CASE NO.: Appeal (crl.) 699 1998 PETITIONER: SAJU Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT: 15/11/2000 BENCH: K.T.Thomas, R.P.Sethi JUDGMENT:
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SETHI, J.
Ms.Jameela a young muslim woman was found killed on
18.9.1991 by Baiju, allegedly hired killer at Vattolikadavu
road after having received stab injuries. PW1, the elder
brother of the deceased lodged the First Information Report
in Police Station Ayyuampuzha without naming any person as
accused. At the time of her death, the deceased was in
advance stage of pregnancy. Accused No.1, namely, Biju was
arrested on 19.9.1991. The lungi and shirt MOs 12 and 13
respectively worn by him at the time of crime were seized as
per Mahazar (P16). After recording his disclosure statement
MO1, the weapon of offence was recovered from the bushes
where he had allegedly hidden it. Accused No.2 was also
arrested in connection with the murder of Ms.Jameela after
three days of the occurrence. Upon trial both the accused
were found guilty of the offences punishable under Sections
120B and 302 besides Section 109 of the Indian Penal Code.
They were sentenced to undergo life imprisonment. The
appellant was also imposed a fine of Rs.10,000/- and in case
of default, directed to under rigorous imprisonment for two
years. Aggrieved by the judgment of the Sessions Court,
both the accused persons filed appeal before the High Court
which was dismissed on 1.4.1997 vide the judgment impugned
in this appeal. This Court on 14.7.1998 dismissed the SLP
in so far as it related to Accused No.1, namely, Biju and
granted leave only with respect to the appellant Saju. The
case of the prosecution is that Jameela, a young unmarried
woman of 24 years of age had developed illicit relations
with the appellant, with the result that she became
pregnant. She insisted that the appellant should marry her
but her request was declined on the ground that the marriage
was not possible because Jameela and the appellant belonged
to different religions. The appellant is stated to have
quarreled with the deceased for which Jameela filed a
complaint against him at Police Station Ayyuampuzha.
Jameela did not accede to the advise of the appellant to
have abortion. On the date of occurrence she is stated to
have gone to the hospital at about 11 a.m. for a check up
and on her way back she visited her sister Amina (PW9) at
about 2.30 p.m. After she left the residence of her sister
she was fatally stabbed by Accused No.1, Biju who had
followed her from the bus stop where she had alighted from
the bus. After inflicting the stab injuries the said
accused left the place of occurrence. The offence was
alleged to have been committed by Accused No.1 in conspiracy
with Accused No.2 who wanted to get rid of the deceased.
Admittedly there is no eye-witness in the case which the
prosecution has sought to prove by leading circumstantial
evidence. The Trial Court summed up the circumstances as
under: “(1) Jameela and the second accused who were
residents of the Kalady Plantation Estate engaged themselves
in love affair and had quarreled when the former disclosed
that she was pregnant and she also disclosed about her
pregnancy to her mother (PW6) and other close relations like
PW9 and 18.
(2) Jameela requested 2nd accused to marry her and
that was turned down by second accused because they belonged
to different religions.
(3) When the close relatives of Jameela persuaded
second accused to marry Jameela since she became pregnant
through him, second accused proclaimed that she would not
allow Jameela to deliver the child. Second accused
manhandled Jameela in connection with this dispute and that
was seen by her neighbours and there was also involvement of
the police.
(4) The conduct of the accused on the fateful day
(both accused were seen together on the date of occurrence
by several persons and from PW. 11’s tea shop they had
taken food.
(5) A1 was seen washing his face and hands at the
thodu near to the place of occurrence by PW 6 at about the
time of occurrence and dress worn by him on that date have
been recovered and identified as MOs 12 and 13.
(6) First accused was seen at about 3 p.m. on the
date of occurrence while he was going through Kappelappalli
by persons like PW17.
(7) Recovery of MO1 as a result of information given
by first accused from the bushes where it was hidden and
very near to the place of occurrence.
(8) Recovery of MO 25 footwears (Hawai Chappals) from
the place of occurrence and identified as similar to the one
purchased by first accused from the shop of PW 14 few days
prior to the date of occurrence.
(9) Immediately after the incident the accused were
absconding and arrest of first accused on 19.9.1991 by PW 22
from the place he was hiding.”
According to the prosecution the injuries found on the
person of the deceased were caused by Accused No.1, Biju
with the weapon of offence seized in the case at his
instance consequent upon his disclosure statement. His
conviction and sentence has already been upheld by this
Court while dismissing the SLP filed by him. The appellant
has been found guilty and convicted of offences under
Section 302 read with Section 120B and Section 119 of the
IPC. It may be reiterated that there is no direct evidence
either regarding abetment or the criminal conspiracy
attributable to the appellant. Both the offences are held
to be proved on the basis of circumstantial evidence. To
prove the charge of criminal conspiracy the prosecution is
required to establish that two or more persons had agreed to
do or caused to be done, an illegal act or an act which is
not illegal, by illegal means. It is immaterial whether the
illegal act is the ultimate object of such crime or is
merely incidental to that object. To attract the
applicability of Section 120B it has to be proved that all
the accused had the intention and they had agreed to commit
the crime. There is no doubt that conspiracy is hatched in
private and in secrety for which direct evidence would
rarely be available. It is also not necessary that each
member to a conspiracy must know all the details of the
conspiracy. This Court in Yash Pal Mittal v. State of
Punjab [AIR 1977 SC 2433] held: “The offence of criminal
conspiracy under S.120A is a distinct offence introduced for
the first time in 1913 in Chapt.V-A of the Penal Code. The
very agreement, concert or league is the ingredient of the
offence. It is not necessary that all the conspirators must
know each and every detail of the conspiracy as long as they
are co- conspirators in the main object of the conspiracy.
There may be so many devices and techniques adopted to
achieve the common goal of the conspiracy and there may be
division of performances in the chain of actions with one
object to achieve the real end of which every collaborator
must be aware and in which each one of them must be
interested. There must be unity of object or purpose but
there may be plurality of means sometimes even unknown to
one another, amongst the conspirators. In achieving the
goal several offences may be committed by some of the
conspirators even unknown to the others. The only relevant
factor is that all means adopted and illegal acts done must
be and purported to be in furtherance of the object of the
conspiracy even though there may be sometimes mis-fire or
over-shooting by some of the conspirators. Even if some
steps are resorted to by one or two of the conspirators
without the knowledge of the others it will not affect the
culpability of those others when they are associated with
the object of the conspiracy. The significance of criminal
conspiracy under S.120A is brought out pilthily by this
Court in EG Barsay v. The State of Bombay (1962) 2 SCR 195
at p.229 thus:
“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. Under S.43 of the Indian Penal Code, an act would be
illegal if it is an offence or if it is prohibited by law.
Under the first charge the accused are charged with having
conspired to do three categories of illegal acts, and the
mere fact that all of them could not be convicted separately
in respect of each of the offences has no relevancy in
considering the question whether the offence of conspiracy
has been committed. They are all guilty of the offence of
conspiracy to do illegal acts, though for individual
offences all of them may be liable”.
We are in respectful agreement with the above
observations with regard to the offence of criminal
conspiracy.”
In a criminal case the onus lies on the prosecution to
prove affirmatively that the accused was directly and
personally connected with the acts or omissions attributable
to the crime committed by him. It is settled position of
law that act or action of one of the accused cannot be used
as evidence against other. However, an exception has been
carved out under Section 10 of the Evidence Act in the case
of conspiracy. To attract the applicability of Section 10
of the Evidence Act, the Court must have reasonable ground
to believe that two or more persons had conspired together
for committing an offence. It is only then that the
evidence of action or statement made by one of the accused
could be used as evidence against the other. This Court in
Kehar Singh & Ors. v. The State (Delhi Admn.) [AIR 1988 SC
1883] has held: “Section 120A provides for the definition
of criminal conspiracy and it speaks of that when two or
more persons agree to do or cause to be done an act which is
an illegal act and S.120-B provides for the punishment for a
criminal conspiracy and it is interesting to note that in
order to prove a conspiracy it has always been felt that it
was not easy to get direct evidence. It appears that
considering this experience about the proof of conspiracy
that S.10 of the Indian Evidence Act was enacted. Section
10 reads:
“Things said or done by conspirator in reference to
common design – when there is reasonable ground to believe
that two or more persons have conspired together to commit
an offence or an actionable wrong, anything said, done or
written by any one of such persons in reference to their
common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as
against each of the persons believed to be so conspiring, as
well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such
person was a party to it.”
This section mainly could be divided into two: the
first part talks of where there is reasonable ground to
believe that two or more persons have conspired to commit an
offence or an actionable wrong, and it is only when this
condition precedent is satisfied that the subsequent part of
the section comes into operation and it is material to note
that this part of the Section talks of reasonable grounds to
believe that two or more persons have conspired together and
this evidently has reference to S.120-A where it is provided
“When two or more persons agree to do, or cause to be done”.
This further has been safeguarded by providing a proviso
that no agreement except an agreement to commit an offence
shall amount to criminal conspiracy. It will be therefore
necessary that a prima facie case of conspiracy has to be
established for application of S.10. The second part of
Section talks of anything said, done or written by any one
of such persons in reference to the common intention after
the time when such intention was first entertained by any
one of them is relevant fact against each of the persons
believed to be so conspiring as well for the purpose for
proving the existence of the conspiracy as for the purpose
of showing that any such person was a party to it. It is
clear that this second part permits the use of evidence
which otherwise could not be used against the accused
person. It is well settled that act or action of one of the
accused could not be used as evidence against the other.
But an exception has been carved out in S.10 in cases of
conspiracy. The second part operates only when the first
part of the section is clearly established i.e. there must
be reasonable ground to believe that two or more persons
have conspired together in the light of the language of
S.120A. It is only then the evidence of action or
statements made by one of the accused, could be used as
evidence against the other. In Sardar Sardul Singh
Caveeshar v. State of Maharashtra (1964) 2 SCR 378, Subba
Rao, J. (as he then was) analysed the provision of S.10 and
made the following observations:
“This section, as the opening words indicate will come
into play when the court is satisfied that there is
reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable
wrong, that is to say, there should be a prima facie
evidence that a person was a party to the conspiracy before
his acts can be used against his co-conspirators. Once such
a reasonable ground exists, anything said, done or written
by one of the conspirators in reference to the common
intention, after the said intention was entertained, is
relevant against the others, not only for the purpose of
proving the existence of the conspiracy but also for proving
that the other person was a party to it. The evidentiary
value of the said acts is limited by two circumstances,
namely, that the acts shall have reference to their common
intention and in respect of a period after such intention
was entertained by any one of them. The expression in
reference to their common intention is very comprehensive
and it appears to have been designedly used to give it a
wider scope than the words “in furtherance of in the English
law; with the result, anything said, done or written by a
co-conspirator, after the conspiracy was formed, will be
evidence against the other before he entered the field of
conspiracy or after he left it. Another important
limitation implicit in the language is indicated by the
expressed scope of its relevancy. Anything so said, done or
written is a relevant fact only ‘as against each of the
person believed to be so conspiring as well for the purpose
of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it’.
It can be used only for the purpose of proving the existence
of the conspiracy or that the other person was a party to
it. It cannot be said in favour of the other party or for
the purpose of showing that such a person was not a party to
the conspiracy. In short, the Section can be analysed as
follows: (1) There shall be a prima facie evidence
affording a reasonable ground for a court to believe that
two or more persons are members of a conspiracy; (2) if the
said condition is fulfilled, anything said, done or written
by any one of them in reference to their common intention
will be evidence against the other; (3) anything said, done
or written by him should have been said, done or written by
him after the intention was formed by any one of them; (4)
it would also be relevant for the said purpose against
another who entered the conspiracy whether it was said, done
or written before he entered the conspiracy or after he left
it; (5) it can only be used against a co- conspirator and
not in his favour.”
It was further held:
“From an analysis of the section, it will be seen that
Sec.10 will come into play only when the court is satisfied
that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence. There
should be, in other words, a prima facie evidence that the
person was a party to the conspiracy before his acts can be
used against his co-conspirator. One such prima facie
evidence exists, anything said, done or written by one of
the conspirators in reference to the common intention, after
the said intention was first entertained, is relevant
against the others. It is relevant not only for the purpose
of proving the existence of conspiracy, but also for proving
that the other person was a party to it. It is true that
the observations of Subba Rao, J. in Sardul Singh Caveeshar
v. State of Maharashtra, (1964) 2 SCR 378 lend support to
the contention that the admissibility of evidence as between
co-conspirators would be liberal than in English Law. The
learned Judge said (at 390):
“The evidentiary value of the said acts is limited by
two circumstances, namely, that the acts shall be in
reference to their common intention and in respect of a
period after such intention was entertained by any one of
them. The expression “in reference to their common
intention” is very comprehensive and it appears to have been
designedly used to give it a wider scope than the words “in
furtherance of ” in English Law; with the result anything
said, done or written by a co-conspirator, after the
conspiracy was formed, will be evidence against the other
before he entered the field of conspiracy or after he left
it….”
But, with respect, the above observations that the
words of Sec.10 have been designedly used to give a wider
scope than the concept of conspiracy in English Law, may not
be accurate. This particular aspect of the law has been
considered by the Privy Council in Mirza Akbar v. King
Emperor, AIR 1940 PC 176 at p.180, where Lord Wright said
that there is no difference in principle in India Law in
view Sec.10 of the Evidence Act.
The decision of the Privy Council in Mirza Akbar’s
case has been referred to with approval in Sardul Singh
Caveeshar v. State of Bombay, 1958 SCR 161 at p.193: (AIR
1957 SC 747 AT P.760) where Jagannadhadas, J., said:
“The limits of the admissibility of evidence in
conspiracy case under S.10 of the Evidence Act have been
authoritatively laid down by the Privy Council in Mirza King
v. King Emperor (supra). In that case, their Lordships of
the Privy Council held that S.10 of the Evidence Act must be
construed in accordance with the principle that the thing
done, written or spoken was something done in carrying out
the conspiracy and was receivable as a step in the proof of
the conspiracy. They notice that evidence receivable under
S.10 of the Evidence Act of “anything said, done or written,
by any one of such persons” (i.e. conspirators) must be “in
reference to their common intention”. But their Lordships
held that in the context (notwithstanding the amplitude of
the above phrase) the words therein are not capable of being
widely construed having regard to the well- known principle
above enunciated.”
In Suresh Chandra Bahri v. State of Bihar [AIR 1994
SC 2420] this Court reiterated that the essential ingredient
of criminal conspiracy is the agreement to commit an
offence. After referring to the judgments in NMMY Momin v.
State of Maharashtra [AIR 1971 SC 885] and State (Delhi
Admn) v. V.C. Shukla [AIR 1980 SC 1382] it was held in
S.C. Bahri’s case (Supra) as under: “A cursory look to the
provisions contained in S.120-A reveal that a criminal
conspiracy envisages an agreement between two or more
persons to commit an illegal act or an act which by itself
may not be illegal but the same is done or executed by
illegal means. Thus the essential ingredient of the offence
of criminal conspiracy is the agreement to commit an
offence. In a case where the agreement is for
accomplishment of an act which by itself constitutes an
offence, then in that event no overt act is necessary to be
proved by the prosecution because in such a fact situation
criminal conspiracy is established by proving such an
agreement. In other words, where the conspiracy alleged is
with regard to commission of a serious crime of the nature
as contemplated in S.120-B read with the provisio to
sub-sec.(2) of S.120-A of the IPC, then in that event mere
proof of an agreement between the accused for commission of
such a crime alone is enough to bring about a conviction
under S.120-B and the proof of any overt act by the accused
or by any one of them would not be necessary. The
provisions in such a situation do not require that each and
every person who is a party to the conspiracy must do some
overt act towards the fulfilment of the object of
conspiracy, the essential ingredient being an agreement
between the conspirators to commit the crime and if these
requirements and ingredients are established the act would
fall within the trapping of the provisions contained in
S.120-B since from its very nature a conspiracy must be
conceived and hatched in complete secrecy, because otherwise
the whole purpose may frustrate and it is common experience
and goes without saying that only in very rare cases one may
come across direct evidence of a criminal conspiracy to
commit any crime and in most of the cases it is only the
circumstantial evidence which is available from which an
inference giving rise to the conclusion of an agreement
between two or more persons to commit an offence may be
legitimately drawn.”
It has thus to be established that the accused charged
with criminal conspiracy had agreed to pursue a course of
conduct which he knew leading to the commission of a crime
by one or more persons to the agreement, of that offence.
Besides the fact of agreement the necessary mens rea of the
crime is also required to be established. In the instant
case the hatching of conspiracy between the accused persons
has been sought to be proved on the ground that as the
deceased had declined to get the pregnancy aborted, the
appellant wanted to get rid of her, suggesting the existence
of circumstance of motive. Another circumstance relied upon
by the prosecution is that both the accused were seen
together on the date of murder near or about the place of
occurrence. Some conversation is also stated to have taken
place between the accused persons, the contents of which are
neither disclosed nor suggested. Accused No.1 alone was
found to have boarded the bus in which the deceased was
travelling and alighted from it along with her. Regarding
the circumstance relating to the existence of motive, PW9
who is the sister of the Ms.Jameela deposed that the
deceased had told her that the pregnancy conceived by her
was through the appellant. According to her the appellant
admitted the paternity of conceived child in the initial
stage but denied the paternity attributed to him six months
thereafter. The trial court found that “in the answers
elicited in the further cross-examination also it would
appear that her version about the first source of knowledge
about the pregnancy of Jameela was inconsistent and
unnatural”. Dealing with her statement, the trial court
observed that PW9 had no occasion to meet Jameela as she was
not visiting her mother’s house and also because the second
accused had consented for the marriage. The only evidence
regarding the appellant being responsible for the conception
of the child is the testimony of Nabeesa (PW6), the mother
of the deceased. She had stated that she came to know about
the pregnancy of Jameela only when she tried to fix her
marriage with some person and Jameela told her that she was
in love with the appellant. It is not discerned from the
testimony of PW6 that Jameela had conceived the child from
the appellant. What the witness stated was only that
Jameela and the appellant were in love and they knew each
other for a period of two years before the death of Jameela.
According to her the marriage between the deceased and the
appellant could not be solemnised as they belonged to
different religions. She never saw the deceased and the
appellant talking as according to her they used to talk only
in her absence. The appellant is stated to have visited the
house of the aforesaid witness on 15.5.1991 and assaulted
the deceased regarding which report Exhibit P-4 was lodged.
According to her Jameela was killed while returning from the
hospital where she had gone for a check up. Nowhere in her
testimony Nabeesa (PW6) stated that the appellant wanted the
child, conceived by Jameela, to be aborted. There is no
positive evidence proving or suggesting that the appellant
was responsible for the pregnancy of the deceased. In the
absence of evidence regarding the circumstance attributing
the pregnancy of the deceased to the appellant and his
insistence for abortion of the child, the important
circumstance of motive cannot be held to have been proved.
The trial court, therefore, rightly did not rely upon the
testimony of PW9 Amina with respect to the existence of the
said circumstance. The testimony of PW18 Meharban who is
the sister-in-law of the deceased also does not inspire
confidence to link the appellant with the pregnancy of the
deceased. PW2 who is the neighbour of the deceased stated
that she had known about the pregnancy from Jameela herself.
According to her the appellant had quarreled with Jameela in
connection with the pregnancy. Despite denial of the
appellant Jameela was stated to have asserted that she did
not have sexual intercourse with anyone other than the
appellant. In her cross-examination the witnesses stated
that the appellant never threatened Jameela. She admitted
that the appellant had apparently told Jameela that he was
not the father of the child in her womb. The witness
conceded that she had no direct knowledge about the
relationship of the deceased with the appellant. PW3 who is
a neighbour and husband of PW2 was declared hostile as he
did not support the case of the prosecution. It was deposed
by him that he was not aware that Jameela had requested the
appellant to marry her. PW2 stated that the appellant had
categorically stated that he was not responsible for the
pregnancy as someone-else was responsible for it. The
courts below, therefore, were not justified in holding this
circumstance proved for the existence of criminal conspiracy
to commit the crime of murder of the deceased. In the
absence of any evidence suggesting the existence of a
circumstance of insistence by the appellant for abortion, an
important link in the chain of circumstances attributed
against him is missing. Even otherwise motive by itself
cannot be a proof of conspiracy. In Girja Shankar Misra v.
State of U.P. [AIR 1993 SC 2618] though it was found that
there were serious misunderstanding between the deceased and
the appellant because of the illicit relationship between
the appellant and the wife of the deceased, yet the Court
held that despite the fact that the appellant had a motive,
he could not be held responsible for hatching a conspiracy.
The other important circumstance relied by the prosecution
and believed both by the trial and the High Court is the
presence of the appellant in the company of Accused No.1
near or about the place of occurrence on the date of
incident. It is true that a number of witnesses have
deposed that they had seen both the accused together on the
date of occurrence but it is equally true that such meeting
was not unusual as admittedly they were working together in
the plantation. Mere meeting would by itself not be
sufficient to infer the existence of a criminal conspiracy.
There is no suggestion, much less legal evidence to the
effect that both the accused were so intimate which would
have compelled Accused No.1 to agree to be a conspirator for
the killing of the deceased at the instance of the
appellant. The Accused No.1 is also not stated to be a
habitual criminal. There is no suggestion of the accused
No.1 being hired for the purpose of killing the deceased.
Ramakrishnan (PW3) did not support the case of the
prosecution of having seen both the accused sitting and
talking to each other near the bushes on the day of
occurrence. To a specific question as to whether he had
seen any other person going through the road towards the
side where Accused No.1 had gone, the witness emphatically
replied in the negative. Davis (PW5) stated that on the
date of occurrence he had seen Accused No.1 at about 2o
clock in the afternoon. In reply to a question as to
whether he had seen anyone-else going through the road while
Accused No.2 was talking to PW4, the witness replied “I have
not noticed”. Nabeesa (PW6) who is the mother of the
deceased has stated that on the date of occurrence both the
accused were sitting near her house on some timber logs at
about 2 p.m. but at 2.45 p.m. she saw only Accused No.1
washing his knife near the stream which is on the southern
side of her house. What happened between 2.00 p.m. to 2.45
p.m. is not known to the witness. Her deposition is mainly
with respect to the relationship of the deceased with the
appellant. Jose (PW7) stated in the trial court that on the
date of occurrence at about 2.45 p.m., the appellant had
called him. He told him to come after some time. He went
there and talked to the appellant, George (PW8) and Mohanan
(PW10). He saw Jameela, deceased getting down from the bus
at about 2.30 p.m. She had gone to the house of her sister
Amina (PW9). He did not see Accused No.1 with Accused No.2.
He saw only the appellant, PW8, PW10 and some other people.
George PW8 stated that he saw appellant on the date of
occurrence at about 2.30 p.m. at the gate of his house.
Both the witness and the appellant had conversation on the
steps of the house of the witness. Appellant was there for
about half an hour. This statement of PW8 belies the
averments of other witnesses that the appellant committed
the crime in conspiracy with Accused No.1 at about 2.45 p.m.
Amina (PW9), the sister of the deceeased stated that she had
seen both the accused together sitting on the timber log
near the road. She did not see appellant accompanying the
accused No.1 thereafter. Devasi (PW11) Stated that on the
day of occurrence both the accused had come to his shop at
about 1 p.m. and each had one plate tapioca and meat.
Meharban (PW18) stated “I saw Accused No.2 at 2.30 p.m. at
the timber log. I did not see accused No.1. I saw A-2
calling PW-7 Jose. Then I saw he was talking with PW-8
George. That was about 2.45 in the afternoon. I saw A-1
following Jameela when she alighted the bus. Then I saw A-1
swiftly walking from eastern side to western side”. This
statement of the prosecution witness does not suggest, even
by implication that both the accused were together on the
day of occurrence. The statement of the witnesses noticed
hereinabove may probabilise the presence of both the accused
together but does not prove beyond doubt that they were
together near the road at the place of occurrence on the
fateful day. Assuming they were together, would not
necessarily lead to the conclusion that they had met in
furtherance of the conspiracy to murder the deceased. We
are of the opinion that the prosecution did not succeed in
proving this circumstance beyond reasonable doubt.
Conviction of the appellant on the basis of the existence of
the alleged circumstance cannot be justified. The appellant
is entitled to the benefit of the reasonable doubt. The
High Court was, therefore, not justified to hold that the
accused persons had been seen together before and after the
incident when Jameela boarded the bus for the Hospital and
alighted at the bus stop around 2.30 p.m. The High Court
was also not justified to hold that there was no particular
reason for them to be together except as stated by the
prosecution. It has come in the prosecution evidence that
the witnesses and the accused were plantation workers and
would usually meet each other. In the absence of the
existence of circumstances suggesting the hatching of
criminal conspiracy, we are of the opinion that the
appellant could not have been convicted and sentenced with
the aid of Section 120B or Section 109 IPC. No fact or
circumstance with respect to the abetment attracting the
applicability of Section 109 IPF has been brought to our
notice. To prove the charge of abetment, the prosecution is
required to prove that the abettor had instigated for the
doing of a particular thing or engaged with one or more
other person or persons in any conspiracy for the doing of
that thing or intentionally aided by an act of illegal
omission, doing of that thing. The prosecution miserably
failed to prove the existence of any of the ingredients of
Section 107 IPC. Learned counsel appearing for the
respondent-State submitted that after the dismissal of the
appeal of Accused No.1, the charge of conspiracy against the
appellant should be deemed proved. We are not impressed
with such a submission particularly when the prosecution had
alleged that the said accused had committed the crime of
murder by stabbing the deceased with his knife. Merely
because the charge of conspiracy fails against the
appellant, it cannot be said that the conviction and
sentence awarded to the Accused No.1 was illegal. This
Court in Babu Singh v. State of Punjab [JT 1996 (9) SC 753]
held that in a case where two accused were alleged to have
conspired and killed their younger brother, the acquittal of
one would not entitle the other accused to be acquitted.
The Court observed: “Consequently, it was held that the
prosecution failed to establish the charge of conspiracy.
But merely because the charge of conspiracy failed, the
prosecution case so far as the actual assault being given by
appellant Babu Singh cannot be ipso facto thrown away.”
In view of what has been held hereinabove, we are
inclined to hold that the prosecution did not prove the
charge of conspiracy against the appellant beyond all
reasonable doubt. We are of the opinion that the appellant
is entitled to the benefit of reasonable doubt existing in
the case. The appeal is accordingly allowed and the
impugned judgment of the trial as well as of the High Court,
in so far as it relates to the appellant, is set aside and
the appellant is acquitted of the charges for which he was
convicted and sentenced. The appellant shall be set at
liberty forthwith unless required in some other case.