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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1066 of 2010

RAM SHARAN CHATURVEDI ....APPELLANT

VERSUS

THE STATE OF MADHYA PRADESH .…RESPONDENT

J U D G M E N T

PAMIDIGHANTAM SRI NARASIMHA J.

1. This appeal by accused no. 3

1, challenges the judgment of

the High Court of Madhya Pradesh in Criminal Appeal No. 213 of

2006 confirming the conviction of the Appellant imposed by the

Additional Sessions Judge, Guna for offences under Sections 201,

380, 435, 457 and 477 read with Section 120B of the Indian Penal

Code, 1860. The High Court also confirmed the sentence of

rigorous imprisonment for four years along with a fine of Rs. 500

under Sections 380, 435, 457 of the IPC and rigorous

imprisonment of two years along with a fine of Rs. 500 under

1

hereinafter referred to as Appellant.

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Section 201 IPC. However, the sentence under Section 477 IPC

was reduced by the High Court from rigorous imprisonment for six

years to four years.

2.1 Three accused, employees of Guna Branch of Central Bank

of India, were prosecuted for the above-referred offences of theft

(of Rs. Six Lakhs from the safe and strong room of the Bank),

house-trespass, destruction of valuable security, and other

offences. While the main accused, Pradeep Saxena (hereinafter

referred to as ‘A-1’) and Vinod (hereinafter referred to as ‘A-2’),

were convicted and sentenced concurrently given the oral and

documentary evidence, as per which the money is proved to have

been recovered from their possession, the Appellant (A-3) was

convicted and sentenced for the very same offences only with the

aid of Section 120B of the IPC.

2.2 The enquiry against the appellant is therefore confined to the

existence or the proof of criminal conspiracy between him and the

other accused. The charge of conspiracy against the appellant

arose because, as Head Cashier, he was to be in the custody of one

of the keys of the dual locker system maintained by the Bank for

the safe custody of cash and valuable security.

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3. The case of the prosecution is that, upon transfer of the

existing Branch Manager Shri R.K. Makore, Senior Manager

Shri K.R. Lydia (hereinafter referred to as ‘PW-4’) was given the

additional charge as Manager-in-Charge. As he was on leave for

attending a meeting in the Regional Office, Gwalior, another

employee Shri Sushil Kumar Verma (hereinafter referred to as

‘PW-10’) was given the additional charge as Manager-in-Charge.

Guna is a very small branch of the Central Bank of India but on

11.06.2004 a large amount of Rs. Fifteen Lakhs came into the

custody of the Bank, and everybody in the Bank was aware of this

fact. The next day, 12.06.2004, happened to be a Saturday, and

after the transactions were completed and the branch was closed

at 5.45 p.m., it reopened only on Monday, i.e., 14.06.2004 at

10.30 a.m., intervening Sunday being a holiday. As the

commission of theft and other offences occurred after Saturday

evening at 5.45 p.m. and before 10.30 a.m. on Monday, and the

locks of the building were not broken, all the transactions before

and after the closure became relevant to detect the crime. The

prosecution explained the events as under.

4. On 12.06.2004 at around 3.30 p.m., there was a problem

with the computer at the Bank, and PW-10 got involved in

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rectifying it. As the Bank was about to close, a customer

Smt. Seema Jain walked in and sought to use the bank locker, for

which PW-10 sought the help of the Appellant. The Appellant,

along with Sanjay Daria (hereinafter referred to as ‘PW-12’),

entered the locker room and helped the customer operate the

locker. After the above-referred transaction, the Appellant left the

Bank. PW-10, PW-12 and A-1 remained in the premises till

5.45 p.m., and by the end of the day, after A-1 secured the locks

of the main gate, PW-10 and PW-12 left for their respective

residences.

5. On Monday i.e., 14.06.2004, the sanitation employee

Rajendra Premi (PW-9) went to the house of the Appellant to collect

the key to the main gate of the Branch. After reaching the Bank,

he started his routine work of cleaning when another peon

Dashrath Yadav (hereinafter referred to as ‘PW-5’), security guard

Ram Naresh Bhadoria (PW-7), and PW-10 also reached the Bank

at about 10.00 a.m. Around the same time, the Appellant also

reached the Bank. PW-5 was asked to open the main gate of the

strong room, and it is the case of the prosecution that this gate

could not be opened with the key of the Manager-in-Charge

PW-10. However, it opened with the help of the Appellant’s key. As

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soon as they entered the strong room, they sensed a burning smell

of petrol. After that, they sought to open the grill gate of the strong

room. This could also not be opened with the key in the custody

of PW-10, but could be opened with the key of the Appellant. Upon

entering the room past the grill gate, the employees saw that the

bank registers were thrown open, and some of them were in a

burnt condition. Further, even the safe inside the strong room

could not be opened with the key of PW-10 but could be opened

with the key of the Appellant. Upon opening the safe, they noticed

that the bundle of currency notes and secured documents were in

half-burnt condition and lying scattered. After inspection, it was

noticed that out of Rs. 18,07,691/- in the custody of the Bank as

of 12.06.2004, an amount of Rs. Six Lakhs was missing, and

currency notes worth Rs. 17,160/- were in a half-burnt condition.

At this point, A-1 was not in the Bank. PW-10 informed Senior

Manager PW-4 about these events at 10.30 a.m. PW-4 returned to

the Bank and finally lodged the FIR No. 538 of 2004 on 14.06.2004

at 6.15 p.m. before the Police Station Guna. The FIR was registered

for offences under Sections 436 and 380 of the IPC.

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Investigation:

6. During the course of the investigation, A-1 was interrogated

on 15.06.2004. Based on the information given by him through

Memo Ex. P-5, Rs. 5,40,000 was recovered from a briefcase at the

‘tand’ of a room in A-2’s house, and the balance amount of

Rs. 50,000 was also recovered from a locker secured in an almirah

in his house. Further, A-2 led the investigation to identify and

recover the plastic bottle containing the remaining petrol, hidden

in the canteen of the branch. The Investigating Officer seized it

through memo Ex. P-58.

7. In the absence of evidence of breaking of the locks of the

building, or of the main gate, grill gate of the strong room, or even

the safe in the Bank, it was inferred that the act of theft was not

possible without the usage of actual keys. As the second set of

keys were in the official custody of the Appellant, he was arrested.

8. While A-1 and A-2 were charged for offences under Sections

436, 457, 380, 201 and 477 of the IPC, the Appellant was charged

for the same crimes with the aid of Section 120B therein. All the

three accused were tried together by the First Additional Sessions

Judge, Guna, in Sessions Case No. 228 of 2004.

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Trial:

9. The prosecution examined 20 witnesses, being PW-1 to PW-

20 and marked as many as 65 documents. As there was no direct

evidence of the commission of the offence, the prosecution had to

rely on circumstantial evidence through testimonies of PW-4,

PW-5, PW-6, PW-7, PW-8, PW-9 and PW-15 to prove that the theft

and incineration of currency notes and documents by the

sprinkling of petrol had in fact taken place at the instance of A-1

and A-2.

Trial Court:

10. The Trial Court, by its judgment dated 07.03.2006, rejected

the plea of A-1 and A-2 that no offence of theft was committed as

the entire cash was recovered, by holding that the cash receipts

recovered from A-2 based on A-1’s statements, bore slips of

different banks, and undoubtedly comprised stolen property.

Further, the argument that branch-wise account statements of the

Bank from 12.06.2004 and 14.06.2004 did not show any variation

in the amount maintained by the Bank, was rejected by the Trial

Court based on the testimony of PW-4 and the recoveries made.

11. The Trial court convicted A-1 and A-2 for all the offences and

sentenced them as indicated earlier. Dealing with the access of the

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accused into the Bank, the strong room, and then into the safe

therein, the Trial Court relied on the evidence of PW-4, who

referred to the rules governing the operation of strong room and

safe with the aid of dual lock system. Based on testimonies of

PW-4, PW-5, PW-7, PW-8, PW-10, the Trial Court concluded that

the Appellant was in the exclusive custody of one of the keys that

could have been used for operating the grill gate, strong room, as

well as the safe of the Bank. After referring to the statements of

these witnesses, the Trial Court concluded that as the Appellant

is the custodian of one set of keys, he was a part of a conspiracy

with A-1 and A-2 to commit the offences. It is on this inference

that the Trial Court convicted the Appellant for the same offences

with the aid of Section 120B of the IPC and proceeded to sentence

him along with the other accused.

High Court:

12. As indicated above, the High Court has confirmed the

conviction and sentence of the Trial Court with a simple

modification that rigorous imprisonment for six years under

Section 477 of the IPC was reduced to rigorous imprisonment of

four years.

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13. Before considering the submissions made on behalf of the

Appellant, we may note that all the three accused have already

served their sentences.

Submissions:

14.1 Ms. S. Janani, AOR appeared on behalf of the Appellant, had

reiterated the submissions made on behalf of A-1 and A-2 in the

Trial Court, that there was no loss caused to the Bank, as the

entire stolen amount was recovered. She sought to demonstrate

that the accounts maintained by the Bank did not reflect any

variation in the amounts; hence, the Trial Court, as well as the

High Court, were not justified in concluding that commission of

theft took place and accordingly convicting the Appellant.

14.2 We heard Shri Pashupathi Nath Razdan, AOR, assisted by

Shri Prithiviraj Singh, Shri Mirza Kayesh Begg, Shri Prakhar

Srivastav, Shri Astik Gupta, Ms. Ayushi Mittal for the State. Shri

Razdan has submitted that the Trial, as well as the High Court,

correctly concluded the findings on the basis of well-appreciated

evidence, and there is no occasion for interfering with the

judgment of the High Court.

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Analysis:

15. We are not convinced with the argument of Ms. Janani, that

neither an offence of theft has taken place nor any loss was caused

to the bank, for the very same reason that the Trial Court as well

as the High Court had given while confirming the conviction of

A-1 and A-2. We reiterate that apart from the testimony of the

Senior Manager PW-4, proving the fact of theft, both the Courts

have observed that the recovered currency notes from A-2’s house

bore slips of different banks, including the Central Bank of India

and the Punjab National Bank. Mere recovery of the stolen amount

by the Bank does not exonerate A-1 and A-2 and for that matter,

even the Appellant. We, therefore, have no hesitation in rejecting

this submission.

16. So far as the Appellant is concerned, we have noted that there

is neither any overt act attributable to him, nor any recovery of

stolen property from him. The conclusion drawn against him is

only for the reason that he was in exclusive possession of the set

of keys used to open the locks of the main gate, the grill of the

strong room and the safe inside it on 14.06.2004. Hence, his

conviction and sentence were based exclusively on the charge of

conspiracy under Section 120B of the IPC.

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17. Before we consider Appellant's liability for being the

authorized custodian of one set of keys for the lockers, it is

necessary to examine the system of dual locking adopted by the

Bank. The Office Manual of the Bank provides that cash was to be

stored in the strong room of the Bank, guarded by a Dual Control

System, where locks are secured by two keys operable successively

and separately. The Branch Manager and the Cashier-in-Charge

are to be in the joint custody of the sets of keys to the strong room

and the safe. The relevant clauses in the Manual are extracted

herein below for ready reference:

“2.1.1 The branch cash balance must be kept

overnight in the strong room, or at the smaller

branches where no strong room has been

installed in a fire-proof safe, in the joint custody

of the Head Cashier and the Manager or any

other officer authorized to hold joint custody of

cash.

2.1.2 The strong room or fire-proof safe, must be

under the double lock of the Head Cashier and

officer-in-charge, and both must be present

whenever the strong room or safe is opened to

withdraw or deposit cash and neither official

may enter the cash portion of the strong room

except in the presence of the other.

2.1.3 Under the dual control system, it is

advisable that the Branch Manager should hold

the second key of the cash safe and the cashier-

in-charge the first key. First and second keys are

so named according to the order of locking the

safe. For the strong room door, the Branch

Manager will hold the first key and the Cashier-

in-Charge the second key.

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...

2.1.6 The key holders are jointly responsible for

the contents of the strong room/safe.”

18. Returning to the charge under Section 120B of the IPC, the

evidence available on record will only show that when on Monday

morning, i.e. 14.06.2004, PW-5 and Manager-in-charge PW-10,

along with the Appellant, sought to open the main gate, grill gate

of the strong room, as well as the safe, the locks allegedly could

not be opened with the set of keys in possession of PW-10, but

could be opened through the set of keys in custody of the

Appellant. Precisely what caused the locks to not open with the

keys of PW-10 is not explained. The fact that these locks could be

opened by the key in possession of the Appellant cannot by itself

lead to an inference that he alone was responsible for enabling A-

1 and A-2 to access the safe to commit the offences. The very

purpose and object of the dual lock system is to prevent any single

custodian from accessing the strong room and the safe.

19. As per Clause 2.1.2 of the Office Manual, both the key

holders were mandatorily required to be present each time the

locks were secured or opened, except in emergency circumstances

which stipulate handing over the key to the next senior official and

recording the same in the key movement register. We may note

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here that the key movement register was not seized or produced

by the prosecution on the premise that it was practically never

used. Further, Clause 2.1.6 of the Office Manual stipulates that

both the key holders are jointly responsible for the contents of the

strong room and the safe. Under these circumstances, we are of

the opinion that the Appellant cannot be solely held accountable

for the failure to comply with the Office Manual, and for this reason

the Appellant’s exclusive possession of the keys cannot render him

culpable of the offences as mentioned earlier.

20. In his evidence, PW-10 stated that on 12.06.2004, he caused

the main gate of the branch to be closed by A-1, a contingent

employee. Thereafter, on 14.06.2004, the sanitation employee

obtained this set of keys from the house of the Appellant, a fact

used by the prosecution to imply that after the branch was locked

on 12.06.2004, the Appellant was in possession of the keys to the

main gate of the branch. On this, the Trial Court glossed over the

lapse on the part of PW-10. This questionable observation of the

Trial Court is as follows:

“It was admitted by Sushil Verma (PW-10) in the

paragraph No. 30 of the cross-examination that

locks could be locked as per the rules of the bank

only by the authorised person. The accused

Pradeep being not a casual worker, but even

then he had committed error deliberately while

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handing over the key. The witness stated further

in the paragraph No. 36 that the external, gate

was got closed by the accused Pradeep. It is

correct to say that he had no authority to close

the gate. Thus the witness did not get the lock

locked by the authorised person as per the rule

of the bank, but the lock was locked by

unauthorised person. But the errors committed

by the witness do not exempt the accused from

the consequences of the crime. It does not

provide any benefit to the accused.”

(emphasis supplied)

21. Apart from the fact that the Appellant by himself could not

have operated the strong room and the safe of the Bank without

the presence of the officer who was in the custody of the other set

of keys, it is also important to note that the prosecution completely

failed in adducing any evidence to indicate the existence of any

agreement between the Appellant on the one hand and A -1 and

A-2 on the other. The link necessary for proving the charge of

conspiracy is entirely missing.

22. The principal ingredient of the offence of criminal conspiracy

under Section 120B of the IPC is an agreement to commit an

offence. Such an agreement must be proved through direct or

circumstantial evidence. Court has to necessarily ascertain

whether there was an agreement between the Appellant and A-1

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and A-2. In the decision of State of Kerala v. P. Sugathan and Anr.

2,

this Court noted that an agreement forms the core of the offence

of conspiracy, and it must surface in evidence through some

physical manifestation:

“12. ...As in all other criminal offences, the

prosecution has to discharge its onus of proving

the case against the accused beyond reasonable

doubt. ...A few bits here and a few bits there on

which the prosecution relies cannot be held to be

adequate for connecting the accused with the

commission of the crime of criminal conspiracy...

13. ...The most important ingredient of the

offence being the agreement between two or

more persons to do an illegal act. In a case where

criminal conspiracy is alleged, the court must

inquire whether the two persons are

independently pursuing the same end or they

have come together to pursue the unlawful

object. The former does not render them

conspirators but the latter does. For the offence

of conspiracy some kind of physical

manifestation of agreement is required to be

established. The express agreement need not be

proved. The evidence as to the transmission of

thoughts sharing the unlawful act is not

sufficient...” (emphasis supplied)

23. The charge of conspiracy alleged by the prosecution against

the Appellant must evidence explicit acts or conduct on his part,

manifesting conscious and apparent concurrence of a common

2

(2000) 8 SCC 203.

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design with A-1 and A-2. In State (NCT of Delhi) v. Navjot Sandhu

3,

this Court held:

“101. One more principle which deserves notice

is that the cumulative effect of the proved

circumstances should be taken into account in

determining the guilt of the accused rather than

adopting an isolated approach to each of the

circumstances. Of course, each one of the

circumstances should be proved beyond

reasonable doubt. Lastly, in regard to the

appreciation of evidence relating to the

conspiracy, the Court must take care to see that

the acts or conduct of the parties must be

conscious and clear enough to infer their

concurrence as to the common design and its

execution.” (emphasis supplied)

24. In accepting the story of the prosecution, the Trial Court, as

well as the High Court, proceeded on the basis of mere suspicion

against the Appellant, which is precisely what this Court in

Tanviben Pankajkumar Divetia v. State of Gujarat

4, had cautioned

against:

“45. The principle for basing a conviction on the

basis of circumstantial evidences has been

indicated in a number of decisions of this Court

and the law is well settled that each and every

incriminating circumstance must be clearly

established by reliable and clinching evidence

and the circumstances so proved must form a

chain of events from which the only irresistible

conclusion about the guilt of the accused can be

safely drawn and no other hypothesis against

3

(2005) 11 SCC 600.

4

(1997) 7 SCC 156.

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the guilt is possible. This Court has clearly

sounded a note of caution that in a case

depending largely upon circumstantial evidence,

there is always a danger that conjecture or

suspicion may take the place of legal proof. The

Court must satisfy itself that various

circumstances in the chain of events have been

established clearly and such completed chain of

events must be such as to rule out a reasonable

likelihood of the innocence of the accused. It has

also been indicated that when the important link

goes, the chain of circumstances gets snapped

and the other circumstances cannot, in any

manner, establish the guilt of the accused

beyond all reasonable doubts. It has been held

that the Court has to be watchful and avoid the

danger of allowing the suspicion to take the place

of legal proof for sometimes, unconsciously it

may happen to be a short step between moral

certainty and legal proof. It has been indicated

by this Court that there is a long mental distance

between “may be true” and “must be true” and

the same divides conjectures from sure

conclusions. (Jaharlal Das v. State of Orissa

(1991) 3 SCC 27)”

(emphasis supplied)

25. It is not necessary that there must be a clear, categorical and

express agreement between the accused. However, an implied

agreement must manifest upon relying on principles established

in the cases of circumstantial evidence. Accordingly, in the

majority opinion of Ram Narayan Popli v. CBI

5, this Court had held:

“354. ... For the offence of conspiracy some kind

of physical manifestation of agreement is

5

(2003) 3 SCC 641.

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required to be established. The express

agreement need not be proved. The evidence as

to the transmission of thoughts sharing the

unlawful act is not sufficient...”

26. In view of the clear enunciation of law on the criminal

conspiracy by this Court, we find that the prosecution has failed

to produce any evidence whatsoever to satisfy the Court that there

was a prior meeting of minds between the Appellant and A-1 and

A-2. There is no physical manifestation of such a concurrence

extractable from surrounding circumstances, declarations, or the

conduct of the Appellant. The evidence is shorn of even a passive

acknowledgment of conspiracy of the Appellant with the accused,

let alone heralding a clear and conscientious participation of the

Appellant in the conspiracy. As noted above, this Court has

cautioned against replacing mere suspicion with the legal

requirement of proof of agreement.

27. For the reasons stated above we are of the opinion that the

prosecution failed to establish the circumstances in which the

Appellant, being the custodian of only one set of the keys for the

dual lock system functional in the Bank, could alone be made

responsible for providing access to the strong room and the safe in

the Bank. We are also of the clear opinion that the prosecution

failed to establish the existence of any agreement between the

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Appellant, A-1 and A-2, which is quintessential for a charge under

Section 120B of the IPC. In the absence of such an agreement,

even by inference through circumstantial evidence, the Appellant

is entitled to be acquitted of the charge of criminal conspiracy.

28. For the reasons and conclusions drawn by us, we hereby:

i) Allow Criminal Appeal No. 1066 of 2010.

ii) The judgment passed by the H igh Court of Madhya

Pradesh in Criminal Appeal No. 213 of 2006 dated

05.08.2008 and the judgment of the First Additional Sessions

Judge, Guna in Sessions Case No. 228 of 2004 , dated

07.03.2006, are hereby quashed and set aside.

iii) The Appellant is acquitted of all the charges.

iv) Parties to bear their own costs.

……………………………….J.

[B.R. GAVAI]

……………………………….J.

[PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

AUGUST 25, 2022