Jharkhand High Court
Simon Jojo vs The State Of Jharkhand on 5 April, 2023
Criminal Appeal (D.B.) No. 488 of 2014
With
Criminal Appeal (D.B.) No. 690 of 2014
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[Against the judgment of conviction dated 30.05.2014 and order of
sentence dated 31.05.2014 passed by Sri Om Prakash Srivastava, learned
Additional Sessions Judge-II, Chaibasa in Sessions Trial No. 264 of 2009]
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Simon Jojo ... ... Appellant
(In Criminal Appeal (D.B.) No. 488 of 2014)
1. Nirbhik Hembrom
2. Suraj Topno ... ... Appellants
(In Criminal Appeal (D.B.) No. 690 of 2014)
Versus
The State of Jharkhand ... ... Respondent
(In both Cases)
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For the Appellants : Mr. Peter Martin T.J., Adv.
(Criminal Appeal (D.B.) No. 488 of 2014)
Mr. Deepak Kumar, Adv.
(Criminal Appeal (D.B.) No. 690 of 2014)
For the Respondent : Mr. Suraj Verma, Special P.P.
(In both cases)
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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C.A.V. on 04/08/2022 Pronounced on 05/04/2023
Heard Mr. Peter Martin T.J., learned counsel for the
appellant in Cr. Appeal (DB) No. 488 of 2014, Mr. Deepak
Kumar, learned counsel for the appellants in Cr. Appeal (DB) No.
690 of 2014 and Mr. Suraj Verma, learned Special P.P. for the
State.
2. Since both these appeals arise out of a common
judgment the same are being disposed of by this common order.
3. This appeal is directed against the judgment of
conviction dated 30.05.2014 and order of sentence dated
31.05.2014 passed by Sri Om Prakash Srivastava, learned
Additional Sessions Judge-II, Chaibasa in Sessions Trial No. 264
of 2009, whereby and whereunder the appellants have been
convicted for the offences punishable u/s 307/120(b),
353/120(b), 398/120(b), 427/120(b), 302/120(b) of the IPC and
Section 17(2) of the C.L.A. and have been sentenced to undergo
R.I. for life for the offence punishable u/s 302/120(b) of the IPC
along with a fine of Rs. 10,000/- and in default of payment of
fine to undergo S.I. for 06 months, R.I. for 05 years and a fine of
Rs. 10,000/- for the offence punishable u/s 307/120(b) of the
IPC and in default in payment of fine to undergo S.I. for 03
months, R.I. for 02 years for the offence punishable u/s
353/120(b) of the IPC, R.I for 07 years for the offence punishable
u/s 398/120(B) of the IPC and R.I. for 02 years for the offence
punishable u/s 427/120(b) of the IPC as well as S.I. for 03 years
for the offence punishable u/s 17(2) of the C.L.A. Act/120(b) of
the IPC. All the sentences were directed to run concurrently.
4. The written report of Yogi Kharia, Police Inspector,
Manoharpur Circle dated 10.06.2009 reveals that on 08.06.2009
on the orders of the Superintendent of Police, West Singhbhum
Police officials under his leadership left for Serengda Base Camp
for carrying out a special operation. It has been stated that on
10.06.2009 at 5:30 A.M. the Police force and CRPF personnel
started going towards Goilkera P.S. on foot and they were
accompanied by two anti-land mines vehicle, one Max pick up
van, a Tata 709 vehicle, a Tata 407 vehicle and a Spacio. After
marching to Rashgarha village on foot they started towards
Goilkera P.S. on the vehicles. It has been alleged that when they
reached Chitirghati at 8:00 A.M. a loud explosion was heard
followed by sounds of firing. The Maoists were shouting and were
exhorting the assailants to loot the arms and ammunitions of the
Police and to get release their three comrades. The Police
personnel also started counter firing. After the firing continued
for one hour the extremists stopped firing and when the
informant and others rushed to the spot where the blast had
taken place they found that due to a land mine blast the Spacio
vehicle of Goilkera P.S. had become a mangled ruin and the
bodies of Officer-in-Charge of Goilkera P.S. Philip Tete, Sub-
Inspector Prem Kumar Hembrom, Driver Rambabu Singh, NCP
1252 Dinesh Besra, NCF 1230 Ranvir Bhardawaj, NCF 1313
Ram Gahan Paswan, NCP 1271 Dindayal Yadav, NCF 1345
Dhananjay Yadav, NCF 1214 Man Mohan Pandey were found in
a disfigured state scattered around the place. The extremists
were chased, but taking advantage of the dense foliage they
managed to escape. The incident was reported to the superior
Police officials and a request was made to send reinforcement.
Based on the aforesaid allegations Goilkera P.S. Case
No. 16/2009 was instituted for the offences punishable u/s 147,
148, 149, 307, 353, 302, 120(B), 398, 427 of the IPC, Section 27
of the Arms Act, Section 17 of the C.L.A. Act, Section 13 of the
UA(P) Act and Section 3/4 of the Explosive Substances Act
against 14 named accused persons and 80-90 unnamed
persons. On completion of investigation charge-sheet was
submitted against the accused persons and after cognizance was
taken the case was committed to the Court of Sessions where it
was registered as Sessions Trial No. 264 of 2009. Charge was
framed against the accused persons for the offences punishable
u/s 147, 148, 307/149, 353/149, 302/149, 120(b), 398,
427/149 of the IPC, Section 27(3) of the Arms Act, Section 17 (2)
of the C.L.A. Act and Section 3(B) of the Explosive Substances
Act which was read over and explained to the accused to which
they pleaded not guilty and claimed to be tried.
5. The prosecution has examined as many as seventeen
witnesses in support of its case.
6. P.W.1 (Nilesh Bhagat) was posted in NCF at Goilkera
P.S. and on 10.06.2009 at 5:30 A.M. he had left for Goilkera P.S.
from Serengda and along with him were the Officer-in-Charge of
Sonua P.S., other Police officials and the three persons arrested
by the Police. He and some other Police officials sat on a Scorpio
vehicle at Serengda village. There were about seven vehicles. It
has been stated that at around 8:00 A.M. when they reached
Chitirghati there was a loud explosion and a Spacio vehicle was
blown up. The extremists had started firing and it was countered
by the Police force. The encounter went on for one hour and
when it stopped they started searching near the distorted Spacio
vehicle and after collecting the bodies they came back to
Goilkera P.S. The incident was carried out by the naxalites in
order to free their three comrades.
In cross examination, he has deposed that on
07.06.2009 in the morning in between 7:00-8:00 A.M. he had
left Goilkera P.S. for Serengda Middle School where they reached
at 4:00 P.M. He was on Sentry duty in the terrace of the School.
He had stayed at the School till 09.06.2009 and left on
10.06.2009. They had left Serengda on foot at 05:30 A.M. They
had walked for about 5-6 Kilometers before reaching Rashgarha.
He had told the Police that in the vehicle behind them the three
arrested extremists were sitting. He has stated that the place
from where the firing was being made was a dense forest and the
extremists were hiding behind big trees while firing. Some of the
dead bodies were in a mangled condition.
7. P.W.2 (Sanjay Dungdung) was posted as an Inspector
in Goilkera P.S. and on 10.06.2009 he was returning from the
camp to Goilkera P.S. The NCF and CRPF Jawans were with
him. They walked till Sarugara and thereafter boarded on
vehicles. When they reached Chitirghati due to a land mine blast
a Spacio vehicle was damaged. He has stated that the Maoists
thereafter had started firing and the security forces also resorted
to retaliatory fire. The Inspector Parimal Parwal was shot at from
behind. After the firing stopped the mangled dead bodies of some
of the members of force could be found and the dead bodies were
taken to Goilkera P.S. The firing and the blast was done by the
extremists to free Nirbhik Hembrom, Suraj Topno and Simon
Jojo (appellants) from Police custody.
In cross-examination, he has deposed that his
statement was recorded by the Deputy Superintendent of Police.
He had told the Police that all the members of the force had
boarded their vehicles at Sarugarha for Goilkera.
8. P.W.3 (Yogi Kharia) is the informant who was posted
as an Inspector in Manoharpur Circle and on 08.06.2009 at
about 7:00-8:00 A.M. he had left Goilkera P.S. for the Base
Camp at Serengda. On 10.06.2009 at 5:30 A.M. the Police force
started returning from Serengda on foot and along with them
were the three extremists. After about 5-6 Kilometers they
reached Serengda forest and thereafter the Police force reached
Chitirghati on their vehicles at about 8:00 A.M. He has stated
that all of a sudden a blast took place at the Spacio vehicle
which was coming behind the vehicle in which this witness was
sitting and firing started from three sides by the extremists. The
Police force also started firing in self defence. The encounter
went on for an hour. The extremists wanted to free the arrested
extremists but being outmaneuvered and outnumbered they
managed to flee away. After the firing had stopped he went to the
place where the blast had taken place and it was found that the
Spacio vehicle was substantially damaged and several Police
personnel were found dead. He had informed his superior Police
officials about the incident. He has proved the written report
which has been marked as Exhibit-1. He has proved the seizure
list of broken rifles and cartridges which has been marked as
Exhibit-2.
In cross-examination, he has deposed that he had
prepared the seizure list at the place of occurrence itself. He had
not sealed the seized articles.
9. P.W.4 (Jagdeo Singh) has deposed that the incident is
of 10.06.2009. At Serengda, three extremists were apprehended
and at Chitirghati where they reached at about 8:30 A.M. there
was a blast which damaged one vehicle and firing started from
three sides. There was a counter firing made from the side of the
Police force and the encounter lasted for one hour. He has stated
that the naxalites ultimately fled away. On verification it was
found that nine Police personnel and an Inspector of CRPF had
died due to the blast. He has identified the three accused in
Court.
In cross-examination, he has deposed that they had
left for Serengda from Goilkera at 5:00 P.M. and reached
Serengda at 6:30 P.M. While going from Goilkera to Serengda he
was in the anti-land mine vehicle. At the time of firing no bullet
had hit his vehicle. He and the others had deboarded from the
vehicle and had made counter firing.
10. P.W.5 (Ashok Paswan) has stated that on 10.06.2009
he was coming from the Base Camp to Goilkera P.S. and at
Chitirghati there was a blast at which several persons of the
Police force and an Inspector of CRPF had died. After the blast,
the naxalites started firing and a counter firing was also made.
The naxalites had carried out the operation in order to free three
of their brethren who were apprehended by the Police. He has
identified all the three apprehended naxalites in Court.
In cross-examination, he has deposed that at the time
of the incident he was in the anti-land mine vehicle.
11. P.W.6 (Rameshwar Tigga) has deposed that on
10.06.2009 he was posted at Goilkera P.S. and he had gone to
Serengda camp from Goilkera and after camping for two days he
and the others were returning to Goilkera P.S. They had left
Serengda camp at 5:00 A.M. and had come to Sarugarha village
on foot. Thereafter they had boarded on vehicles. After travelling
2½ kilometers when they reached near Chitirghati an explosion
took place on the road at around 8:00-8:30 A.M. Due to the
bomb blast eight Jawans, an Officer-in-Charge and a CRPF
Inspector died. The firing had continued for 1-1½ hours. The
bodies were taken to Goilkera P.S. He has failed to identify the
three persons who were being taken from Serengda in Court.
In cross-examination, he has deposed that he does not
know as to who else were sitting with him in the vehicle.
12. P.W.7 (Jamin Singh Munda) was posted as a constable
in Goilkera P.S. and on 10.06.2009 he had gone to Serengda and
when they were returning to Goilkera P.S. near Chitirghati a
blast had taken place. The Spacio vehicle of Goilkera P.S. was
damaged and several Police personnel had died. After the blast
firing had taken place between the extremists and the Police
personnel. The extremists were taking the name of Prasad Ji,
Nirmal Da and others. A CRPF Inspector had died during firing.
He has stated that the blast was done in order to target the
Police.
In cross-examination, he has deposed that the place of
occurrence is a dense forest. He has stated that none of the
vehicles were sprayed with bullets. The arrested extremists were
in the vehicle in which this witness was travelling. After the blast
he had deboarded from the vehicle but the three extremists were
sitting inside.
13. P.W.8 (Parsuram Paswan) was posted as Officer-in-
Charge of Sonua P.S. and on 08.06.2009 on the orders of his
superior authorities he had left for the Base Camp at Serengda
for a special operation under the leadership of the Inspector of
Manoharpur Circle and the Police force had also accompanied
them. On 10.06.2009 all the Police officials and Jawans had left
Serengda at 5:30 A.M. along with the three apprehended
accused in Goilkera P.S. Case No. 15/09. They had reached
Sarugara village on foot and thereafter they boarded the vehicles.
He has stated that at about 8:00 A.M. when they crossed
Chitirghati More there was a loud explosion followed by a firing.
He immediately jumped out of his vehicle. The extremists Pankaj
Ji, Prasad Ji @ Krishna Ahir while firing were taking the names
of Marshal Da, Nirmal Ji, Anmol Ji and others and were giving
instructions to surround the Police force, fire at them and loot
their arms and ammunitions. He and the other members of the
Police force took stock of the situation and started firing at the
extremists. Pankaj Da and Prasad Ji were giving instructions to
their colleagues to search out the three apprehended naxalites.
The firing went on for about an hour. After the firing stopped
they went to the place where the explosion had taken place and
had found the Tata Spacio vehicle of Goilkera P.S. damaged and
mangled bodies of several Police personnel lying in a scattered
condition.
In cross-examination, he has deposed that the
custody of the three arrested accused was with the NCF Jawans.
He had never arrested Pankaj Ji or Prasad Ji.
14. P.W.9 (Ranjay Singh) has stated that the incident is of
10.06.2009 when Simon Jojo, Suraj Topno and Nirbhik
Hembrom were being taken to Goilkera P.S. from Serengda Base
Camp. As soon as they reached near Chitirghati at 8:00 A.M. an
explosion had occurred and several Police personnel had died.
The extremists had started firing from three sides and the Police
force had also made a retaliatory fire. The encounter continued
for two hours. When the firing stopped the dead bodies of the
Police personnel were taken to Goilkera P.S.
In cross-examination, he has deposed that he was in
the anti-land mine vehicle. He had fired four rounds from his
AK-47 rifle.
15. P.W.10 (Sudhir Mahto) has stated that on 10.06.2009
he was returning from Serengda Base Camp to Goilkera P.S. and
at about 8:00 A.M. when he reached Chitirghati due to an
explosion one vehicle was damaged. The extremists were firing
and the Police force also retaliated. Due to the explosion ten
Police personnel had died. The explosion was resorted to by the
extremists to kill Police officials, to loot arms and ammunitions
and to get freed the three extremists arrested by the Police. After
the firing stopped all the dead bodies were brought to Goilkera
P.S.
In cross-examination, he has deposed that he had
fired five rounds from his insas rifle.
16. P.W.11 (Dharam Das Aind) has stated that he and the
others on 10.06.2009 were returning to Goilkera P.S. from
Serengda Base Camp and at about 8:30 A.M. when they reached
Chitirghati an explosion occurred which damaged a vehicle and
led to the death of all the Police personnel travelling in that
vehicle. There was an exchange of firing between the extremists
and the Police personnel and after half an hour of firing the
extremists fled away. All the dead bodies were brought to
Goilkera P.S. He has stated that the extremists wanted to free
three of their brethren who were arrested by the Police and the
same was the reason for the incident.
In cross-examination, he has deposed that the
extremists were firing from a distance of 1½ Kilometers from the
place where he was stationed. Since an explosion had taken
place the same influenced their thought process that the
extremists wanted to free the three apprehended accused. The
three extremists were arrested the day before the incident. None
of the apprehended accused had any conversation with the other
extremists after their arrest.
17. P.W.12 (Daud Kiro) has stated that the incident is of
10.06.2009. On 08.06.2009, he had accompanied the Officer-in-
Charge Parsuram Paswan to Goilkera P.S. From Goilkera P.S. he
had proceeded for Serengda along with Sub-Inspector Jogi
Kharia who was leading the Police force, Inspector Parimal
Parwal of CRPF along with his battalion, Officer-in-Charge
Goilkera P.S. Philip Tete, ASI Prem Kumar Hembrom and twenty
three Jawans of NCF. Their Base Camp was at Serengda Middle
School. While staying there three persons namely Nirbhik
Hembrom, Suraj Topno and Simon Jojo were arrested. He has
stated that on 10.06.2009 at 5:30 A.M. the Police force left for
Goilkera along with the three accused persons. At about 8:00
A.M. when they reached Chitirghati due to a land mine explosion
a Tata Spacio vehicle was severely damaged. Immediately after
the blast firing started from the hills which was retaliated by the
force. The extremists were taking the name of Pankaj Ji, Prasad
Ji, Prabal Ji, Nirmal Ji, Suku Ji, Premchand and were giving
instructions to shoot at the Police personnel and free their
comrades from captivity. The CRPF Inspector Parimal Parwal
received a shot in the head and he succumbed to such fatal
injury. Due to the land mine blast Philip Tete, Prem Kumar
Hembrom, Ram Babu and six NCF Jawans died. The mangled
bodies were collected and brought back to Goilkera P.S. He has
stated that from the three apprehended extremists, some
Pamphlets, Rs. 7,000/- cash, two stolen motorcycles and 15 live
cartridges were recovered.
In cross-examination, he has deposed that on
10.06.2009 they had traveled on foot from Serengda to Sarugara.
He had boarded a Tata Sumo vehicle at Sarugara and there were
six other vehicles. He has stated that two motorcycles were going
in front of his vehicle and had crossed the same place where the
blast was to take place. The distance between his vehicle and the
vehicle which was damaged by the blast was about 50-60 yards.
The firing had continued for one hour. He does not know as to
whether the arrested accused persons had tried to escape or not.
After their arrest all the three accused were in Police custody.
18. P.W.13 (Sudarshan Pd. Mandal) has stated that on
10.06.2009 he had taken over investigation of Goilkera P.S. Case
No. 16/2009. In course of investigation, he had recorded the
statements of Parsuram Paswan, David Kiro, Shivanand Singh,
Binay Kumar Yadav, Poonam Kandai Buru and others. All the
examined witnesses had supported the prosecution case. He had
inspected the place of occurrence which is at Chitir Sarugarha
Ghati situated at a distance of 25 Kilometers from Goilkera P.S.
At the place of occurrence blood was found splattered along with
body parts of the deceased Police personnel, shoes, airbags,
mangled Tata Spacio vehicle and some daily usage articles. The
dead bodies were sent to Sadar Hospital, Chaibasa. He had
submitted charge-sheet against the accused persons and the
investigation was kept pending against the other extremists
In cross-examination, he has deposed that none of the
witnesses had clearly stated in whose vehicle the three arrested
extremists were sitting. He had not recovered any empty
cartridge from the place of occurrence though as per the
witnesses both sides had resorted to several rounds of firing.
None of the witnesses had stated that at the time of the incident
the arrested accused had raised an alarm informing their
presence or attempting to escape.
19. P.W.14 (Binay Kumar Yadav) has stated that on
08.06.2009 he had left Serengda Base Camp under the
leadership of S.I. Yogi Kharia. Along with them were the Officer-
in-Charge Philip Tete, Prem Kumar Hembrom, Parsuram
Paswan, Daud Kiro as well as the Officers and Jawans of CRPF.
They reached Serengda at around 3:00-4:00 P.M. On 09.06.2009
a raid was conducted and three extremists were apprehended.
On 10.06.2009 they were taking back the apprehended
extremists to Goilkera P.S. They travelled by foot to Serengda
village and thereafter they boarded their respective vehicles. He
has stated that as soon as they reached Chitirghati a land mine
explosion took place which was followed by firing from the
hillocks forcing the Police personnel to retaliate. The incident
was planned by the extremists to loot arms and ammunitions
and get the arrested extremists freed. He has stated that the
Police force started climbing the hillock at which the extremists
fled away. When the force came down they saw the vehicle of
Goilkera P.S. severely damaged and several Police personnel as
well as the CRPF Inspector were found dead. A seizure list was
prepared with respect to the articles seized at the place of
occurrence in which he had signed as a witness. He has
identified his signature which has been marked as Exhibit-2/1.
In cross-examination, he has deposed that after the
arrest the accused persons were brought on foot to Serengda.
20. P.W.15 (Dr. Binod Kumar Pandit) was posted as a
Medical Officer in Sadar Hospital, Chaibasa and on 10.06.2009
he had conducted autopsy on the dead body of the Police
personnel. The postmortems were conducted on the orders of the
Civil Surgeon-cum-Chief Medical Officer, West Singhbhum,
Chaibasa by a Medical Board comprising of this witness as well
as Dr. Dhirendra Kumar and Dr. D.K. Mishra.
The postmortem revealed anti-mortem injuries caused
by firearms and blasts leading to shock and Hemorrhage
21. P.W.16 (Shivanand Singh) has stated that on
10.06.2009 he and the other members of the Police force were
returning to Goilkera P.S. along with the three apprehended
extremists and when they reached Chitirghati due to a land mine
blast the vehicle was damaged. There was also an exchange of
firing. The extremists were conversing among themselves to free
the three apprehended accused. He has identified his signature
in one of the seizure list which has been marked as Exhibit-2/2.
22. P.W.17 (Dhirendra Kumar) was posted as a Medical
Officer at Sadar Hospital, Chaibasa and on 10.06.2009 a Medical
Board was constituted on the orders of Civil Surgeon-cum-Chief
Medical Officer, West Singhbhum, Chaibasa and apart from this
witness the other members were Dr. B.K. Pandit and Dr. D.K.
Mishra. On the same day they had conducted autopsy on ten
dead bodies. The postmortem reports have been proved and
marked as Exhibit-3 to 3/9.
23. The statements of the accused were recorded u/s 313
Cr.P.C. in which they have simply denied their involvement in
the incident.
24. Mr. Peter Martin T.J., learned counsel for the
appellant in Cr. Appeal (DB) No. 488 of 2014 has submitted that
the appellant has been convicted primarily u/s 302 of the IPC by
taking the aid of Section 120(B) of the IPC though the
prosecution has failed to prove the angle of conspiracy as
alleged. It has been submitted that there was no occasion for
prior meeting of minds between the appellant and the
extremists.
25. Mr. Deepak Kumar, learned counsel for the appellants
in Cr. Appeal (DB) No. 690 of 2014 has submitted that if at all
the extremists were involved in a criminal conspiracy attempts
would have been made either to escape or to draw the attention
of the extremists in order to enable them to escape but none of
the said features appear to be present as per the evidence of the
witnesses.
26. Mr. Suraj Verma, learned Special P.P. for the State
has submitted that though the appellants were not directly
involved in the mayhem but there is sufficient evidence on
record to establish the angle of conspiracy hatched by the
appellants in tandem with the extremists who had attacked the
Police party. He has submitted that the appellants were arrested
on 09.06.2009 and attempts to get them freed were made on
10.06.2009 and since the extremists as well as the appellants
shared a common intention which was escaping from the
clutches of the Police the angle of conspiracy gets clearly
established.
27. We have heard the learned counsels for the respective
parties and have also perused the Lower Court Records.
28. The facts which are consistent as per the evidence of
the witnesses is that while the Police force was returning to
Goilkera P.S. after arresting all the three appellants were
subjected to an ambush which was preceded by a land mine
blast leading to the Tata Spacio vehicle of Goilkera P.S. getting
severely damaged and several Police personnel dead with their
mangled bodies scattered near the place of occurrence. The
retaliatory firing was resorted to and after one hour of the
encounter the extremists fled away. The dead bodies were
collected and the force thereafter left for Goilkera P.S. The
incident snuffed out the life of ten Police personnel including an
Inspector of the CRPF.
29. The appellants have been convicted for the offences
punishable u/s 307, 353, 398, 427, 302 of the IPC and Section
17(2) of the CLA Act taking the aid of Section 120(B) of the IPC.
We therefore, have to ascertain the involvement or otherwise of
the appellants in conspiring with the extremists in carrying out a
brutal attack upon the Police force.
30. The broad principles governing the law of conspiracy
was considered in the case of "State through Superintendent
of Police CBI/SIT versus Nalini and others" reported in (1999)
5 SCC 253, wherein it has been held as follows:
"583. Some of the broad principles governing the
law of conspiracy may be summarized though, as the
name implies, a summary cannot be exhaustive of the
principles.
1. Under Section 120-A IPC offence of criminal
conspiracy is committed when two or more
persons agree to do or cause to be done an illegal
act or legal act by illegal means. When it is a legal
act by illegal means overt act is necessary.
Offence of criminal conspiracy is an exception to
the general law where intent alone does not
constitute crime. It is intention to commit crime
and joining hands with persons having the same
intention. Not only the intention but there has to
be agreement to carry out the object of the
intention, which is an offence. The question for
consideration in a case is did all the accused have
the intention and did they agree that the crime be
committed. It would not be enough for the offence
of conspiracy when some of the accused merely
entertained a wish, howsoever horrendous it may
be, that offence be committed.
2. Acts subsequent to the achieving of the
object of conspiracy may tend to prove that a
particular accused was party to the conspiracy.
Once the object of conspiracy has been achieved,
any subsequent act, which may be unlawful,
would not make the accused a part of the
conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in
secrecy. It is rarely possible to establish a
conspiracy by direct evidence. Usually, both the
existence of the conspiracy and its objects have to
be inferred from the circumstances and the
conduct of the accused.
4. Conspirators may for example, be enrolled in
a chain - A enrolling B, B enrolling C, and so on;
and all will be members of a single conspiracy if
they so intend and agree, even though each
member knows only the person who enrolled him
and the person whom he enrols. There may be a
kind of umbrella-spoke enrolment, where a single
person at the centre does the enrolling and all the
other members are unknown to each other, though
they know that there are to be other members.
These are theories and in practice it may be
difficult to tell which conspiracy in a particular
case falls into which category. It may however,
even overlap. But then there has to be present
mutual interest. Persons may be members of
single conspiracy even though each is ignorant of
the identity of many others who may have diverse
roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree
to play the same or an active role.
5. When two or more persons agree to commit a
crime of conspiracy, then regardless of making or
considering any plans for its commission, and
despite the fact that no step is taken by any such
person to carry out their common purpose, a crime
is committed by each and every one who joins in
the agreement. There has thus to be two
conspirators and there may be more than that. To
prove the charge of conspiracy it is not necessary
that intended crime was committed or not. If
committed it may further help prosecution to prove
the charge of conspiracy.
6. It is not necessary that all conspirators
should agree to the common purpose at the same
time. They may join with other conspirators at
any time before the consummation of the intended
objective, and all are equally responsible. What
part each conspirator is to play may not be known
to everyone or the fact as to when a conspirator
joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the
accused because it forces them into a joint trial
and the court may consider the entire mass of
evidence against every accused. Prosecution has
to produce evidence not only to show that each of
the accused has knowledge of the object of
conspiracy but also of the agreement. In the
charge of conspiracy the court has to guard itself
against the danger of unfairness to the accused.
Introduction of evidence against some may result
in the conviction of all, which is to be avoided. By
means of evidence in conspiracy, which is
otherwise inadmissible in the trial of any other
substantive offence prosecution tries to implicate
the accused not only in the conspiracy itself but
also in the substantive crime of the alleged
conspirators. There is always difficulty in tracing
the precise contribution of each member of the
conspiracy but then there has to be cogent and
convincing evidence against each one of the
accused charged with the offence of conspiracy.
As observed by Judge Learned Hand "this
distinction is important today when many
prosecutors seek to sweep within the dragnet of
conspiracy all those who have been associated in
any degree whatever with the main offenders".
8. As stated above it is the unlawful agreement
and not its accomplishment, which is the gist or
essence of the crime of conspiracy. Offence of
criminal conspiracy is complete even though there
is no agreement as to the means by which the
purpose is to be accomplished. It is the unlawful
agreement which is the gravamen of the crime of
conspiracy. The unlawful agreement which
amounts to a conspiracy need not be formal or
express, but may be inherent in and inferred from
the circumstances, especially declarations, acts
and conduct of the conspirators. The agreement
need not be entered into by all the parties to it at
the same time, but may be reached by successive
actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is
a partnership in crime, and that there is in each
conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or
more persons enter into a conspiracy, any act
done by any of them pursuant to the agreement
is, in contemplation of law, the act of each of them
and they are jointly responsible therefor. This
means that everything said, written or done by
any of the conspirators in execution or furtherance
of the common purpose is deemed to have been
said, done or written by each of them. And this
joint responsibility extends not only to what is
done by any of the conspirators pursuant to the
original agreement but also to collateral acts
incidental to and growing out of the original
purpose. A conspirator is not responsible,
however, for acts done by a co-conspirator after
termination of the conspiracy. The joinder of a
conspiracy by a new member does not create a
new conspiracy nor does it change the status of
the other conspirators, and the mere fact that
conspirators individually or in groups perform
different tasks to a common end does not split up
a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by
deed. However, criminal responsibility for a
conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who
commits an overt act with knowledge of the
conspiracy is guilty. And one who tacitly consents
to the object of a conspiracy and goes along with
other conspirators, actually standing by while the
others put the conspiracy into effect, is guilty
though he intends to take no active part in the
crime."
31. Conspiracy is a meeting of minds. It is hatched in
secrecy. In the case of "Ram Sharan Chaturvedi versus State of
Madhya Pradesh", reported in 2022 SCC OnLine SC 1080, in
Criminal Appeal No. 1066 of 2010, it has been held as under:
"27. 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, this
Court had held:
"354. ... 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..."
28. 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.
32. When we delve into the ocular evidence it is manifestly
clear that the appellants were in Police custody as they were
arrested on 09.06.2009 while the attack on the Police party was
carried out by the extremists on 10.06.2009. As per the
allegations the primary goal of the extremists were to loot the
arms and ammunitions of the Police party and to free their
captive comrades. Once the appellants were taken into Police
custody there was no possibility of their coming in contact with
their brethren to hatch a plan to escape. Though some of the
witnesses have stated about the extremists passing on
instruction during the encounter to free their comrades but it
appears that the same had not been acted upon. There is no
evidence to suggest that the extremists had taken any
constructive steps to free the appellants as from the testimony of
the witnesses they were hiding in a hillock at quite a distance
from the side of the land mine blast. The appellants on their part
also seems to have remained inactive as neither did they make
any attempts to flee nor did they draw the attention of the
extremists to get them freed. This fact has been stated by P.W.13
who is the Investigating Officer of the case.
33. The entire scenario would depict that the conspiracy
to cause bodily injury to the Police personnel was hatched by the
extremists shorn of the participation of the appellants and it
does not seem to be an act primarily aimed at freeing the
appellants from custody. The conduct of the appellants and the
conduct of the extremists do not even remotely suggest the
involvement of the appellants in the angle of conspiracy. The
learned trial court has given a cryptic finding without
considering the broad spectrum while holding the appellants
guilty, the primary role being assigned to them as that of
conspirators.
34. In view of the discussions made, we come to a
conclusion that there is a clear dearth of evidence against the
appellants of conspiring with the other extremists to cause
bodily injury and damage to the Police party in order to gain
freedom from the captivity of the Police and in such view of the
matter the impugned judgment of conviction dated 30.05.2014
and order of sentence dated 31.05.2014 passed in Sessions Trial
No. 264 of 2009 by Sri Om Prakash Srivastava, learned
Additional Sessions Judge-II, Chaibasa is not sustainable in the
eye of law and the same is accordingly set aside.
35. This appeal is allowed.
36. Since the appellants are in custody they are directed
to be released forthwith, if not, wanted in any other case.
(Rongon Mukhopadhyay, J.)
(Ambuj Nath, J.)
High Court of Jharkhand at Ranchi
Dated, the 5th day of April, 2023.
Alok/NAFR
