accused. This Court
went on to observe that all that Section 306 requires is
that pardon may be tendered to any person believed to
be involved directly or indirectly in or privy to an
offense.
35. Relying on Suresh Chandra Bahri (supra) , in A.
Devendran v. State of T.N.,
21
this Court held that if
the approver’s testimony shows his participation in the
crime, though not in the actual killing, his testimony as
an approver cannot be discarded merely because he
deposes that he participated under the persuasion and
threat of other persons. What is important is the
approver’s participation in the crime, though it may not
be to the same extent as the other accused.
36. Having regard to the decisions discussed herein
above, in our view, what is settled is that the
creditworthiness / reliability of the testimony of an
approver is not dependent on any one factor. There are
several factors which must be considered cumulatively
to determine whether the testimony is credible and
reliable. The first and foremost is that the approver
21
(1997) 11 SCC 720
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Criminal Appeal No(s). 847 & 848 of 2014
must not appear to be a planted witness. Once that
hurdle is crossed, the testimony of an approver is to be
tested as any other witness, though with greater care
and caution. One of the necessary tests is that his
testimony must be inculpatory and not exculpatory.
However, if his testimony is not entirely exculpatory and
makes a full and complete disclosure of the events qua
commission of the crime, which inspires confidence i.e.,
appears truthful in the context of proven
circumstances, his testimony cannot be discarded as
one lacking credibility merely because he does not
implicate himself to the extent he implicates the other
co-accused.
Consideration of PW-1’s testimony
37. To appreciate whether the statement of PW-1 is
self-exculpatory or not, it would be worthwhile to
extract some part of his deposition regarding the two
murders. In respect of murder of the cleaner Jasbir,
PW-1 stated:
“…..Accused Ram Chhail took off his pant and caught hold
of the said cleaner. The cleaner got frightened. The cleaner
bore a boyish appearance, aged 16-17 years, height about 5
feet. Accused Ram Chhail told the cleaner that he would
not be killed. Rather he would be tied in the fields. He
further told the cleaner that his driver would also be tied
and left in the fields. There was long grass in the fields at
that time. The cleaner was asked to take off his clothes.
Thereafter his hands and feet were tied with his clothes. His
hands were tied behind his back. He was made to lie on the
ground. Kishan then brought a Gandasa, 1 foot in length,
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over there. I then saw through the intention of the accused
Ram Chhail and concluded therefrom that the cleaner
would be murdered. I requested accused Ram Chhail not to
do so and leave the cleaner on the fields with his hand and
feet tied. The accused Ram Chhail then told me that in case
the cleaner was left alive, in that eventuality we all would
be killed. Accused Ram Chhail sat on the chest of the
cleaner and started pressing his neck. Kishan caught hold
of his legs. I also caught hold of the legs of the cleaner at
the instance of accused Ram Chhail, as the cleaner was
moving his legs hither and thither. The cleaner fell
unconscious within two or three minutes. Accused Ram
Chhail left the cleaner and Kishan accused, and I also left
him. The cleaner was gasping for breath at that time.
Accused Ram Chhail then told us that the cleaner would
survive. Consequently, he took up the Gandasa brought by
Kishan and gave a blow on the neck of the cleaner as a
result thereof, his neck was cut to a great extent. He started
bleeding profusely. Accused Ram Chhail then opened his
hands and feet. We then proceeded in the direction of the
tuck. There were pits of water in between the truck and the
place of occurrence. The accused Ram Chhail threw that
Gandasa in that water and washed his hands and feet. We
then came to the truck No. HRA 6825…”
(Emphasis supplied)
In respect of murder of the driver Arvind, PW-1 stated:
“…. We all five got down from the truck bearing number
URM-660 along with the driver of the truck. The driver after
having got down from the truck, started looking at the
truck bearing number HRA 6825. The accused Ram Chhail
took off his pants. The driver suspected some mischief from
the accused persons as there was no Kashiphal
21A loaded in
the truck. Accused Ram Chhail immediately swooped on
the driver of the truck. Accused Tejpal also helped accused
Ram Chhail in catching hold of the driver. The driver was
taken towards the fields. Accused Gopi was left on the
truck to guard them. Kishan accused and I followed them.
Accused Kishan was armed with a Gandasa at that time.
The accused Ram Chhail searched the person of the driver.
The search resulted in recovery of Rs. 1000 to 1200 from
one pocket and Rs. 100 to 200 from the other pocket. There
21A
Pumpkin in vernacular dialect of North India
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was also a sheet of paper which was recovered from the
pocket of the driver. Accused Ram Chhail handed over the
paper, pink in color, to me and appropriated the entire
money himself. I lost temper. Then tore away that paper
and threw it on the ground. The deceased driver was then
taken to the bank of a canal. The said canal was dry. The
clothes were removed from his body. His hands and feet
were tied with his clothes. He was made to lie on the
ground. Accused Ram Chhail sat on his chest and started
pressing his neck. Accused Kishan caught hold of his legs.
Accused Tejpal pressed his mouth and nose with his hands.
I was standing as a guard. The driver fell unconscious.
Thereafter, the accused persons left him. Accused Ram
Chhail thereafter picked up the Gandasa and hit the
deceased driver thrice on his neck with the same. Accused
Kishan, prior to it, had kept the Gandasa nearby. His head
was severed from his body as a result of the blows of the
Gandasa. The hands and feet of the driver were then
untied. Accused Tejpal then put his severed head in the
clothes of the deceased and wrapped it. Accused Tejpal,
then picked up the clothes in which the severed head was
wrapped, and we all came to the truck parked on the side of
the road. The remaining portion of that body was left there.
Accused Ram Chhail brought the Gandasa with him.
Accused Kishan took out an iron rod from the toolbox of the
truck. Accused Kishan and Tejpal then went in the fields
situated on the other side of the road along with that head
wrapped in the clothes and that iron rod. I stood on the
road. Accused Ram Chhail move to the opposite direction
from the place where the murder took place. Accused
Kishan dug a pit and put that head of the deceased driver
into that pit and then struck it repeatedly with iron rod. I
was watching all this while standing on the road. Accused
Ram Chhail thereafter returned to the truck empty handed.
We all four persons then came to the road where the truck
was standing. Accused Gopi was already there from before.
Truck number URM 660 was driven by accused Ram
Chhail. I and Kishan boarded the said truck. Sri Ram
Chhail drove the truck towards village Hiranki. While on
our way the old clothes were thrown away sideway. The
truck was stopped at DTC bus stop, village Hiranki.
Accused Tejpal and Gopi brought the other truck HRA 6825
there. The said truck was being driven by accused Tejpal.
The number plate of truck number URM -660 was changed.
The sunmica on the windows of the truck was removed ,
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which was thrown at a little distance from there. There was
painted on the truck State Bank of Rishikesh. The same
was erased. The documents pertaining to the truck were
also taken out from the said truck. They were set on fire….”
(Emphasis supplied)
38. The above-extracts of PW-1’s testimony would
indicate that his testimony is not entirely exculpatory. It
inculpates PW-1 by showing that he participated in the
events that ultimately led to the murder. He stated that
he held the legs of one of the deceased to make him
unconscious so that they could steal the truck.
Therefore, merely because he was not the one who
inflicted the fatal blow is not sufficient to discard his
testimony as one being entirely exculpatory. Besides,
PW-1’s statement clearly shows that he was very much
a part of the plan to steal the truck and had actively
participated in the crime, though not to the extent the
others did. Thus, the first argument that the statement
of PW-1 is exculpatory and therefore, would have to be
discarded is worthy of rejection and is rejected
accordingly.
39. In so far as the contention that PW-1’s testimony
was not corroborated in material particulars is
concerned, suffice it to say that the High Court has
considered in detail the various circumstances that
corroborate the testimony of PW1 (the approver). These
are, inter alia, regarding (a) ownership of the looted
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Truck and its use by the two deceased for
transportation, which was found in possession of the
co-accused; (b) identification of the headless body being
of Arun Kumar; head/ skull of Arun Kumar found
wrapped in a green Pyjama worn by Arun Kumar; torn
papers of “bilty” etc lying near the body; head found
separate from the body; body of Jasbir found in the
agricultural field of village Hiranki where it was
disposed of according to PW-1; besides, the dead body
carried name ‘Jasbir’ tattooed on the right arm. All
these bits and pieces of circumstances corroborated the
graphic narration of the crime by PW-1. There is no
specific challenge laid to all those circumstances found
proved by the High Court. We thus do not propose to
deal with the aforesaid submission any further. Suffice
it to say that the High Court has dealt with this aspect
in detail, and with clarity, to hold that the approver’s
testimony was corroborated in material particulars.
Besides no serious question was put to PW-1 to doubt
his presence at the scene of crime. We, therefore, hold
that PW-1’s testimony was reliable and creditworthy
and could form the basis of conviction. Issue (a) is
decided in terms above.
Issue (b) : Whether the appellant’s conviction under
Section 302 read with Section 120 -B IPC is
sustainable?
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40. The next submission on behalf of the appellant is
that the appellant could not have been convicted under
Section 302 read with Section 120-B IPC. In this regard,
the argument is two-fold. First, there is no specific
charge framed against the appellant for an offence of
conspiracy to commit murder. Second, even assuming
the charge was there, or that the appellant was aware of
the charge of conspiracy of murder against him, there is
no evidence to substantiate that charge.
41. Section 464 of CrPC provides that no finding,
sentence or order by a court of competent jurisdiction
shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error,
omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the
court of appeal, confirmation or revision, a failure of
justice has in fact been occasioned thereby.
42. The argument of the appellant in respect of defect
in the charge was raised before the High Court. The
High Court while dealing with the role played by Gopi
also dealt with the argument in respect of defect in
charge. The relevant paragraphs 46, 47 and 48 of the
impugned judgment are extracted below:
46. Section 120-B IPC has been rightly invoked against
Gopi as far as murder of Jasbir is concerned. The
said murder was committed in cool calculated
preplanned manner. Arun Kumar and Jasbir were
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separated on false pretext and Jasbir was taken to an
isolated spot in village Hiranki where he was killed.
Gopi Chand was not present at the spot of the
occurrence at village Hiranki but as testified by the
approver he was present with all accused till , in
terms of the plan, Jasbir was separated from Arun
Kumar. Gopi was present at the spot of occurrence
when Arun Kumar was killed though was guarding
the truck. Principle of common intention under
Section 34 IPC would be applicable.
47. Before we close, we should deal with the contention
of the appellants Tejpal and Kishan on the question
of the charges framed against them. In the present
case charges were framed on two dates i.e. on 30
th
October, 1985 and again on 21
st January, 1986 reads
as under:-
“I, Mohd. Shamim, Addl. Sessions Judge, Delhi do
hereby charge you (1) Ram Chhail, (2) Kishan Lal, (3)
Gopi Chand and (4) Tejpal, as under:-
That on 12.07.1984 at Delhi you all along with Ashok
(approver) agreed to do the illegal act by illegal means
i.e. to commit the dacoity of Truck No. URM-660 and
murder of Arun Kumar and Jasbir and thereby
committed an offence punishable under Section 120-
B IPC and within the cognizance of this Court.
And, I hereby direct that you all be tried by this court
on the aforesaid charge.
“Another charge framed on the same date is as
under:
“I, Mohd. Shamim, Addl. Sessions Judge, Delhi do
hereby charge you (1) Ram Chhail, (2) Kishan Lal, (3)
Tejpal, as under:-
That during the intervening night of 12/13.07.1984
in a jungle near Hiranki village, within the
jurisdiction of P.S. Alipur, Delhi in pursuance of the
conspiracy you intentionally caused the death of
Jasbir alias Kala after committing the dacoity of truck
No. URM-660 and thereby committed an offence
punishable under Section 302 IPC read with Section
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120-B IPC and within the cognizance of this court.
And, I hereby direct that you all be tried by this court
on the aforesaid charge.”
48. No doubt, on the same date other charge s were
framed against Ram Ch hail, Kishan Kumar and
Tejpal to the effect that on 12
th July, 1984 to 13
th
July, 1984, they in conspiracy had caused death of
Arun and committed offence under Section 302 read
with Section 120-B IPC, but the reading of the two
charges mentioned above clearly show that
appellants were aware of the case against them that
they have been charged with the murder of both Arun
Kumar and Jasbir and the offence punishable under
Section 120-B. They were also charged for dacoity for
having stolen truck No. URM 660. Even if there is any
ambiguity or anomaly in the framing of the charge
neither of them objected to or questioned it at the
time of trial. Looking at the questions asked to the
witnesses and the manner in which the trial was
conducted, it is clear that no prejudice has been
caused and suffered by the appell ants. The
contention, therefore, has to be rejected.
(Emphasis supplied)
43. On a careful scrutiny of the records, we notice that
initially in the charge framing order, the name of Gopi
Chand was also there along with Ram Ch hail, Kishan
Lal and Tejpal for offences punishable under Section
302 IPC read with Section 120-B IPC, but, later, the
name of Gopi Chand seems to have been struck off.
However, the charge framing order reflects that Gopi
Chand had denied the said charge and claimed for trial.
In these circumstances, Gopi Chand was fully aware of
the charge he was facing and, therefore, having regard
to the finding of the High Court, the questions asked to
the witnesses which related to that charge, no prejudice
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could be said to have been caused to the appellant on
ground of any defect in the charge. In the
circumstances, we reject this argument also.
44. Now, we shall consider the second limb of the
argument of learned counsel for the appellant, which is
that even if the testimony of PW1 is accepted as correct,
no case of criminal conspiracy to commit murder of
Jasbir and Arun Kumar is made out against the
appellant (Gopi Chand), though it may be said that he
was part of the conspiracy to commit dacoity, or had
committed the offence of dacoity punishable under
Section 396 IPC.
45. To test the aforesaid submission a look at the
relevant statutory provisions would be apposite.
46. Criminal conspiracy is defined in Section 120-A of
IPC as follows:
Definition of criminal conspiracy. - 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 offense 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.
47. Punishment for criminal conspiracy is provided in
Section 120-B of IPC, which reads thus:
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Punishment of criminal conspiracy. – (1) 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 this Code for the
punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding 6 months, or with fine
or with both.
48. Section 109 of IPC provides punishment of
abetment in the following terms:
“Whoever abets any offence shall, if the act abetted is
committed in consequence of the abetment, and no express
provision is made by this Code for the punishment of such
abetment, be punished with the punishment provided for
the offence.
Explanation. - An act or offence is said to be committed in
consequence of abetment, when it is committed in
consequence of the instigation, or in pursuance of the
conspiracy, or with the aid which constitutes the
abetment.”
49. Section 10 of the Evidence Act makes acts or
statements of a conspirator relevant evidence against
co-conspirators. It reads thus:
Section 10. Things said or done by conspirator in
reference to common design.
Where there is reasonable ground to believe that two or
more persons have conspired together to commit an offence
or an actionable wrong, anything said, done or written by
anyone of such persons in reference to their common
intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against
each of the persons believed to so conspiring as well for the
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purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.
50. The essential ingredients of the offence of criminal
conspiracy are: (1) an agreement between two or more
persons; (2) the agreement must relate to doing or
causing to be done either (a) an illegal act; or (b) an act
which is not illegal but is done by illegal means. To
come to an agreement meeting of minds of two or more
persons for doing or causing to be done an illegal act or
an act by illegal means is sine qua non of criminal
conspiracy. It is extremely difficult to adduce direct
evidence to prove conspiracy. Existence of conspiracy
and its objective can be inferred from the surrounding
circumstances and the conduct of the accused. In some
cases, indulgence in the illegal act or legal act by illegal
means may be inferred from the knowledge itself.
22
51. In Firozuddin Basheeruddin & Ors V. State of
Kerala
23
, this Court observed:
“25. Conspiracy is not only a substantive crime, it also
serves as a basis for holding one liable for the crime 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 reasonable 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
22
Rajiv Kumar v. State of Uttar Pradesh & Another, (2017) 8 SCC 791
23
(2001) 7 SCC 596
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Criminal Appeal No(s). 847 & 848 of 2014
group as a whole to warrant treating each member as a
casual agent to each act. Under this view, which of the
conspirators committed the substantive offense would be
less significant in determining the defendant’s liability than
the fact that the crime was performed as part of a larger
division of labour to which the accused had also
contributed his efforts.”
(Emphasis supplied)
52. Similar view has been taken in State through
Superintendent of Police CBI/ SIT V. Nalini & Ors.
24
where this Court while summarizing the broad
principles governing the law of conspiracy, observed:
583. ….
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.”
(Emphasis supplied)
24
(1999) 5 SCC 253
Page 40 of 45
Criminal Appeal No(s). 847 & 848 of 2014
53. In Bhagwan Swarup Lal Bishan Lal & others v.
State of Maharashtra
25
, after considering the
provisions of Section 120-A of IPC and Section 10 of the
Evidence Act, this Court held:
Para 8…
“The essence of conspiracy is, therefore, that there should
be an agreement between persons to do one or other of the
acts described in the section. The said agreement may be
proved by direct evidence or may be inferred from acts and
conduct of the parties. There is no difference between the
mode of proof of the offense of conspiracy and that of any
other offense: it can be established by direct evidence or by
circumstantial evidence. But Section 10 of the Evidence Act
introduces the doctrine of agency and if the conditions laid
down therein are satisfied, the act done by one is
admissible against the co-conspirators. The said section
reads:
“Where there is reasonable ground to believe that two
or more persons have conspired together to commit
an offence or an actionable wrong, anything said,
done or written by anyone of such persons in
reference to their common intention, after the time
when such intention was first entertained by any one
of them, is a relevant fact as against each of the
persons believed to be so conspiring as well for the
purposes of proving the existence of the conspiracy as
for the purpose of showing that any such person was
a party to it.”
This section, as the opening words indicate, will come into
play only when the court is satisfied that there is
reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable
wrong, that is to say, there should be a prima facie evidence
that a person was a party to the conspiracy before his acts
can be used against his conspirators . Once such a
reasonable ground exists, anything said, done or written by
25
AIR 1965 SC 682: 1963 SCC OnLine SC 26
Page 41 of 45
Criminal Appeal No(s). 847 & 848 of 2014
one of the conspirators in reference to the common
intention, after the said intention was entertained, is
relevant against the others, not only for the purpose of
proving the existence of the conspiracy but also for proving
that the other person was a party to it. The evidentiary
value of the said acts is limited by two circumstances,
namely, that the acts shall be in reference to their common
intention and in respect of a period after such intention was
entertained by any one of them . The expression ‘in
reference to their common intention’ 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. Another important limitation
implicit in the language is indicated by the expressed scope
of its relevancy. Anything so said, done or written is a
relevant fact only ‘as against each of the persons believed to
be so conspiring as well 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’. It can only be used
for the purpose of proving the existence of the conspiracy or
that the other person was a party to it. It cannot be used in
favour of the other party or for the purpose of showing that
such a person was not a party to the conspiracy. In short,
the section can be analyzed as follows: (1) there shall be a
prima facie evidence of affording a reasonable ground for a
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.”
(Emphasis supplied)
54. From the decisions noticed above, it is clear that
one who enters into a conspiratorial relationship is
liable for every reasonable foreseeable crime committed
Page 42 of 45
Criminal Appeal No(s). 847 & 848 of 2014
by every other member of the conspiracy in reference to
their common intention, whether or not he knew of the
crimes or aided in their commission.
55. In the instant case, the prosecution with the aid of
the testimony of PW-1 has succeeded in establishing
that there was a prior meeting of mind between the five
partners to the crime to commit an act of stealing the
truck and in furtherance thereof they hired the truck of
which the two deceased were driver and cleaner. Not
only that they carried a ‘Gandasa’ which can be used as
a weapon of assault to cause grievous injury. The
finding is that in furtherance of their plan they hired a
truck, separated the driver and cleaner by deception,
and thereafter killed the driver and cleaner at separate
places to take possession of that truck. The appellant
was shown as maintaining vigil at one of the two trucks
while his co-participants were trying to dump the driver
and cleaner in the bushes to secure possession of the
truck. The argument that the appellant was not aware
that the driver and cleaner would be killed in the
process is not acceptable, because their murder was a
foreseeable event. This we say so because when you
separate a person from the possession of his property or
goods, use of force is a foregone conclusion unless it is
done clandestinely, as in the case of theft. Here, the
possession was taken not clandestinely but by force. In
Page 43 of 45
Criminal Appeal No(s). 847 & 848 of 2014
such a situation, causing injury to the victim including
his murder is a foreseeable event to further the cause
for which partners in crime had joined hands. Besides
the planned manner in which the crime was committed
leaves no shadow of doubt that the appellant, who
happens to be brother of one of the co-conspirators,
was in cahoots with the others. Therefore, in our view,
he was justifiably convicted for criminal conspiracy to
commit murder. Issue (b) is decided accordingly.
56. We therefore uphold the conviction of the appellant
for the offences for which he has been convicted by the
Trial Court and the High Court.
57. At this stage, we would like to address the fervent
appeal of the learned counsel for the appellant to
commute the sentence to the period of sentence under
gone. In this regard it was urged that admittedly the
appellant did not directly participate in the murder of
the two deceased; the conviction and sentence under
Section 396 IPC is 10 years which has already been
served; sentences of convicted co-accused have been
remitted by the State; and by now appellant has served
sentence for well over 18 years.
58. The custody certificate of the appellant dated
06.03.2024 indicates that he has served sentence to the
extent indicated below:
Page 44 of 45
Criminal Appeal No(s). 847 & 848 of 2014
(i) 30.07.1984 to 05.03.1989;
(ii) 03.03.2009 to 19.05.2009;
(iii) 05.06.2009 to 22.04.2010;
(iv) 13.05.2010 to 05.08.2010;
(v) 26.08.2010 to 20.04.2011;
(vi) 09.08.2013 to 06.03.2024
59. Since thereafter, the appellant has served another
two years of sentence. Thus, in all the appellant has
served well over 18 years of sentence.
60. In a recent decision, Munna Moyuddin Shaikh v.
State of Gujarat, 2026 INSC 558
26
, decided on 26
th
May 2026, this Court while affirming conviction under
Section 302 IPC, upon finding that the appellant had
already served sentence of over 20 years, converted the
sentence of imprisonment for life to the period of
sentence already undergone by holding that modifying a
sentence of life imprisonment to a fixed term sentence
is permissible in light of the decision of this Court in
Union of India v. V. Sriharan
27
followed in Shiva
Kumar @ Shiva @ Shivamurthy v. State of
Karnataka
28
, as long as the sentence imposed is more
than 14 years of imprisonment.
26
2026 SCC OnLine SC 939
27
(2016) 7 SCC 1
28
(2023) 9 SCC 817
Page 45 of 45
Criminal Appeal No(s). 847 & 848 of 2014
61. Having regard to the above decision as also that
the appellant Gopi Chand has already suffered over 18
years of sentence, while taking into account that the
incident is of 1984 and co-convicts have been given the
benefit of remission of sentence, though we maintain
the conviction of the appellant, we deem it appropriate
to modify the sentence awarded to the appellant to the
period of sentence already undergone.
62. Accordingly, the appeals are partly allowed to the
extent indicated above. The appellant shall be released
forthwith, if not required in any other case. Pending
application(s), if any shall stand disposed of.
….…………. ......................................J.
(PAMIDIGHANTAM SRI NARASIMHA )
…………… ......................................J.
(MANOJ MISRA)
New Delhi;
May 29th, 2026
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