Delhi High Court
Kali Ram vs State on 12 May, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 22nd April, 2010
Judgment Pronounced on:12th May, 2010
+ CRL.APPEAL No.710/2008
KALI RAM ..... Appellant
Through: Mr.Tarun Kumar, Advocate for
Mr.Jitendra Kumar, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CRL.APPEAL No.717/2008
JOGENDER @ PAHALWAN ..... Appellant
Through: Ms.Shraddha Bhargava, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CRL.APPEAL No.967/2008
HARENDER SINGH & ANR. ..... Appellants
Through: Mr.Ashutosh Bhardwaj, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CRL.APPEAL No.995/2008
NARENDER SINGH ..... Appellant
Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 1 of 35
Through: Mr.Tanveer A.Mir, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Criminal law was set into motion on 18.07.2000 at about
10.25 PM when Const.Ramji Lal PW-8 recorded DD No.30,
Ex.PW-8/A, that at 10.05 PM a wireless information has been
received that a guard on duty in a workshop at 235 Okhla
Phase-III has been shot by an unknown person.
2. A copy of DD entry Ex.PW-8/A being handed over to him,
Inspector Sunil Kumar PW-29, accompanied by SI Satish PW-
22, HC Krishan Pal PW-4, Const.Samarpal PW-9 and
Const.Khemraj PW-19 proceeded to the workshop where he
met Radhey Shyam PW-12, who was injured and informed him
that one Krishanveer Rathi, employed in the workshop had
fired a shot at him. In the meantime, a PCR van reached the
workshop and removed Radhey Shyam to All India Institute of
Medical Sciences.
3. The premises in question was a workshop-cum-showroom
from where automobiles manufactured by „Ford‟ were sold. On
entering the showroom, the police officers saw Rishipal lying
dead in the courtyard and Aslam Khan and Muneshwar lying
dead in the power room. Leaving behind the constables to
guard the place of the crime, Inspector Sunil Kumar went to
AIIMS where he submitted an application Ex.PW-29/A to the
doctor concerned for recording the statement of Radhey
Shyam but could not do so as Radhey Shyam was not fit for
statement and hence Inspector Sunil returned to the place of
the crime. He made an endorsement Ex.PW-29/B beneath DD
entry Ex.PW-8/A and at around 12.30 AM recording the date
19.07.2000 handed over the same to HC Krishan Pal PW-4 for
FIR to be registered. At the police station HC Megh Raj PW-2
registered FIR No.401/2000, Ex.PW-2/A.
4. In the meantime, ACP V.K. Malhotra PW-33, reached the
spot and took over the investigation. He summoned the crime
team.
5. The crime team consisting of, amongst others, Const.
Ram Avtar PW-3, a photographer and Chet Ram PW-5, a Finger
Print Expert reached the spot. Chet Ram PW-5 inspected the
car found parked near the main gate of the showroom and
lifted seven chance prints thereon as recorded in his report
Ex.PW-5/A. Const.Ram Avtar PW-3, took the photographs
Ex.P4/1 to Ex.P4/23; negatives whereof are Ex.P3/1 to
Ex.P3/25.
6. Inside the Ford Ikon car parked near the main gate of the
showroom from which Chet Ram PW-5 lifted the chance prints,
ACP V.K.Malhotra saw a blood-stained polythene and a plastic
bag containing a kurta, a pyjama and a vest were lying and he
seized the same vide memo Ex.PW-10/D. He saw broken blood-
stained glass pieces lying scattered on the accountant‟s room
on the first floor of the showroom and he seized the same vide
memo Ex.PW-10/P. He saw a blood stained handkerchief lying
on the reception table kept in the hall of the showroom and
seized the same vide memo Ex.PW-10/C. He saw an empty
cartridge lying on the coffee counter in the showroom and an
empty cartridge lying on the ground near the coffee counter
and seized both vide memo Ex.PW-10/E. He saw an empty
cartridge and one bullet lead lying in the courtyard where Rishi
Pal was lying dead and he seized the same vide memo Ex.PW-
10/G. He saw an empty cartridge and a bullet in the power
room where Aslam and Muneshwar were lying dead and he
seized the same vide memos Ex.PW-10/J and Ex.PW-10/Q
respectively. He prepared the rough site plan Ex.PW-3/C of the
place of occurrence. He seized the dead bodies of Rishipal,
Aslam Khan and Muneshwar and sent the same to the
mortuary of AIIMS for post-mortem.
7. On 19.07.2000 Const.Khem Raj PW-14 went to AIIMS and
collected the clothes worn by Radhey Shyam at the time of the
occurrence and handed over the same to ACP V.K.Malhotra
vide memo Ex.PW-14/A.
8. On 20.07.2000 at about 12.25 PM Dr.T.Millo PW-6,
conducted the post-mortem on the dead body of Aslam and
prepared his report Ex.PW-6/A which records that a firearm
injury was found on the occipital region of skull of Aslam and
that the said wound was sufficient to cause death of Aslam in
the ordinary course of nature. After the post-mortem, the
doctor handed over the clothes and the blood sample of Aslam
on a gauze, by making separate parcels of the clothes and the
blood sample, to Const.Samarpal Singh PW-9, who in turn
handed over the same to ACP V.K.Malhotra vide memo Ex.PW-
9/A.
9. On 20.07.2000 at about 12.30 PM Dr.Chitranjan Behra
PW-25 conducted the post-mortem on the dead body of
Rishipal and prepared his report Ex.PW-25/A which records
that a firearm injury was found on the occipital region of the
skull of Rishipal; that the said injury was sufficient to cause
death of Rishipal in ordinary course of nature and that bullet
and pieces of bullet were found in the body of Rishipal. After
the post-mortem, the doctor handed over the clothes and the
blood sample of Rishipal on a gauze as also the bullet and
pieces of bullet found in the body of Rishipal, by making
separate parcels of the clothes, the bullet pieces and the blood
sample, to Const.Khemraj PW-14, who in turn handed over the
same to ACP V.K.Malhotra vide memo Ex.PW-14/B.
10. On 21.07.2000 at about 12.10 P.M. Dr.Sudhir Gupta PW-
27, conducted the post-mortem of Muneshwar and prepared
his report Ex.PW-27/A which records that a firearm injury was
found near the right ear of Muneshwar and that the said injury
was sufficient to cause death of Muneshwar in the ordinary
course of nature. After the post-mortem, the doctor handed
over the clothes and the blood sample of Muneshwar on a
gauze, by making separate parcels of the clothes and the
blood sample, to Const.Veer Singh.
11. In view of the fact that Radhey Shyam had told Inspector
Sunil Kumar that Krishanveer Rathi who was employed in the
showroom had fired, it was apparent that further breakthrough
could be achieved only after Krishanveer Rathi was in the
police net.
12. On 23.07.2000 a police team consisting of Inspector Sunil
Kumar PW-29, HC Krishan Pal PW-4 and ASI Vijender PW-21
arrested accused Krishnaveer Singh from village Tikri, Uttar
Pradesh as recorded in the arrest memo Ex.PW-21/A. On being
interrogated by Inspector Sunil Kumar PW-29, in the presence
of HC Krishan Pal PW-4 and ASI Vijender PW-21, accused
Krishnaveer Singh made a disclosure statement Ex.PW-21/C
wherein he stated that he, Sunil, Harender and Narender
hatched a conspiracy to commit robbery in the showroom in
question pursuant to which he and his aforesaid associates
committed robbery in the showroom in the night of 18.07.2000
and also murdered Aslam, Rishipal and Muneshwar during the
course of commission of said robbery; that the hand of
Harender got hurt by a broken glass piece during the course of
commission of robbery and that Harender used a handkerchief
to wipe the blood oozing out of his hand and left the said
handkerchief in the showroom in question; that he and the
aforesaid persons looted a cash box containing a sum of
Rs.75,080/- and a Ford Ikon car bearing registration No.DL-3C-
Q-4257 from the showroom in question; that he had handed
over a sum of Rs.30,000/- looted by him and his associates to
his father Kaliram; that he asked his cousin brother Jogender
to take the country made pistol used by him and his associates
in the crime from Narender as also sum of Rs.30,000/- lying in
the car looted by them and that he can get recovered the
country made pistol used by him in the crime and can point
out the spot where the cash box looted by him and his
associates from the showroom was thrown; that his three
associates along with the car were at the bhatta of Sunil and
he can get them arrested. Pursuant thereto, accused
Krishnaveer Singh got recovered a country made pistol lying
hidden in the heap of grass lying in his house which was seized
vide memo Ex.PW-21/D.
13. Thereafter Inspector Sunil Kumar PW-29, HC Krishan Pal
PW-4 and ASI Vijender PW-21, went to the parking at Ganesh
Ghat, Haridwar and found Ford Ikon car bearing registration
No.DL-3C-Q-4257 stationed there. (Why they went with
accused to Haridwar is not clear for the reason, as noted
above, in the disclosure statement Ex.PW-21/C Krishanveer
has disclosed that the car was with the three accused and they
were at the bhatta [brick kiln] of Sunil. It is not recorded that
Krishanveer disclosed that the car was in Haridwar.) After
sometime, accused Harender came near the car in question
and was arrested by the aforesaid police officers. On being
interrogated by Inspector Sunil Kumar PW-29, in the presence
of HC Krishan Pal PW-4 and ASI Vijender PW-21, accused
Harender made a disclosure statement Ex.PW-21/H3 wherein
he admitted his involvement in the crime in question.
Inspector Sunil Kumar PW-29, seized the car in question vide
memo Ex.PW-21/D.
14. On 24.07.2000 the police took accused Harender to AIIMS
Hospital where Dr.Amar Natha examined him and prepared his
MLC Ex.PW-20/A which records that a cut injury and abrasions
were found on the right palm of accused Harender. After
conduct of the medical examination, the doctor handed over
the blood sample of accused Harender on a gauze kept inside
a bottle to Const.Jai Kumar PW-17, who in turn handed over
the same to ASI Rajbala PW-13, vide memo Ex.PW-13/A.
15. On 25.07.2000 accused Krishnaveer Singh led ACP
V.K.Malhotra PW-33, Inspector Sunil Kumar PW-29 and HC
Krishan Pal PW-4, to a bridge at river Krishna and got
recovered a cash box from underneath the river and the same
was seized vide memo Ex.PW-29/E. Thereafter accused
Krishnaveer led the aforesaid police officers to his residence
wherefrom accused Kaliram was arrested. On being
interrogated by ACP V.K.Malhotra PW-33, in the presence of
Inspector Sunil Kumar PW-29 and HC Krishan Pal PW-4,
accused Kaliram made his disclosure statement Ex.PW-4/A
wherein he stated that he had taken a sum of Rs.30,000/- from
his son Krishnaveer Singh despite having clear knowledge of
the fact that the said money is the fruit of a crime committed
by Krishnaveer Singh and his associates and that he can get
recover Rs.22,000/- out of the said sum of Rs.30,000/-.
Pursuant thereto, he led the aforesaid persons to a room in his
house and got recovered a sum of Rs.22,000/- lying buried in
the floor of the said room and the same were seized vide
memo Ex.PW-4/B.
16. Thereafter accused Krishnaveer Singh led the aforesaid
police officers to the residence of accused Jogender wherefrom
accused Jogender was arrested. On being interrogated by ACP
V.K.Malhotra PW-33, in the presence of Inspector Sunil Kumar
PW-29 and HC Krishan Pal PW-4, accused Jogender made his
disclosure statement Ex.PW-4/C wherein he stated that he had
taken a country made pistol and a sum of Rs.30,000/- from
Ford Ikon car bearing registration No.DL-3C-Q-4257 despite
having clear knowledge of the facts that the said pistol was
used by accused Krishnaveer Singh and his associates in
commission of a crime and that the said money and car are
the fruits of the crime committed by them. Pursuant thereto,
accused Jogender led the aforesaid police officers to his
residence and got recovered a country made pistol, three live
cartridges and a sum of Rs.10,000/- kept in an „ala‟ in a wall of
a room of his house and the same were seized vide memo
Ex.PW-4/D.
17. On 12.01.2001 accused Narender was arrested by the
police. Upon his arrest, accused Narender made a disclosure
statement Ex.PW-29/J wherein he admitted his involvement in
the crime in question and stated that he can get recovered a
stereo and speakers installed in Ford Ikon car bearing
registration No.DL-3C-Q-4257 looted by him and his
associates. Pursuant thereto, accused Narender got recovered
a car stereo and two speakers from his house and the same
were seized vide memo Ex.PW-29/K.
18. On 09.07.2003 Inspector Neeraj Kumar PW-32, arrested
accused Sunil as recorded in the arrest memo Ex.PW-32/A. We
need not note the contents of the confessional statement of
accused Sunil as the same is completely inadmissible in
evidence as it admits of guilt. We note that neither any
recovery was effected nor was a fact discovered pursuant to
the confessional statement made by accused Sunil.
19. The seven chance prints found on the Ikon car parked
near the main gate of the showroom in question on the day of
occurrence and the specimen finger prints of accused
Krishnaveer Singh and Harender were sent to Forensic Science
Laboratory for comparison. Vide FSL report Ex.PW-5/B it was
opined that two chance prints detected on the car were
smudged and thus cannot be compared with the specimen
finger prints of the accused; that two chance prints detected
on the car are palm prints and that the specimen of the palm
prints of the accused were not sent to the bureau due to which
no comparison could be made with respect to said chance
prints and that remaining three chance prints detected on the
car do not match with the specimen finger prints of the
accused.
20. The seized materials i.e. polythene and plastic bag found
in the car parked near the main gate of the showroom on the
day of the occurrence as also the kurta, pyjama and the vest
contained in the said bag; broken glass pieces found in the
accountant‟s room of the showroom in question; handkerchief
found on the reception table kept in the showroom; the clothes
worn by Radhey Shyam at the time of occurence; the clothes
and the blood sample of Aslam, Rishipal and Muneshwar and
the blood sample of Harender were sent to Forensic Science
Laboratory for serological examination. Vide FSL reports dated
31.07.2001 it was opined that human blood of AB group was
detected on the handkerchief found on the reception table
kept in the showroom; human blood of group A was detected
on the polythene lying in the car parked near the main gate of
the showroom on the day of the occurrence; that human blood
of AB group was detected on the broken glass pieces kept in
the accountant room of the showroom; human blood of AB
group was detected on the clothes worn by Radhey Shyam at
the time of occurrence; that blood group of Aslam was AB; that
human blood of AB group was detected on the clothes worn by
Aslam at the time of occurrence; that blood group of Rishipal
and Muneshwar was A; that human blood of A group was
detected on the clothes worn by Rishipal and Muneshwar at
the time of the occurrence and that blood group of Harender
was A.
21. Since the learned Trial Judge has held that the blood
group of Harender is AB and that blood of same group was
detected on the handkerchief lifted from the scene of the
crime, it needs to be noted that the FSL report shows 22
exhibits being subjected to serological test. Four exhibits
being sealed paper envelope Ex.14, sealed paper envelope
Ex.17, sealed paper envelope Ex.19, sealed bottle Ex.22
contained blood samples. All of them were detected as having
human blood. Blood of Group A was detected on the gauze
piece Ex.14 and the gauze piece Ex.19. The blood group on
the gauze piece Ex.22 i.e. the gauze piece sent in the bottle
was of group AB. The maalkhana register Ex.PW-24/A
consisting of 12 pages shows that whereas three gauze
containing blood samples of Aslam, Rishipal and Muneshwar
were received in the maalkhana on the 20th and 21st of July
2000 and while making entry in the register it was recorded
that they are in an envelope, the blood sample of Harender
taken on a gauze and kept in a bottle by Dr.Amarnath on
24.7.2000 was shown received in the maalkhana on 24.7.2000
and the entry clearly records that the blood sample on a gauze
received in the maalkhana is in a bottle. It is thus apparent
that with reference to the report of the serologist the blood
group of Ex.22 was group A and this exhibit pertain to the
blood sample of Harender and thus Harender‟s blood could
not be on the handkerchief which was in parcel 1 and was
given Ex.1 in the FSL report by describing the same as a dirty
handkerchief for human blood of group AB was detected on
the said handkerchief.
22. The two empty cartridges found on/near the coffee
counter in the showroom in question; one empty cartridge and
bullet lead found in the courtyard of the showroom where dead
body of Rishipal was found; one empty cartridge and bullet
found in the power room of the showroom in question where
dead bodies of Aslam and Muneshwar were found; bullet and
bullet pieces found in the body of Rishipal; one country made
pistol recovered at the instance of accused Krishnaveer Singh
and one country made pistol and three live cartridges
recovered at the instance of accused Jogender were sent to
ballistic division of Forensic Science Laboratory. Vide FSL
report Ex.PW-33/F it was opined that the country made pistol
recovered at the instance of accused Krishnaveer Singh is in
working order and is designed to fire a standard 8mm/.315"
bore cartridge; that the country made pistol recovered at the
instance of accused Jogender is in working order and is
designed to fire a standard 7.65 mm cartridge; that the three
live cartridges recovered at the instance of accused Jogender
are live ones and can be fired through 7.65 mm calibre
firearm; that the bullets found in the power room and the body
of Rishipal respectively correspond to bullet of 8mm/.315"
bore cartridge and has been fired through a country made
pistol; that the empty cartridge found on the coffee table and
the bullet lead found in the courtyard of the showroom has
been fired through the country made pistol recovered at the
instance of accused Jogender; that the empty cartridges found
near the coffee table and courtyard of the showroom were not
fired through the country made pistol recovered at the
instance of accused Krishnaveer Singh and that no opinion
could be given regarding the fact that whether the bullets
found in the power room and the body of Rishipal were fired
through the country made pistol recovered at the instance of
accused Krishnaveer Singh.
23. Six persons were sent for trial being Sunil, Narender
Singh, Krishanveer Singh, Harender Singh, Jogender and
Kaliram. Charges under Sections 120-B, 302, 307 and 397 and
120-B IPC were framed against accused Krishnaveer Singh,
Harender, Narender and Sunil for having hatched a conspiracy
to commit a robbery at the showroom in question and having
murdered Rishipal, Aslam and Muneshwar; attempted to
murder Radhey Shyam and committed robbery by using a
deadly weapon in pursuance of the said conspiracy. Charges
under Section 411 IPC were framed against accused
Krishnaveer Singh, Harender, Kali Ram and Jogender for
having dishonestly retained stolen property. Charges under
Section 27 Arms Act were framed against accused Krishnaveer
Singh and Harender for having possessed a firearm in
contravention of Section 5 of Arms Act.
24. At the trial, the prosecution examined 33 witnesses.
25. We need not note the testimony of the various police
officials who participated in the investigation for they have
deposed regarding the respective role played by them in the
investigation which has already been stated by us in the
preceding paras.
26. Navin Kohli PW-7, deposed that he is the owner of the
showroom in question and the workshop at 235, Okhla Phase-
III, Delhi. On 19.07.2000 one police official named Sunil Mittal
informed him that a robbery has been committed in his
showroom. On reaching the showroom, he was informed that a
cash box containing a sum of Rs.72,080/- and a car bearing
registration No. DL-3C-Q-4257 has been looted by the dacoits
and that three persons are lying dead inside the showroom. It
is significant to note here that the cash box, car stereo and
two speakers recovered at the instance of accused
Krishnaveer Singh and Sunil respectively were not shown to
the witness and thus he did not identify the said exhibits as
either stolen from his showroom or removed from his car.
27. Anoop Singh PW-10, deposed that he is running a
security agency under the name and style of A+ Security
Services. In the intervening night of 18/19.07.2000 he was
present in his house when Naveen Kohli, the owner of the
showroom in question, rang him up and told him to
immediately come to the showroom in question. On reaching
the showroom, he saw that Rishipal, Muneshwar and a third
person were lying dead in the showroom. Rishipal and
Muneshwar were employed as security guards in his agency,
that he had deployed them at the showroom in question and
that their duty hours were from 10 P.M. to 06.00 A.M. He came
to know that the third person who was lying dead was the
driver of the owner of the showroom. He was informed by the
police that another security guard named Radhey Shyam has
also received injuries. Accused Krishnaveer Singh was also
employed as a security guard in his agency and was deployed
by him at the showroom in question prior to the day of
occurrence but he had terminated the services of Krishnaveer
Singh as his conduct was not satisfactory. The forms filled by
Rishipal, Radhey Shyam, Muneshwar and accused Krishnaveer
Singh in connection with their employment in his agency are
Ex.PW-10/B-1, Ex.PW-10/B-2, Ex.PW-10/B-3 and Ex.PW-10/B-4
respectively.
28. Radhey Shyam PW-12, deposed that on 18.07.2000 he
was employed as a security guard in A+ Security Services and
that his employer had deployed him at the showroom in
question on the said day. At about 09.30 P.M. he was present
in the showroom in question when suddenly someone fired a
shot at him from his back. Thereafter he became unconscious
and that someone removed him to AIIMS Hospital. He has no
knowledge about the identity of the person who fired a shot at
him.
29. Relevant would it be to note that Radhey Shyam did not
state that accused Krishanveer Singh had shot at him.
30. In their examination under Section 313 Cr.P.C. the
accused denied virtually everything and pleaded false
implication. It may be noted here that accused Harender
admitted that he was medically examined by a doctor in AIIMS
Hospital on 24.07.2000 and that the MLC Ex.PW-20/A was
prepared by the doctor in said regard in his examination under
Section 313 Cr.P.C.
31. In defence accused Kali Ram examined one Angrej Singh
DW-1, who deposed that accused Kali Ram was his neighbour
and that he paid Rs.50,000/- to Kali Ram in the year 2000.
32. The other accused did not lead any defence evidence.
33. Vide impugned judgment and order dated 15.07.2008,
save and except acquitting accused Sunil, the learned Trial
Judge convicted all the accused for the offences they were
charged of.
34. With respect to accused Krishnaveer Singh, the
circumstance used by the learned Trial Judge to infer his guilt
was that the cash box and the car looted from the showroom
in question were recovered at his instance.
35. With respect to accused Harender, following two
circumstances have been used by the learned Trial Judge to
infer his guilt:- (i) the fact that accused Harender came near
the car looted from the showroom in question when the car
was recovered at the parking at Ganesh Ghat, Haridwar shows
that he was aware about the location of the said car which in
turn establishes that he was a party to the conspiracy to
commit robbery in the showroom; and (ii) that his MLC Ex.PW-
20/A shows a cut on the right palm and his blood group was AB
and the same was the group of the blood found on the
handkerchief lifted from the showroom on the day of the
crime. It was held that it showed that Harender was in the
showroom and had used the handkerchief to either wipe the
blood which was oozing from his palm or to arrest the blood
flow.
36. With respect to accused Narender, the circumstance
used by the learned Trial Judge to infer his guilt was that the
stereo and the speakers installed in the car looted from the
showroom in question were recovered at his instance.
37. With respect to accused Kali Ram and Jogender, it has
been held by the learned Trial Judge that the fact that a sum of
Rs.22,000/- and Rs.10,000/- were concealed by Kali Ram and
Jogender respectively establishes that Kali Ram and Jogender
were aware about the fact that said money was looted money.
38. With respect to accused Sunil, it has been held by the
learned Trial Judge that there is not even a single piece of
evidence which could connect accused Sunil with the crime
with which he is charged.
LAW OF CONSPIRACY
39. As conspiracy is the primary charge against the accused,
we first advert to the law of conspiracy - its definition,
essential features and proof.
40. Section 120-A defines „criminal conspiracy‟ as under:-
"Definition of criminal conspiracy - When two or
more person agree to do, or cause to be done, (1) An
illegal act, or (2) An act which is not illegal by illegal
means, such an agreement is designated a criminal
conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in
pursuance thereof Explanation: - It is immaterial
whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object."
41. Proof of a criminal conspiracy by direct evidence is not
easy to get and probably for this reason Section 10 of the
Indian Evidence Act was enacted. It reads as under:-
"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 any one 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
purpose of proving the existence of the conspiracy
as for the purpose of showing that any such person
was a party to it."
42. Thus, the substantive section of the IPC i.e. Section 120-A
adumbrated thereon Section 10 of the Indian Evidence Act
give us the legislative provisions applicable to conspiracy and
its proof.
43. A conspiracy is a march under a banner. The very
agreement, concert or league is the ingredient, of the offence
like most crimes, conspiracy requires an act (actus reuse) and
an accompanying mental state (mens rea). From the definition
of conspiracy in Section 120-A, it is evident that the agreement
constitutes the act and the intention to achieve unlawful object
constitutes the mental state. All conspirators are liable for the
crimes committed in furtherance of the conspiracy besides
being liable for committing an offence of conspiracy itself.
Pertaining to conspiracy, law punishes conduct that threats to
produce the harm as well as the conduct that actually
produces the harm. In this, lies the difference between the
offence of conspiracy and general penal offences. In case of
general offences, attempt to commit a crime merges when the
crime is completed but in case of conspiracy, punishment is for
both, the conspiracy and the completed crime. This
distinctiveness of the offence of conspiracy makes all
conspirators as agents of each other. Conspiracy, thereforee,
criminalizes the agreement to commit a crime. Inherently,
conspiracy is a clandestine activity. Its covenants are not
formed openly. It has to be inferred from circumstantial
evidence of co-operation.
44. If conspiracies are hatched in the darkness of secrecy
and direct evidence is seldom forthcoming and if the offence is
to be proved in relation to the acts, deeds or things done by
the co-conspirators, the question would arise as to what is the
nature of these acts, deeds or things. Is merely moving around
together or seen in each other's company sufficient? If not,
what more should be there from which it could be inferred that
the conspirators were acting to achieve the desired offence in
furtherance of a crime.
45. In the decision reported as State of Maharashtra & Ors. v.
Som Nath Thapa & Ors. (1996) 4 SCC 659 illuminating on this
grey area, the Supreme Court observed that for a person to
conspire with another, he must have knowledge of what the
co-conspirators were wanting to achieve and thereafter having
the intent to further the illegal act takes recourse to a course
of conduct to achieve the illegal end or facilitate its
accomplishment. Except for extreme cases, intent could be
inferred from knowledge for example whether a person was
found in possession of an offending article, no legitimate use
of which could be done by the offender. To illustrate, a person
is found in possession of 100 Kg. of RDX, is proved to be
visiting or visited by "A" against whom there is a charge of
conspiring to blow up a public place. Here, the recovery of the
offending article would be enough to infer a charge of
conspiracy. However, such instances apart, it was held that
law would require something more. This something more
would be a step from knowledge to intent. This was to be
evidenced from informed and interested cooperation,
simulation and instigation. The following passage from People
v. Lauria 251, California APP 2 (d) 471 was cited.
"All articles of commerce may be put to illegal
ends,.... but all do not have inherently the same
susceptibility to harmful and illegal use....This
different is important for two purposes. One is for
making certain that the seller knows the buyer's
intended illegal use. The other is to show that by
the same he intends to further promote and
cooperate in it. This intent, when given effect by
overt act, is the gist of conspiracy. While it is not
identical with mere knowledge that another
proposes unlawful action, it is not unrelated to such
knowledge........ The step from knowledge to intent
and agreement may be taken. There is more than
suspicion, more than knowledge, acquiescence,
carelessness, indifferent, lack of concern. There is
informed and interested cooperation, simulation,
instigation."
46. To elucidate further, it is most apposite to quote
following observations of Supreme Court in the decision
reported as Kehar Singh v State (Delhi Administration)
AIR 1988 SC 1883:-
"Generally, a conspiracy is hatched in secrecy and
it may be difficult to adduce direct evidence of the
same. The prosecution will often rely on evidence of
acts of various parties to infer that they were done
in reference to their common intention. The
prosecution will also more often rely upon
circumstantial evidence. The conspiracy can be
undoubtedly proved by such evidence direct or
circumstantial. But the Court must enquire whether
the two persons are independently pursuing the
same and or they have come together to the
pursuit of the unlawful object. The former does not
render them conspirators, but the latter is. It is,
however, essential that the offence of conspiracy
requires some kind of physical manifestation of
agreement. The express agreement, however, need
not be proved. Nor actual meeting of two persons is
necessary. Nor it is necessary to prove the actual
words of communication. The evidence as to
transmission of thoughts sharing the unlawful
design may be sufficient. Gerald Orchard of
University of Canterbury, New Zealand 1974 C L R
297 explains the limited nature of this proposition:
Although it is not in doubt that the
offence requires some physical
manifestation of agreement, it is
important to note the limited nature of
this proposition. The law does not
require that the act of agreement take
any particular form and the fact of
agreement may be communicated by
words or conduct. Thus, it has been said
that it is unnecessary to prove that the
parties "actually came together' and
agreed in terms" to pursue the unlawful
object; there need ever have been an
express verbal agreement, it being
sufficient that there was "a tacit
understanding between conspirators as
to what should be done.
I share this opinion, but hasten to add that the
relative acts or conduct of the parties must be
conscientious and clear to mark their concurrence
as to what should be done. The concurrence cannot
be inferred by a group of irrelevant facts artfully
arranged so as to give an appearance of coherence.
The innocuous, innocent or inadvertent events and
incidents should not enter the judicial verdict. We
must thus be strictly on our guard.
47. Since more often than not, conspiracy would be proved
on circumstantial evidence, four fundamental requirements as
laid down as far back as in 1881 in the judgment reported 60
years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur
Sapru i.e. 1941 All ALJR 416, Queen Empress v. Hoshhak may
be re-emphasized:-
I. That the circumstances from which the conclusion is
drawn be fully established;
II. That all the facts should be consistent with the
hypothesis of guilt;
III. That the circumstances should be of a conclusive nature
and tendency;
IV. That the circumstances should, by a moral certainty,
actually exclude every hypothesis but the one proposed to be
proved;
48. The discussion pertaining to standard of proof required
for proving the offence of conspiracy can be summarized by
the following observations of Supreme Court in the decision
reported as State (NCT of Delhi) v Navjot Sandhu AIR 2005 SC
3820:-
"A few bits here and a few bits there on which the
prosecution relies cannot be held to be adequate for
connecting the accused in the offence of criminal
conspiracy. (Emphasis Supplied)
CASE AGAINST ACCUSED HARENDER
49. As already noted hereinabove, the first circumstance
used by the learned Trial Judge to infer the guilt of accused
Harender was that accused Harender came near the Ford Ikon
car looted from the showroom in question. According to the
learned Trial Judge, the said fact shows that accused Harender
was aware of the whereabouts of the car in question after it
was looted from the showroom in question which in turn
establishes that accused Harender was a party to the
conspiracy to commit robbery at the showroom in question.
50. We fail to understand the logic behind the aforesaid
finding of the learned Trial Judge. The fact that a person came
near a stolen car does not lead to the conclusion that he
participated in the crime of theft/robbery of the said car.
Further, the car in question was found parked in an open
public parking at Haridwar and any person could have
innocently walked up to the car. The police officers who have
proved the recovery of the car have not deposed that
Harender was inside the car or was doing anything to the car.
They have simply deposed that when they reached the parking
and saw the car they also saw Harender nearby.
51. The next circumstance used by the learned Trial Judge to
infer the guilt of accused Harender is that human blood of
group AB which was the blood group of accused Harender was
also detected on the handkerchief lifted from the scene of the
crime and the twin fact of Harender having a cut injury on his
right palm and blood of his group found on the handkerchief
were incriminating evidence.
52. This finding is clearly wrong and it is apparent that the
learned Trial Judge has not bothered to carefully peruse the
report of the serologist and as has been noted by us in para 21
above which clearly shows that Harender‟s blood group was A
and not AB. It is apparent that the learned Trial Judge has
simply noted that out of four blood samples sent since one of
them had blood of group AB thereon and there from simply
concluded, without any analysis, that this was the blood group
of Harender.
53. This is probably for the third time we are detecting such
errors. We have repeatedly emphasized that reports of
serologist need to be connected with the various recovery
memos when blood samples or blood stained exhibits are lifted
from time to time and with reference to the seal of the
investigating officer or the agency sealing the same and the
description of the exhibit, it being within a parcel, envelope or
a bottle, the same has to be interlinked and then distinctly
noted with accuracy as to what got detected where and on
what.
CASE AGAINST ACCUSED KRISHNAVEER SINGH
54. As already noted hereinabove, the circumstance used by
the learned Trial Judge to convict accused Krishnaveer Singh
was that the cash box and Ford Ikon car looted from the
showroom in question were recovered at the instance of
accused Krishnaveer Singh.
55. Pertaining to the car being recovered at the instance of
Krishanveer Singh, as noted in para 13 herein above, in his
disclosure statement Krishanveer Singh has nowhere stated
that the car was lying parked at Ganesh Ghat, Haridwar. None
of the police officers associated with the recovery i.e.
Insp.Sunil Mittal PW-29 and ASI Vijender Singh PW-21 have
deposed that Krishanveer led them to the parking and pointed
out the car or the spot where it was found. In fact ASI Vijender
Singh has spoken not a word about Krishanveer‟s presence
when the car was recovered. Insp.Sunil Mittal has simply said
that when the police was with Krishanveer Singh at Ganesh
Ghat, the car was recovered.
56. Pertaining to the cash box got recovered by Krishanveer
Singh, in the absence of any witness identifying the same as
the one which was stolen has rendered said recovery
meaningless and nothing incriminating remains in the same.
57. However, in view of the testimony of the police officials
it does stand proved that a country made pistol was recovered
at the instance of accused Krishnaveer Singh. The aforesaid
police officials deposed that accused Krishnaveer Singh got
recovered a country made pistol lying hidden in the heap of
grass lying in his house. The aforesaid police officials were
cross-examined at length but nothing tangible could be elicited
therefrom which could cast a doubt on their evidence
pertaining to recovery of a country made pistol at the instance
of accused Krishnaveer Singh.
58. It is true that Krishanveer Singh has disclosed that
Harender has an injury on his palm, which knowledge of
Krishanveer has been found to be correct for indeed Harender
had an injury on his palm, but since Krishanveer and Harender
are friends it is possible that the source of this knowledge was
when the two met. Since the group of the blood found on the
handkerchief lifted from the scene of the crime is AB and blood
group of Harender is A, linking Harender to the scene of the
crime through the medium of the handkerchief is
impermissible and thus linking Krishanveer to the scene of the
crime as the extension of said reasoning through the medium
of the handkerchief and the injury is equally impermissible.
CASE AGAINST ACCUSED NARENDER
59. The solitary circumstance used by the learned Trial Judge
to infer the guilt of accused Narender is that he got recovered
the stereo and speakers installed in the car looted from the
showroom in question.
60. A perusal of the evidence led by the prosecution shows
that none of the witnesses of the prosecution has deposed
having witnessed the recovery of the stereo and the speakers
in question at the instance of accused Narender. The only
witness who has stated a word about the recovery in question
is ASI Vijender PW-21, who has merely deposed that the stereo
and speakers in question were recovered from the house of
accused Narender at his instance. ASI Vijender PW-21, has not
deposed that the stereo and speakers in question were got
recovered by accused Narender from his house in his
presence. The same are even otherwise ordinary objects and
there is no evidence of the same having any distinct identity
marks. The same were not even put up for any TIP.
CASE AGAINST ACCUSED KALI RAM
61. There is no evidence to show that sum of Rs.22,000/-
recovered at the instance of Kali Ram was the money which
was looted from the showroom in question. The only
incriminating circumstance against accused Kali Ram is that
the said sum of Rs.22,000/- was found buried in the floor of a
room in his house.
CASE AGAINST ACCUSED JOGENDER
62. With respect to recovery of Rs.10,000/- at the instance of
accused Jogender, again there is no evidence to show that the
said sum was the money which was looted from the showroom
in question. With respect to recovery of country made pistol at
the instance of accused Jogender, no evidence has been led by
the prosecution to show that the house wherefrom said pistol
was recovered was in the exclusive possession of accused
Jogender. The pistol was got recovered by accused Jogender
from an ala in the wall of his house. But, there is no evidence
to show that the house wherefrom the pistol was got
recovered by accused Jogender was in his exclusive
possession. There is no evidence that the pistol was found
hidden or was not "ordinarily visible".
CONCLUSION
63. Thus, we have no evidence whatsoever interlinking any
of the accused save and except Krishanveer Singh‟s
knowledge that Harender was having an injury on his right
palm. There is no evidence of the accused meeting each
other. There is just no evidence to establish any conspiracy.
64. The evidence against accused Harender, as discussed in
paras 49 to 53 above brings out no incriminating evidence
against him and that his right palm had a cut being rendered
meaningless inasmuch as Harender‟s blood group is A and
blood group detected on the handkerchief recovered from the
scene of the crime is AB, the inevitable conclusion is that
Harender has to be acquitted.
65. As against accused Krishanveer the only evidence which
is incriminating against him pertains to the recovery of the
country made pistol at his instance and for which offence his
conviction for the offence punishable under Section 27 of the
Arms Act has to be sustained. For the reasons noted in paras
54 to 56 above the other link evidence has failed to attain
incriminating status and hence Krishanveer‟s Appeal has to
succeed save and except his conviction of the offence under
Section 27 of the Arms Act.
66. For the reasons stated in paras 59 to 61 above accused
Narender and Kali Ram are entitled to the benefit of doubt and
for the reasons stated in para 62 above Jogender is entitled to
be acquitted.
67. The net result of the above conclusion is that Appeals
filed by Harender, Jogender, Narender and Kali Ram are
allowed. They are acquitted of all the charges framed against
them. Accused Krishanveer is acquitted of all the charges
framed against him save and except for the offence
punishable under Section 27 of the Arms Act and for which
offence the sentence imposed against him is maintained.
Sentence imposed upon him for other offences are set aside.
68. In view of the above findings, noting that Kali Ram and
Jogender have been admitted to bail pending hearing of their
appeals, the bail bonds and surety bonds furnished by them
are discharged. Noting that Harender, Krishanveer and
Narender are in jail and noting that Krishanveer has remained
in prison for a period in excess of the sentence imposed upon
him we direct that they be released forthwith unless required
in custody in some other case.
69. Three copies of the instant decision pertaining to the
appeals filed by Harender, Krishanveer and Narender be sent
by the Registry to the Superintendent, Central Jail Tihar for
compliance.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
MAY 12, 2010
mm / dk
