Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1305 OF 2008
Bilal Hajar @ Abdul Hameed ….Appellant(s)
VERSUS
State Rep. by the
Inspector of Police …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 08.11.2006 passed by
the High Court of Madras in Criminal Appeal
No.1200 of 2003 whereby the High Court dismissed
the appeal filed by appellant herein.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.10.10
16:45:45 IST
Reason:
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2. In order to appreciate the issues involved in
this appeal, it is necessary to set out the facts of the
case in detail hereinbelow.
3. The case of the prosecution may be briefly
stated as follows.
4. In all nine persons were tried for commission
of various offences in Session Trial No.239 of 2000
by the Additional Court of Sessions (Fast Track
No.111) Coimbatore.
5. The details of the offences under the Indian
Penal Code (for short “IPC”) for which the accused
were tried are set out herein below:
(1) A 1 to A 9 Section 120B, IPC
(2) A1 to A 5 Section 148, IPC
(3) A 1 to A 5 Section 302, IPC
(4) A1 Section 332, IPC
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6. On 19th August 1991, some posters were
found pasted on the walls of public streets in the
city of Coimbatore. These posters contained threats
that seven persons belonging to a particular
community would be killed. One person, out of the
seven named person, was “Siva Kumar @ Siva”.
7. Siva on coming to know of his name being
published in the poster scolded in filthy language
the members of a particular community in a public
meeting held on 30.08.1991, as according to him,
the members of that community had pasted such
posters wherein he and six others named therein
were given threat of murder.
8. On 01.09.1991 between 2.30 p.m. to 3.30
p.m., all the nine accused (A1 to A9) assembled in
the house of the appellant (A6) and they hatched a
criminal conspiracy to murder Siva. In furtherance
of the criminal conspiracy, on 05.09.1991, around
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7.45 a.m. accused (A1 to A5) along with one
absconded accused armed with deadly weapons
assembled at Kovai Mill Road, Coimbatore and
accused (A1 and A3) attacked Siva with knife, who
was passing through the road. Accused (A1) also
stabbed one Constable Chinnathambi (PW1) with
knife, who had come to the spot. Injured Siva was
taken to the nearest hospital where he succumbed
to injuries and was declared dead.
9. This incident led to arrests of nine accused.
Investigation was carried out and after completing
it, the chargesheet was filed against the nine
accused and they were put to trial for commission of
various offences as detailed above. By order dated
29.07.2003, the Sessions Judge convicted the
accused persons as under:
“The punishment of life imprisonment to
accused Nos.1 to 9 under Section 120(b)(1)
and a fine of Rs.10,00/ is imposed, failing
which 1 year RI have to undergo. For
accused Nos. 1 to 4, life imprisonment under
Section 302 of IPC and a fine of Rs.25,000/
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as fine, failing which 1 year RI under
Sections 148 of IPC to accused Nos.1 to 4
should undergo the RI in the same period.
Under Section 428 of Criminal Procedure
Code, the period of jail while in the trail
period may be deducted. Rs.1,00,000/ is to
be given to the ward of the Siva as
compensation from the total fine of
Rs.1,90,000/ under Section 357 of Cr.P.C.”
10. The convicted accused felt aggrieved and filed
their respective criminal appeals, some jointly and
some separately in the High Court of Madras
questioning therein the legality and correctness of
their respective convictions and sentences awarded
to them.
11. By a common impugned order, the High Court
dismissed the appeals of the accused, except that of
accused (A9) who was acquitted. The conviction of
accused (A2) under Section 120B was set aside.
12. The accused (A6) alone felt aggrieved by his
conviction and award of sentences and he has filed
the present appeal by way of special leave to appeal
in this Court. So far as other accused are
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concerned, they did not file any appeal in this Court
against their respective conviction/sentences. Their
conviction and sentences have, therefore, become
final. They are undergoing their jail sentences as
awarded to each of them.
13. So the only question involved in this appeal is
whether the Courts below were justified in holding
the appellant (A6) guilty for commission of only the
offence under Section 120B IPC.
14. It is pertinent to mention here that so far as
the appellant (A6) is concerned, he was prosecuted
and eventually convicted for an offence punishable
under Section 120B, IPC and was accordingly
awarded life sentence. In other words, the appellant
(A6) was charged with the offence punishable
under Section 120B, IPC and was convicted as
such.
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15. Heard Mr. K.K. Mani, learned counsel for the
appellant and Mr. M. Yogesh Kanna, learned
counsel for the respondentState.
16. Learned counsel Mr. K.K. Mani appearing for
the appellant while assailing the legality and
correctness of the impugned order contended that
the appellant's conviction is based only on the
testimony of two witnesses, namely PW3 and PW4.
17. According to learned counsel, these two
witnesses are the chance witnesses set up by the
prosecution and therefore the two Courts below
erred in placing reliance on their testimony. In his
submission, both these witnesses should have been
disbelieved.
18. Learned counsel then elaborated his
submission by reading their testimony and pointed
out inconsistencies and contradictions in their
statements on certain issues, which according to
him, render their statement wholly unreliable.
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19. It is basically these submissions the learned
counsel urged by appreciating their evidence and
contended that so far as appellant (A6) is
concerned, once it is established that he was not a
part of the criminal conspiracy to kill Siva on
05.09.1991, which according to the prosecution was
hatched on 01.09.1991 in his house, the appellant
was entitled for a clean acquittal.
20. It was urged that it is an admitted case set up
by the prosecution which found proved also that the
appellant was neither present and nor involved in
actual commission of crime on 05.09.1991 in killing
Siva but it was accused (A1 to A5) who were
involved in murder of Siva on 05.09.1991. It is for
this reason, the appellant cannot be held
responsible for commission of murder of Siva, he
being not a member of any criminal conspiracy to
kill him.
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21. In reply, learned counsel for the respondent
(State), supported the impugned order, which,
according to him, rightly upheld the order of the
Session court and supported the reasoning and the
conclusion contained therein and contended that no
case is made out to reverse the concurrent finding
of the two courts below. It was urged that
reasoning and the conclusion is based on proper
appreciation of evidence and does not call for any
interference in this appeal.
22. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no force in the submissions of the learned
counsel for the appellant (A6).
23. At the out set, we consider it apposite to state
that when the two Courts below in their respective
jurisdiction has appreciated the entire ocular
evidence, then this Court would be very slow in
exercise of its appellate jurisdiction under Article
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136 of the Constitution to appreciate the evidence
afresh unless the appellant is able to point out that
the concurrent finding of two courts below is wholly
perverse or is recorded without any evidence or is
recorded by misreading or ignoring the material
evidence.
24. We consider it apposite to recall the apt words
of Justice Fazal Alia learned Judge while speaking
for the Bench in the case of vs.
Lachman Singh
State (AIR 1952 SC 167 at page 169) when his
Lordship observed “ It is sufficient to say that it is not
the function of this Court to reassess the evidence
and an argument on a point of fact which did not
prevail with the Courts below cannot avail the
appellants in this Court .”
25. Despite this, we felt that since the leave has
been granted to the appellant to file this appeal, it is
just and proper to peruse the evidence and
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particularly that of PW3 and PW4 with a view to
find out as to whether the courts below were right in
placing reliance on their testimony to sustain the
appellant's conviction under Section 120B, IPC.
26. Before we examine the evidence of PW3 and
PW4, it is apposite to take note of the essential
ingredients of Section 120 A and Section 120B,
IPC under which the appellant (A6) was prosecuted
and eventually convicted.
27. The expression “criminal conspiracy” is defined
in Section 120A, IPC. It says that when two or more
persons agree or cause to be done an illegal act or
an act, which is not illegal by illegal means, such an
agreement is designated a “criminal conspiracy”. It
then provides an exception to the effect 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
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thereof. The explanation appended to the Section
clarifies that it is immaterial whether the illegal act
is the ultimate object of such agreement or is merely
incidental to that object.
28. Section 120B, IPC provides a punishment for
committing an offence of criminal conspiracy. It
says that whoever is a party to a criminal
conspiracy to commit an offence punishable with
death, imprisonment for life, or rigorous
imprisonment for a term of two years or upwards
shall be punished in the same manner as if he had
abetted such offence provided there is no express
provision made in the Code for punishment of such
conspiracy.
29. Subsection (2) of Section 120B, IPC, however,
provides that a person who is a party to a criminal
conspiracy other than a criminal conspiracy to
commit an offence punishable as aforesaid shall be
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punished with an imprisonment of either for a term
not exceeding six months or with fine or both.
30. Reading of Section 120A and Section 120B,
IPC makes it clear that an offence of “criminal
conspiracy” is a separate and distinct offence.
Therefore, in order to constitute a criminal
conspiracy and to attract its rigor, two factors must
be present in the case on facts: first, involvement of
more than one person and second, an agreement
between/among such persons to do or causing to be
done an illegal act or an act which is not illegal but
is done or causing to be done by illegal means.
31. The expression “criminal conspiracy” was aptly
explained by this Court in a case reported in Major
E.G. Barsay vs. State of Bombay (1962) 2 SCR
195. Learned Judge Subba Rao (as His Lordship
then was and later became CJI) speaking for the
Bench in his distinctive style of writing said:
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“31…….. The gist of the offence is an
agreement to break the law. The parties to
such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to
be done has not been done. So too, it is not
an ingredient of the offence that all the
parties should agree to do a single illegal act.
It may comprise the commission of a number
of acts.”
32. Therefore, in order to constitute a conspiracy,
meeting of mind of two or more persons to do an
illegal act or an act by illegal means is a must. In
other words, it is sine qua non for invoking the plea
of conspiracy against the accused. However, it is
not necessary that all the conspirators must know
each and every detail of the conspiracy, which is
being hatched and nor it is necessary to prove their
active part/role in such meeting.
33. In other words, their presence and
participation in such meeting alone is sufficient. It
is well known that a criminal conspiracy is always
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hatched in secrecy and is never an open affair to
anyone much less to public at large.
34. It is for this reason, its existence coupled with
the object for which it was hatched has to be
gathered on the basis of circumstantial evidence,
such as conduct of the conspirators, the chain of
circumstances leading to holding of such meeting
till the commission of offence by applying the
principle applicable for appreciating the
circumstantial evidence for holding the accused
guilty for commission of an offence. (See also
Baldev Singh vs. State of Punjab [2009 (6) SCC
564].
35. Keeping in view the aforesaid principle of law
which is consistently followed and reiterated by this
Court in several cases, the issue involved in this
case is required to be examined with a view to find
out as to whether appellant (A6) was a member of a
criminal conspiracy which was hatched on
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01.09.1991 to kill Siva on 05.09.1991 or in other
words whether there is any evidence to sustain
appellant's conviction under Section 120B, IPC
and, if so, whether the evidence adduced by the
prosecution is in conformity with the parameters
laid down by this Court to prove the guilt of the
appellant beyond reasonable doubt.
36. It has come in evidence that starting point of
the incident leading to the death of Siva gained
momentum due to pasting of posters on public walls
in the city by the members of one community
mentioning therein the name of “Siva” with six
others that these seven named persons would be
killed. This prima facie indicated that Siva and six
others could be a soft target for their elimination by
the members of a particular community in coming
days. Another factor, which added to the
occurrence in question was filthy
language/utterances of Siva in one public meeting
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held by some workers of one party soon thereafter
on 30.08.1991.
37. Perusal of evidence of PW3 and PW4 would
go to show that PW4 was running his small tea
stall under a tree near appellant's house. It was
around 70 feet away from the house and one could
see the appellant's house from the tea stall. PW3
was working as a tea boy in PW4's tea stall on daily
wages during the relevant time.
38. PW3 said in his deposition that on
01.09.1991 around 2.30 p.m., he saw appellant (A
6), Basha (A8) and Sbeyar (A9) getting down from
the car (van) and entering in appellant's house.
After some time, (A8Basha) came to the tea stall
and asked him (PW3) to bring 10 cups of tea to the
appellant's house. PW3 on his part then told PW4
to prepare and give him 10 cups of tea, which PW3
brought to the appellant's house and served
everyone sitting in the room. He then waited for
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some time to collect the empty teacups when he
heard appellant (A6) saying to others present there
that: “ whatever might be the cost, we should kill Siva
within 10 days ”. He said that on appellant saying
this, another personBasha (A8) who had come to
the tea stall for ordering tea said “ in no case we
should go back after taking the initial step and
finishing Siva ”. On this A7 (Subahier) said
touching A1 (Jahir Husain) sitting next to him that
he i.e. (A1) would be the fittest one to do the job.
At this time, (A8 Basha) saw PW3 who was
standing there and asked him as to why he (PW3)
is standing here and asked him to go out of the
room. When PW3 was leaving the place, he heard
the appellant asking others as to whether they
would murder Siva. All in reply to appellant's query
said in a loud voice, as if, they were taking some
kind of oath that they would kill Siva. PW3 then
said that on return to tea stall, he told to his boss
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(PW4) what he saw and heard in appellant's house
to which (PW4) said to him that he should ignore.
PW4 then asked him to go back after some time to
collect the empty cups and bring sale money for 10
cups of tea. PW3 then went to the appellant’s
house after ten to fifteen minutes when the persons
assembled there paid him Rs.8 and said to retain
the balance by way of tip for him. He then said that
after about 4/5 days or so, he heard that Siva is
murdered by stab injuries so he went to see him in
Government hospital.
39. More or less on the same lines of (PW3), PW4
has also deposed about the incident in his
deposition. In other words, PW4 has corroborated
the testimony of PW3 on all material events and
hence we do not wish to repeat his deposition in
detail.
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40. Having scanned the testimony of PW3 and
PW4, we find no good ground to discard their
testimony. In our opinion, their testimony is found
natural, consistent and does not suffer from any
contradictions much less major contradictions so as
to brush aside as being wholly unreliable. The two
courts below, in our view, therefore rightly relied on
their testimony to sustain appellant’s conviction
under Section 120B, IPC.
41. In our considered opinion, the test laid down
by this Court as to how a case under Section 120A,
IPC read with Section 120B, IPC is required to be
made out by the prosecution with the aid of
evidence is found proved by the prosecution beyond
reasonable doubt in this case and this we say for
following reasons.
42. First, there was adequate foundation laid for
holding a meeting on 01.09.1991 by the accused
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and the said foundation was an incident of pasting
of posters on 19.08.1991 in public places all over
the city and second, a public meeting held on
30.08.1991 in which Siva (deceased) uttered filthy
language against the members of the community to
which the accused belonged. These two facts did
constitute a foundation for the commission of
offence in question and they were duly proved with
adequate evidence by the prosecution.
43. Second, the evidence of PW3 and PW4 has
proved the factum of holding a meeting in
appellant’s house on 01.09.1991 with other accused
wherein a decision was taken to kill/eliminate Siva
within 10 days.
44. Third, the presence of PW3 in appellant's
house while serving a tea to all the accused is
proved by the evidence of PW3 and PW4. Similarly
the evidence of PW3 and PW4 further proved the
exchange of talk between the accused confirming
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that they will kill/eliminate Siva, the fact that Siva
was killed/eliminated after five days after the
meeting was held and lastly, his death was proved
as homicidal
45. In our considered opinion, the complicity of
the appellant in conceiving a plan to kill/eliminate
Siva was therefore duly proved with the evidence
adduced by the prosecution. Indeed, it was the
appellant who took the lead to kill/eliminate Siva
and with that end in view first he held a meeting in
his house with all the other accused on 01.09.1991
and pursuant thereto got it accomplished through
accused (A1 to A5) on 05.09.1991 when accused
(A1 & A3) caused fatal stab injury with knife to
Siva resulting in his homicidal death.
46. In our opinion, it was not necessary for the
appellant to remain present at the time of actual
commission of the offence on 05.09.1991 with
accused (A1 to A5) for killing/eliminating Siva.
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The appellant could be held guilty for commission of
the same offence and sentence, which was awarded
to accused (A1 to A5) as if, he had abetted the
commission of the offence of murder as provided
under Section 120B, IPC.
47. We are not impressed by the submission of the
learned counsel for the appellant (A6) when he
tried to point out three statements from the
evidence of PW3 and PW4 which according to him
were contradictory to each other rendering their
testimony unreliable.
48. The first one was that PW3 said that “he
alone” went to the hospital to see the dead body of
Siva whereas PW4 said that “We” went to the
hospital to see the dead body of Siva.
49. In our opinion, there is no contradiction in
their version on the issue of visit to the hospital.
Whether both went together or went individually
with some time gap between their visits is hardly of
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any significance so as to discard their entire
testimony.
50. The second instance which was pointed out by
the learned counsel for the appellant was that why
should PW3 go to see the dead body of Siva in the
hospital when he was in no way connected with him
and nor was he connected with the accused. This
fact according to learned counsel appears unnatural
and thus renders PW3 testimony unreliable.
51. In our view, the second instance also has no
substance. It is for the reason that the appellant (A
6) had an opportunity to crossexamine PW3 and
PW4 on all the socalled contradictions to the two
witnesses but he failed to avail of this opportunity
by not crossexamining PW3 and PW4. On the
other hand, the appellant adopted the cross
examination done by other accused on PW3 and
PW4 and gave up his right of crossexamination to
these two witnesses. In this view of the matter; he
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cannot now be permitted to find fault in the
evidence of PW3 and PW4 and rely upon some
contradictions which otherwise do not show any
contradiction much less major one affecting their
testimony.
52. In any event, the second instance even
otherwise has no substance for the simple reason
that PW3 and PW4 were the only persons who
were aware of the meeting held on 01.09.1991 at
the appellant’s house where PW3 had heard the
plan for elimination of Siva and on his return from
appellant's house, he told to PW4 of the said
incident. In these circumstances and with this
background, if PW3 went to the hospital, which
was very near to the tea stall, there is nothing
unnatural in his visit.
53. Yet, another last circumstance pointed out by
the learned counsel for the appellant was that PW3
joined the services of PW4 on 01.05.1991 and left
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within five days. This according to learned counsel
shows that he was a chance witness. We do not
agree.
54. PW3 was working as a daily wager on
payment of Rs.7/ per day with PW4. In these
circumstances, if PW3 worked for one week or so
and discontinued thereafter would not mean that he
did not work at all with PW4. After all, this was
not an appointment in some systematic organization
but was with one individual in his tea stall running
under a tree. There is, therefore, nothing by which
one could conclude that PW3 did not work at all
with PW4 during those five days. There might be
myriad reasons for PW3 to leave this job. It is more
so when it was proved that PW4 was running his
teashop on that spot for quite a long time and
therefore was conversant with the locality and
passersby.
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55. It is also not the case of appellant that PW3
had any previous enmity with any of the accused
and with that end in view, he stepped in witness
box to speak against them. PW3 was a young boy
aged around 17 years with no criminal background.
As mentioned above, all this could be put to PW3
and PW4 in their cross examination by the
appellant but he did not choose to do so and gave
up his right to cross examine these witnesses.
56. In the light of detailed foregoing discussion, we
are of the considered opinion that the prosecution
was able to prove beyond all reasonable doubt with
the aid of evidence that the appellant (A6) was one
of the active members of the criminal conspiracy
along with other accused and hatched the plan in
his house in the meeting which was held on
01.09.1991 to kill/eliminate Siva and in furtherance
thereof accused (A1 to A5) successfully
killed/eliminated Siva on 05.09.1991 by causing
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Siva stab injuries with the aid of knife resulting in
his homicidal death. The appellant's conviction and
award of life sentence as prescribed under Section
302 read with Section 120B, IPC was, therefore,
rightly held made out along with other accused
persons by the two courts below. We, therefore,
concur with their view and accordingly uphold it.
57. We may only mention that it was not the case
of the appellant and nor was urged also that his
case falls under Section 120B (2), IPC and therefore
he be awarded less sentence as prescribed therein.
58. In view of the foregoing discussion, we find no
merit in this appeal. The appeal thus fails and is
accordingly dismissed.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[INDU MALHOTRA]
New Delhi;
October 10, 2018