State Of U.P. vs Salim
2021 Latest Caselaw 11278 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- GOVERNMENT APPEAL No. - 31 of 2020
 

 
Appellant :- State of U.P.
 
Respondent :- Salim
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Brij Raj Singh,J.

Heard learned A.G.A. and perused the lower court record.

The instant appeal is directed against the judgment and order dated 28.09.2019, passed by the Additional Sessions Judge, Court No. 5, Bulandshahar in Sessions Trial No. 339 of 1996 (State vs. Salim), acquitting the accused respondent, under Sections 302, 120B IPC, Police Station Sikandrabad, District Bulandshahar.

The facts and circumstances giving rise to the instant appeal is that on 23..05.1995 at about 10:00 A.M. accused Mohd. Ragib and Irfan came to the shop and quarreled with Muzib Urrehman, uncle of the informant, Irfan Ahmad, over outstanding dues. In the evening at about 7:00 P.M. uncle of the informant and informant after closing the shop, while returning home, were intercepted by Mohd. Ragib, Irfan and Rizwan. Accused Irfan stabbed uncle (Muzib Urrehman) while Rizwan was holding his hand. A report came to be lodged by informant Irfan Ahmad under Section 307 IPC at about 19:50 hours. The deceased Muzib Urrehman succumbed to the injury. After investigation, a report (charge sheet) came to be filed under Section 302, 120B and 114 IPC. Accused Rakib and Rizwan died during trial in 1999 and 1996 respectively, accordingly, trial abated against them. Accused Irfan on the date of incident was aged about 16 years, consequently, matter was referred to the Juvenile Justice Board on 15.09.1997. Accused Salim was summoned to face the trial. Charge under Section 302 read with 120B IPC was framed against him. He denied the charge and sought trial. Accused was not named in the F.I.R., his name surfaced during trial as being conspirator to the crime. The prosecution to prove the charge examined PW-1 Irfan Ahmad, PW-2 Ibrahim, PW-3 Dr. Rajiv Kumar Gupta, PW-4 Dr. S. Kant Sharma, PW-5 Sarfaraz, PW-6 Rais Ahmad, PW-7 Retired Deputy Inspector Trilok Chand and PW-8 Police Inspector Jaswant Singh.

After the evidence of prosecution, accused recorded statement under Section 313 Cr.P.C. denying the charge. He further stated that he has been falsely implicated due to party bandi. Primarily the allegation against the accused respondent is that of conspirator, conspiring with the other accused in commission of the offence.

Irfan Ahmad, (PW-1) in cross examination stated that he had not seen accused Salim on the spot but he was subsequently informed that he was waiting in a Maruti vehicle about 100 meter from the place of incident. PW-2 claiming to be eye-witness stated that incident occurred 60-70 yards from the crossing where vehicle was parked. He stated that after commission of the offence, the accused fled towards the crossing where accused Salim was standing outside the vehicle. In cross examination, he, however, stated that he had seen accused Salim sitting in the vehicle. Sarfaraz (PW.-5) stated that about 7:00 P.M. he was in the market where he met Rais Ahmad (PW-6) who had come to purchase milk and they entered into a conversation. He further stated that vehicle was standing and accused Salim was sitting in the vehicle. In contradiction to the statement of PW-5, PW-6 stated that he had not gone to the market on the date of incident to purchase milk and accused Salim is not known to him. As per site plan (Ex.-4), place of incident is approximately 100 meters away from where the vehicle was parked at the crossing. As per statement of Ibrahim (PW-2), after the incident of stabbing accused fled towards the vehicle which was standing 60-70 yards from the place of the incident, he followed the accused 10-5 steps, thereafter, stopped. It is then he saw accused Salim standing outside the vehicle. In contradiction to the statement of PW-2, Sarfaraz (PW-5) who was in the market on the date of incident stated that he saw Salim sitting in the vehicle. Testimony of PW-2 was not relied upon being contrary and improbable as a person cannot be visible or identified from a distance. As per the site plan, distance of market from place of incident is 100 meters. PW-5 & PW-6 were declared hostile. Presence of the accused at the place of occurrence has not been proved beyond reasonable doubt.

Taking the case of prosecution that accused was present at the vehicle, ingredients of the offence of Section 120-B IPC is not made out as no credible or circumstantial evidence has been proved or shown by the prosecution to link the accused in conspiring with the other accused in commission of the offence. There is no evidence direct or circumstantial to show that the accused had in any manner agreed, aided or conspired in execution of the offence. The mere presence of the accused at a distance of 100 yards, and the accused running towards the vehicle after commission of the crime is not sufficient to bring home the charge of conspiracy beyond reasonable doubt against the accused-respondent. The presence of the accused was not proved, he was not named in the F.I.R., his name surfaced later during investigation.

Supreme Court in Bilal Hajar alias Abdul Hameed v. State1, considered the factors that must be present to constitute an offence under Section 120B IPC :

"30. Reading of Section 120A and Section 120B, IPC makes it clear that an offence of "criminal conspiracy" is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigor, two factors must be present in the case on facts: first, involvement of more than one person and second, an agreement between/among such persons to do or causing to be done an illegal act or an act which is not illegal but is done or causing to be done by illegal means.

The expression "criminal conspiracy" was aptly explained by this Court in a case reported in Major E.G. Barsay vs. State of Bombay2. Learned Judge Subba Rao (as His Lordship then was and later became CJI) speaking for the Bench in his distinctive style of writing said:

"31........ The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."

Therefore, in order to constitute a conspiracy, meeting of mind of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and every detail of the conspiracy, which is being hatched and nor it is necessary to prove their active part/role in such meeting.

In other words, their presence and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less to public at large.

It is for this reason, its existence coupled with the object for which it was hatched has to be gathered on the basis of circumstantial evidence, such as conduct of the conspirators, the chain of circumstances leading to holding of such meeting till the commission of offence by applying the principle applicable for appreciating the circumstantial evidence for holding the accused guilty for commission of an offence. (See also Baldev Singh vs. State of Punjab3.

Supreme Court in a decision rendered in Sharad Birdhichand Sarda Vs. State of Maharashtra4 held as follows:

"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra5 where the observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be' and ''must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Considering the inconsistency, improvement, contradiction and also the fact that essential ingredients to constitute the offence charged against the accused is not found to be proved beyond reasonable doubt, we are of the view that the view taken by the trial court is a possible view.

In view thereof, application (Leave to Appeal) is rejected. Consequently, government appeal is also dismissed.

Order Date :- 29.10.2021

Mukesh Kr.

(Brij Raj Singh,J)          (Suneet Kumar,J)