Kerala High Court
Pattayan Sreekanth vs State Of Kerala on 15 October, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 15TH DAY OF OCTOBER 2025 / 23RD ASWINA, 1947
CRL.A NO. 2675 OF 2009
AGAINST THE JUDGMENT DATED 26.11.2009 IN CC NO.36 OF 2002 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE
APPELLANT/2ND ACCUSED:
PATTAYAN SREEKANTH,
S/O.A.P.KUNHIRAMAN, SARAVANAPURAM HOUSE,
KARTIKULAM,THRISSILERI AMSOM.
BY SENIOR ADV SRI P.VIJAYABHANU
BY ADV. SRI.M.REVIKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SPECIAL PUBLIC PROSECUTOR ADV.RAJESH.A FOR VACB
SENIOR PUBLIC PROSECUTOR ADV.REKHA.S FOR VACB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2025,
THE COURT ON 15.10.2025 DELIVERED THE FOLLOWING:
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Crl.Appeal No.2675/2009 2
"C.R"
A. BADHARUDEEN, J.
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Crl.Appeal No.2675 of 2009-A
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Dated this the 15th day of October, 2025
JUDGMENT
This appeal is at the instance of the 2nd accused in C.C.No.36 of
2002 on the files of the Enquiry Commissioner and Special Judge,
Kozhikode. The appellant impugns conviction and sentence imposed
against him in the said case dated 26.11.2009. The respondent herein is
the State of Kerala represented by the Vigilance and Anti-Corruption
Bureau (`VACB' for short).
2. Heard the learned Senior Counsel for the
appellant/accused as well as the learned Special Public Prosecutor for
VACB.
3. Perused the verdicts impugned as well as the records of
the Special Court.
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4. The prosecution case is that the 1st accused while
working as Village Officer, Thirunelly from 01.07.1992 to 30.04.1996
being a public servant abused his official position, hatched criminal
conspiracy with the 2nd accused, who is none other than his son, and in
pursuance of the said conspiracy they filed a suo motu case to the
Tahsildar (Land Tribunal), Mananthavady, with a view to assign 32 cents
of land in Survey No.329 in Thirunelly Village in the name of the 2 nd
accused by suppressing the original title of the said land in the name of
third parties. Consequently, Tahsildar, Land Tribunal, Mananthavady, had
issued a purchase certificate in the name of the 2nd accused in respect of the
above 32 cents of land. On this premise, the prosecution would allege that
the 1st accused, after hatching conspiracy with the 2nd accused, committed
criminal misconduct by falsifying records and thereby obtained illegal
gratification for himself and to the 2nd accused. On this premise, the
prosecution alleged that the accused committed offences punishable under
Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988
(`PC Act, 1988' for short hereinafter) as well as under Sections 409, 468,
471 and 120B of the Indian Penal Code (`IPC' for short).
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5. The learned Senior Counsel, who argued to upset the
verdict under challenge vehemently pointed out that the 2nd accused was
convicted and sentenced for the offence punishable under Section 120B of
IPC alone even though the prosecution evidence are quite insufficient to
find any conspiracy in between the 1st and 2nd accused though admittedly
the 2nd accused is the son of the 1st accused. It is also pointed out that a
purchase certificate was issued in favour of the 2 nd accused, in respect of
32 cents of property, as alleged by the prosecution, but later the same was
cancelled and the said order was not at all challenged. Accordingly the
property was reverted back to the landlord as per law. Since the offence
under Section 120B of IPC alleged against the 2nd accused is not proved
beyond reasonable doubt, he would deserve acquittal, enlarging benefit of
doubt.
6. Negating this contention, the learned Public Prosecutor
submitted that when proceedings for cancellation of the purchase
certificate was issued, the appellant/2 nd accused opposed the same by filing
objection and the same would show that the purchase certificate was
issued in the name of the 2nd accused at the outcome of conspiracy hatched
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between the 1st and 2nd accused.
7. Repelling this contention, the learned Senior Counsel for
the appellant submitted that the 1st accused not only recommended suo
motu case against the 2nd accused, but also initiated suo motu proceedings
in favour of his relatives also in respect of the said revenue land.
8. Having appraised the rival arguments, the questions arise
for consideration are:
(i) Whether the Special Court went wrong in finding that the
appellant/2nd accused committed the offence punishable under Section
120B of IPC without support of sufficient evidence?
(ii) Whether it is necessary to interfere with the verdict under
challenge?
(iii) The order to be passed?
Point Nos.(i) to (iii)
9. This case emanated when PW1, a social worker residing
at Kattikulam, Wayanad District, filed a complaint before the Petition
Committee, Kerala Legislative Assembly pertaining to 32 cents of land
comprised in Survey 329 at Thirunelly Village situated at Pothummoola
alleging that the purchase certificate issued in the name of the 2 nd accused
was illegally obtained at the behest of the 1 st accused, the Village Officer,
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Thirunelly, on registering a suo motu case by himself in respect of this
property in the name of his son, the 2nd accused. PW1 deposed about filing
of this complaint and he also deposed that subsequently one Jayakrishnan
filed a complaint before the Land Tribunal and in the said complaint, the
purchase certificate issued in the name of the 2nd accused was cancelled.
10. PW2 examined in this case is Jayakrishnan. According
to him, 2 acre 82 cents of property in Pothummoola were possessed by
PW2 and his father Venkita Ramanan Chetty on the strength of a lease
obtained by Venkita Ramanan Chetty, his father, from Uralan Vadakkan
Muthannan, the landlord. 30 cents out of the total extent was given to one
Jogy as per certificate of purchase. The remaining property coming to 23
acre 52 cents were in the possession of PW2 and his father and they paid
tax in respect of the said property, including 32 cents assigned in favour of
the 2nd accused. His evidence further is that during 1995-96, when he had
gone for payment of tax to the Village Office, the Village Officer Sri
Kunhimuhammed told him that certificate of purchase in respect of this 32
cents of property was issued in the name of the 2nd accused, who is the son
of the 1st accused, the Village Officer, Thirunelly, on the basis of a suo
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motu case initiated by the 1st accused in respect of the said property.
According to him, he had made a complaint in this regard to the Tahsildar
(Land Tribunal), Collector, Wayanad and Assistant Collector.
Subsequently the said purchase certificate was cancelled. Thereafter he
had paid basic tax to the property as on 08.06.1993. Ext.P1 is the said tax
receipt. Subsequently he had paid tax on 05.07.1997 and receipt for the
same is Ext.P2. Ext.P3 is the copy of the order of the Land Tribunal
tendered in evidence through PW2. Ext.P8 is the original possession
certificate issued in the name of PW2 by the 1st accused.
11. PW3 examined in this case is the Village Officer,
Thirunelli village from June, 1996 to November, 1999. He deposed that
there was a proceeding for the cancellation of Certificate of Purchase
issued in the name of the 2nd accused in respect of 32 cents of land in
R.S.329 in Thirunelly Village. According to PW3, the said property was
situated at Pothummoola and the same originally belonged to Thirunelly
Devaswom. Since the Land Tribunal Tahasildar wrongly issued purchase
certificate in the name of the 2nd accused, the same was cancelled. The
cancellation proceedings were initiated, based on a complaint filed by
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Jayakrishnan (PW-2). The file regarding the proceedings of cancellation of
the Certificate of Purchase was forwarded to the Village Office,
Thirunelly. He identified the said file as L.A.4/95/TNLY. In that file, one
U.K. Muhammed, Tholppetty had filed an application for obtaining
Certificate of Purchase in respect of 2 cents of property in R.S. 117/4B. A-
1 had forwarded this application to Tahsildar and recommended for the
issuance of Certificate of Purchase in the name of U.K. Muhammed.
Subsequently report from the Revenue Inspector was called for. The then
Village Officer was himself, who filed a report to the Tahsildar (Land
Tribunal) stating that there was no necessity for the issuance of Certificate
of Purchase. Further, another L.A.14/95/TNLY file was also produced to
the Vigilance Police, which was marked as Ext.P-6. That file was in the
name of one Raju, brother-in-law of the 1 st accused. As per Ext.P6, there
were 50 cents of property in R.S. 280 and 17 cents of property in R.S. 73.
The 1st accused Kunhiraman had recommended for issuance of Certificate
of Purchase in respect of 69 cents of property in the name of P.Raju, who
was none other than his brother-in-law. On 3-7-1996, the Revenue
Inspector had returned the file for a further report to him and he had
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reported as, 'that cannot be granted'. Likewise, another file
No.A5/19752/97 in the name of A. Rajendran in respect of application for
Certificate of Purchase for 12 cents of property in Rs.353/1A was
produced and marked as Ext.P-7. In this case also, the 1 st accused
recommended the issuance of Certificate of Purchase. He had made a
report against that recommendation made by the 1st accused. Based on that
report, that Order was cancelled. Thus the evidence of PW3 would show
that the 1st accused had made recommendation for issuance of Certificate
of Purchase to so many people including his relatives, brother-in-law and
friends in respect of revenue lands.
12. PW4 was examined by the prosecution to prove that the
32 cents of property on which patta was issued in the name of the 2 nd
accused was originally purchased from Venkita Ramana Chetty and as per
the consent given by Venkita Ramana Chetty he had possessed the said
property and constructed a shed therein and resided there for about 3½
decades. Once the 1st accused had come to that property and had taken
measurement of the said property. Further he deposed that the 1 st accused
had enquired as to whether PW4 was willing to sell the property.
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According to PW4, he had informed the 1st accused that the property
belonged to Venkita Ramana Chetty. He deposed further that after the
death of Venkita Ramana Chetty, PW2, Jayakrishnan, had possessed the
property.
13. The case advanced by the accused herein is that he had
obtained the property from one Sivaraman Nair, who had obtained
possessory right from P.D.Sasidharan, who was a cultivating tenant. The
further case of the accused is that the said property was originally
belonged to Thirunelly Devaswom and Cheriya Thimmappan Chetty had
taken the same on lease from the Uralan. Thereafter, P.D.Sasidharan had
possessed the property. P.D.Sasidharan, who was examined as PW4,
deposed that the property was originally belonged to Venkita Ramana
Chetty and after his death the same was possessed by Jayakrishnan. As
regards to obtaining of property by one Sivaraman Nair, as contended by
the accused, the prosecution examined son of Sivaraman nair as PW5 and
he had deposed that his father had no property extending to 32 cents, as
contended by the accused and no documents were given to anybody by his
father in relation to the said property. He also denied the purchase of the
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said property by his father from one Sasidharan, as contended by the
accused. PW6, the Village Officer of Mananthavady in charge of Village
Office, Thirunelly from 01.07.2000 onwards, deposed that Ext.P2 tax
receipt dated 05.09.1997 was issued by him to one Jayakrishnan after
collecting the tax. He also deposed about a dispute in between
Jayakrishnan (PW2) and the 2nd accused and cancellation of the purchase
certificate in the name of the 2nd accused.
14. PW8 examined in this case is the Deputy Superintendent
of Police, Vigilance, Wayanad and as directed by him this crime was
registered and Ext.P11 is the FIR marked through him. PW9, the then
Inspector, Vigilance and Anti-Corruption Bureau, Wayanad had conducted
investigation from 29.02.2000 to 01.09.2000; recorded statement of
witnesses and seized Exts.P1, P2, P3 and P9 documents. PW10 and PW11
are the subsequent investigating officers, who had investigated this crime
and they deposed about the investigation. It was through PW10 Ext.P5,
the file regarding the Certificate of Purchase, Ext.P12 mahazar and Ext.P7
documents as per Ext.P13 mahazar were let in evidence.
15. PW7 deposed that he was the Head Ministerial Officer,
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Land Tribunal, Mananthavady from 25-11-1999 till 2000 December. He
had produced 2 documents to the Vigilance Police in respect of this case.
Police had seized those documents as per a Mahazar. The file regarding
SMC 3/96 was marked as Ext.P-9. There is an Order in I.A.4/97 in SMC
3/96. Certified copy of the Order in I.A.4/97 was marked as Ext.P-3. The
Mahazar is marked as Ext.P-10. In Ext.P-9 file, the then Village Officer,
A.P. Kunhiraman had filed a report for initiating SMC proceedings. That
was on 15-12-1995. As per that report, the property was in possession of
tenant. In that, the Survey Number was 172/6, the extent was 32 cents
(13.00 hectre), name of the tenant was shown as Sreekanth Pattayan (A-2),
the name of the landlord was shown as Panamkolly Devi, Avva and others.
It is also stated that Sreekanth (A2) had obtained this property as per an
agreement dated 5-2-1993 from one Sivaraman Nair. The boundaries
shown in the SMC report and the agreement are different. On 10-3-1996,
Certificate of Purchase was issued in the name of Sreekanth by the Village
Officer Kunhiraman (A-1). Ext.P-3, is the Order of Cancellation of that
Certificate of Purchase.
16. The crucial point to be decided in this case is, whether
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the conspiracy alleged to be committed by the 2 nd accused, who is none
other than the son of the 1st accused, has been proved substantially beyond
reasonable doubts with the necessary ingredients?
17. Criminal conspiracy in terms of section 120B of the IPC
is an independent offence. The ingredients of the offence of criminal
conspiracy, as laid down by the Apex Court are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal
means.
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
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agreement need not be proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not sufficient. A conspiracy is a
continuing offence which continues to subsist till it is executed or
rescinded or frustrated by choice of necessity. During its subsistence
whenever any one of the conspirators does an act or series of acts, he
would be held guilty under section 120B of the IPC.
18. Thus the gist of the offence under section 120A is that
the agreement between two or more persons to do or cause to be done an
illegal act or a legal act by illegal means subject to the proviso that the
agreement does not except agreement to commit offence, amount to a
conspiracy unless it is followed by an overt act done by one or more
persons in pursuance of such an agreement. An agreement to do an illegal
act which amounts to a conspiracy, will continue as long as the members
of the conspiracy remain in agreement and as long as they are acting in
accord and in furtherance of the object for which they entered into the
agreement.
19. It is not necessary that conspirators should know each
and every detail of the plot so long as they are conspirators in the main
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object. Participation of all the conspirators from the very inception of
conspiracy is also not necessary. Unity of purpose and the participation of
the conspirators at different stages are the determinative factors.
20. In this context, it is relevant to notice the Objects and
Reasons of the said amendment to understand that the underlying purpose
of introducing section 120A was to make a mere agreement to do an illegal
act or an act which is not illegal by illegal means, punishable, the same are
as follows:
21. The sections of the IPC which deal directly with the
subject of conspiracy are those contained in Chapter V and section 121A
of the IPC. Under the latter provision, it is an offence to conspire to
commit any of the offences punishable by section 121 of the IPC or to
conspire to deprive the King of sovereignty of British India or any part
thereof or to overawe by means of criminal force or show of criminal force
the Government of India or any Local Government and to constitute a
conspiracy under this section. It is not necessary that any act or illegal
omission should take place in pursuance thereof. Under section 107,
abetment includes engaging with one or more person or persons in any
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conspiracy for the doing of a thing, if an act or illegal omission takes place
in pursuance of that conspiracy, and in order to the doing of that thing. In
other words, except in respect of the offences particularised in section
121A conspiracy per se is not an offence under the IPC.
22. On the other hand, by the common law of England, if
two or more persons agree together to do anything contrary to law, or to
use unlawful means in the carrying out of an object not otherwise
unlawful, the persons, who so agree, commit the offence of conspiracy. In
other words, conspiracy in England may be defined as an agreement of
two or more persons to do an unlawful act or to do a lawful act by
unlawful means, and the parties to such a conspiracy are liable to
indictment.
23. Experience has shown that dangerous conspiracies have
entered into India which have for their object aims other than the
commission of the offences specified in section 121A of the IPC and that
the existing law is inadequate to deal with modern conditions. The present
Bill is designed to assimilate the provisions of the IPC to those of the
English law with the additional safeguard that in the case of a conspiracy
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other than a conspiracy to commit an offence some overt act is necessary
to bring the conspiracy within the purview of the criminal law. The Bill
makes criminal conspiracy a substantive offence, and when such a
conspiracy is to commit an offence punishable with death, or rigorous
imprisonment for a term of two years or upwards, and no express
provision is made in the Code, provides a punishment of the same nature
as that which might be awarded for the abetment of such an offence. In all
other cases of criminal conspiracy, the punishment contemplated is
imprisonment of either description for a term not exceeding six months or
with fine, or with both.
24. Prior to the amendment of the Code and the introduction
of sections 120A and B, the doctrine of agency was applicable to ascertain
the liability of the conspirators, however, conspiracy in itself was not an
offence (except for certain offences). The amendment had made
conspiracy a substantive offence and rendered the mere agreement to
commit an offence is punishable. Prior to the amendment, unless an overt
act took place in furtherance of the conspiracy it was not indictable (it
would become indictable by virtue of being abetment).
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25. In [(1999) 5 SCC 253: AIR 1999 SC 2640:1999 (3) SCR
1], State through Superintendent of Police, CBI/SIT v. Nalini and
Others, the Apex Court explained that conspiracy results in a joint
responsibility and everything said written or done in furtherance of the
common purpose is deemed to have been done by each of them. The Court
held:
1. Under section 120A of the Indian Penal Code, 1860 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.
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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 must 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 case falls into which
category. It may however, even overlap. But then there must 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.
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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 must 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 must 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 must 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 of 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
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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 therefore. This
means that everything said, written of done by any of the conspirators in
execution or furtherance of the common purpose is deemed to have been
said, done of 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
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object of a conspiracy and goes along with other conspirators, standing by
while the others put the conspiracy into effect, is guilty though he intends to
take no active part in the crime.
26. The law on the issue emerges to the effect that
conspiracy is an agreement between two or more persons to do an illegal
act or an act which is not illegal by illegal means. The object behind the
conspiracy is to achieve the aim of conspiracy. In order to achieve the
ultimate object, parties may adopt many means. Such means may
constitute different offences by themselves, but so long as they are adopted
to achieve the ultimate object of the conspiracy, those are also acts of
conspiracy. For an offence of conspiracy, it is not necessary for the
prosecution to prove that conspirators expressly agreed to do an illegal act,
the agreement may be proved by necessary implication. It is also not
necessary that each member of the conspiracy should know all the details
of the conspiracy. Conspiracy is a continuing offence. Thus, if any act or
omission which constitutes an offence is done in India or outside its
territory, the conspirators continue to be the parties to the conspiracy. The
conspiracy may be a general one and a smaller one which may develop in
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successive stages. It is an unlawful agreement and not its accomplishment,
which is the gist/essence of the crime of conspiracy. In order to determine
whether the conspiracy was hatched, the court is required to view the
entire agreement and to find out as in fact what the conspirators intended
to do.
27. Offence of criminal conspiracy is an exception to the
general law where intent alone does not constitute a crime. It is intention to
commit crime and joining hands with persons having the same intention.
Law making conspiracy a crime is designed to curb immoderate power to
do mischief which is gained by a combination of the means. The
encouragement and support which co-conspirators give to one another
rendering enterprise possible which, if left to individual effort, would have
been impossible, furnish the ground for visiting conspirators and abettors
with condign punishment. The conspiracy is held to be continued and
renewed as to all its members wherever and whenever any member of the
conspiracy acts in furtherance of the common design. Offence of criminal
conspiracy has its foundation in an agreement to commit an offence. A
conspiracy consists not merely in the intention of two or more, but in the
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agreement of two or more to do an unlawful act by unlawful means. A
criminal conspiracy must be put to action because so long a crime is
generated in the mind of an accused, it does not become punishable. What
is necessary is not the thoughts, which may even be criminal in character,
and often involuntary, but an offence would be said to have been
committed thereunder only when that take concrete shape of an agreement
to do or cause to be done an illegal act or an act which although not illegal
by illegal means and then if nothing further is done, such an agreement
would give rise to a criminal conspiracy.
28. The essence of the offence of conspiracy is the fact of
combination by agreement. The agreement may be express or implied, or
in part express and in part implied. The conspiracy arises and the offence
is committed as soon as the agreement is made; and the offence continues
to be committed so long as the combination persists. That is until the
conspiratorial agreement is terminated by completion of its performance or
by abandonment or frustration or however it may be. In a criminal
conspiracy meeting of minds of two or more persons for doing an illegal
act is sine qua non but proving this by direct proof is not possible. Hence
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conspiracy and its objective can be inferred from the surrounding
circumstances and conduct of the accused.
29. The law on conspiracy has been described as "the least
systematic", the most irrational branch of English Penal Law. An
agreement to commit the tort of trespass to land, if accompanied by an
intention to inflict more than merely nominal damage, was held to be a
criminal conspiracy. Certain persons agreed to rob the bank if it was safe
to do so; their agreement will necessarily involve the commission of the
offence of robbery if it is carried out in accordance with their intentions.
30. The Special Court has given reliance on Ext.P5 file
regarding L.A.4/95/TNLY and found that the disputed purchase certificate
generated in the name of the 2nd accused, as alleged by the prosecution,
had been received by the 2nd accused. Apart from that, the Special Court
found that the 1st accused had initiated SM proceedings in respect of the 2
cents of property comprised in Re survey No.117/4B in the name of one
V.K.Muhammed 50 cents of property in Re-survey No.280 was
recommended for issue of purchase certificate in the name of V.Raju, the
brother in law of the 1st accused, in respect of a property, which was
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originally belonged to Thirunelly Devaswom and possessed by PW2 and
his father. It is argued by the learned Public Prosecutor that when
cancellation of purchase certificate issued in the name of the 2 nd accused
was considered, he had filed objection and had resisted the proceedings to
substantiate that, the same also would show his role as part of his
conspiracy in the matter of issuance of patta in his favour.
31. In this case, it is true that a property originally belonged
to Thirunelly Devaswom in possession of Cheriya Thimmappan Chetty,
subsequently possessed by P.D.Sasidharan (PW2), was the property for
which certificate of purchase was issued in the name of the 2 nd accused in
the suo motu proceedings initiated by the 1st accused, who is the father of
the 2nd accused, knowing fully well that the property was not that of
Sivaraman Nair, on the basis of a false agreement executed by Sivaraman
Nair. However, the question to be considered is whether the 2 nd accused
also involved in this crime by hatching conspiracy with the 1st accused.
32. According to the learned counsel for the appellant/2 nd
accused, the 2nd accused was a young boy at the time when the 1 st accused,
his father, had initiated suo motu proceedings, acting on an agreement
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executed by Sivaraman Nair to get the purchase certificate in the name of
the appellant/2nd accused. In fact, the appellant/2 nd accused had no
knowledge or no intention to obtain the purchase certificate in his name for
which he had no right, and he, in fact, was named by his father, though
consequential thereto the purchase certificate was issued in the name of the
appellant/2nd accused. Thus the conspiracy element at the helm of the
appellant/2nd accused could not be found beyond any reasonable doubt, and
by giving the benefit of doubt, the appellant/2 nd accused is liable to be
acquitted.
33. Here, no doubt, the 1st accused, who is the father of the
appellant/2nd accused recommended suo motu proceedings to obtain the
purchase certificate in respect of 32 cents of land in the name of the
appellant/2nd accused. He also recommended suo motu proceedings in
favour of his brother in law and relatives, as already discussed. It is true
that at the time when the suo motu proceedings to issue purchase
certificate in the name of the appellant/2 nd accused had been
recommended, he was a young lad and he might have been obedient to the
whims and fancies of his father. Therefore, whether he had any role in
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getting the purchase certificate in his favour, though subsequently it had
been cancelled, hatching conspiracy, would require cogent evidence.
Otherwise, for the wrong committed by his father, the appellant/2 nd
accused could not be fastened with criminal culpability with the aid of
Section 120B of IPC. Even though the appellant/2 nd accused had obtained
the purchase certificate and later he had objected cancellation of the same
strongly believing that the recommendation made by his father for getting
the purchase certificate was based on legal documents, the same would not
be sufficient to hold that there was meeting up of the minds between the
appellant/2nd accused and his father to commit the crime and some doubts
subsist in this regard. The said doubts are to be adjudged in favour of the
appellant/2nd accused. In view of the matter, I am inclined to acquit the
accused, enlarging the benefit of doubt, holding that the conspiracy alleged
against him was not proved beyond reasonable doubt.
34. In the result, this appeal succeeds. The conviction and
sentence imposed against the appellant/2 nd accused impugned herein stand
set aside. Accordingly the Appeal is allowed. The appellant is acquitted
for the offences under Section 120B of the IPC and he is set at liberty
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forthwith. His bail bond stands cancelled.
Registry is directed to forward a copy of this judgment to the
Enquiry Commissioner and Special Judge, Kozhikode, for information and
compliance.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
