{"id":118905,"date":"2000-11-15T00:00:00","date_gmt":"2000-11-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/saju-vs-state-of-kerala-on-15-november-2000"},"modified":"2015-04-04T05:19:28","modified_gmt":"2015-04-03T23:49:28","slug":"saju-vs-state-of-kerala-on-15-november-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/saju-vs-state-of-kerala-on-15-november-2000","title":{"rendered":"Saju vs State Of Kerala on 15 November, 2000"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Saju vs State Of Kerala on 15 November, 2000<\/div>\n<div class=\"doc_author\">Author: Sethi<\/div>\n<div class=\"doc_bench\">Bench: K.T.Thomas, R.P.Sethi<\/div>\n<pre>           CASE NO.:\nAppeal (crl.) 699 1998\n\n\nPETITIONER:\nSAJU\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KERALA\n\nDATE OF JUDGMENT:\t15\/11\/2000\n\nBENCH:\nK.T.Thomas, R.P.Sethi\n\n\n\n\nJUDGMENT:\n<\/pre>\n<p>L&#8230;..I&#8230;&#8230;&#8230;T&#8230;&#8230;.T&#8230;&#8230;.T&#8230;&#8230;.T&#8230;&#8230;.T&#8230;&#8230;.T..J<\/p>\n<p>      SETHI, J.\n<\/p>\n<p>      Ms.Jameela  a  young muslim woman was found killed  on<br \/>\n18.9.1991  by Baiju, allegedly hired killer at Vattolikadavu<br \/>\nroad  after  having received stab injuries.  PW1, the  elder<br \/>\nbrother\t of the deceased lodged the First Information Report<br \/>\nin  Police Station Ayyuampuzha without naming any person  as<br \/>\naccused.   At  the  time of her death, the deceased  was  in<br \/>\nadvance\t stage of pregnancy.  Accused No.1, namely, Biju was<br \/>\narrested  on  19.9.1991.  The lungi and shirt MOs 12 and  13<br \/>\nrespectively worn by him at the time of crime were seized as<br \/>\nper Mahazar (P16).  After recording his disclosure statement<br \/>\nMO1,  the  weapon of offence was recovered from\t the  bushes<br \/>\nwhere  he  had allegedly hidden it.  Accused No.2  was\talso<br \/>\narrested  in connection with the murder of Ms.Jameela  after<br \/>\nthree  days of the occurrence.\tUpon trial both the  accused<br \/>\nwere  found guilty of the offences punishable under Sections<br \/>\n120B  and 302 besides Section 109 of the Indian Penal  Code.<br \/>\nThey  were  sentenced  to undergo  life\t imprisonment.\t The<br \/>\nappellant was also imposed a fine of Rs.10,000\/- and in case<br \/>\nof  default, directed to under rigorous imprisonment for two<br \/>\nyears.\t Aggrieved  by the judgment of the  Sessions  Court,<br \/>\nboth  the accused persons filed appeal before the High Court<br \/>\nwhich  was dismissed on 1.4.1997 vide the judgment  impugned<br \/>\nin  this appeal.  This Court on 14.7.1998 dismissed the\t SLP<br \/>\nin  so\tfar as it related to Accused No.1, namely, Biju\t and<br \/>\ngranted\t leave only with respect to the appellant Saju.\t The<br \/>\ncase  of the prosecution is that Jameela, a young  unmarried<br \/>\nwoman  of  24 years of age had developed  illicit  relations<br \/>\nwith  the  appellant,  with  the   result  that\t she  became<br \/>\npregnant.   She insisted that the appellant should marry her<br \/>\nbut her request was declined on the ground that the marriage<br \/>\nwas  not possible because Jameela and the appellant belonged<br \/>\nto  different  religions.  The appellant is stated  to\thave<br \/>\nquarreled  with\t the  deceased\tfor which  Jameela  filed  a<br \/>\ncomplaint  against  him\t at   Police  Station\tAyyuampuzha.<br \/>\nJameela\t did  not accede to the advise of the  appellant  to<br \/>\nhave  abortion.\t On the date of occurrence she is stated  to<br \/>\nhave  gone to the hospital at about 11 a.m.  for a check  up<br \/>\nand  on\t her way back she visited her sister Amina (PW9)  at<br \/>\nabout  2.30 p.m.  After she left the residence of her sister<br \/>\nshe  was  fatally  stabbed  by Accused No.1,  Biju  who\t had<br \/>\nfollowed  her from the bus stop where she had alighted\tfrom<br \/>\nthe  bus.   After  inflicting  the stab\t injuries  the\tsaid<br \/>\naccused\t left  the  place of occurrence.   The\toffence\t was<br \/>\nalleged to have been committed by Accused No.1 in conspiracy<br \/>\nwith  Accused  No.2 who wanted to get rid of  the  deceased.<br \/>\nAdmittedly  there  is no eye-witness in the case  which\t the<br \/>\nprosecution  has  sought to prove by leading  circumstantial<br \/>\nevidence.   The\t Trial Court summed up the circumstances  as<br \/>\nunder:\t &#8220;(1)  Jameela\tand  the  second  accused  who\twere<br \/>\nresidents of the Kalady Plantation Estate engaged themselves<br \/>\nin  love affair and had quarreled when the former  disclosed<br \/>\nthat  she  was\tpregnant and she also  disclosed  about\t her<br \/>\npregnancy to her mother (PW6) and other close relations like<br \/>\nPW9 and 18.\n<\/p>\n<p>      (2)  Jameela  requested 2nd accused to marry  her\t and<br \/>\nthat was turned down by second accused because they belonged<br \/>\nto different religions.\n<\/p>\n<p>      (3)  When\t the  close relatives of  Jameela  persuaded<br \/>\nsecond\taccused\t to marry Jameela since she became  pregnant<br \/>\nthrough\t him,  second accused proclaimed that she would\t not<br \/>\nallow\tJameela\t to  deliver   the  child.   Second  accused<br \/>\nmanhandled  Jameela in connection with this dispute and that<br \/>\nwas seen by her neighbours and there was also involvement of<br \/>\nthe police.\n<\/p>\n<p>      (4)  The\tconduct\t of the accused on the\tfateful\t day<br \/>\n(both  accused were seen together on the date of  occurrence<br \/>\nby  several  persons  and from PW.  11&#8217;s tea shop  they\t had<br \/>\ntaken food.\n<\/p>\n<p>      (5)  A1  was  seen washing his face and hands  at\t the<br \/>\nthodu  near to the place of occurrence by PW 6 at about\t the<br \/>\ntime  of occurrence and dress worn by him on that date\thave<br \/>\nbeen recovered and identified as MOs 12 and 13.\n<\/p>\n<p>      (6)  First  accused was seen at about 3 p.m.   on\t the<br \/>\ndate  of occurrence while he was going through Kappelappalli<br \/>\nby persons like PW17.\n<\/p>\n<p>      (7)  Recovery of MO1 as a result of information  given<br \/>\nby  first  accused from the bushes where it was\t hidden\t and<br \/>\nvery near to the place of occurrence.\n<\/p>\n<p>      (8)  Recovery of MO 25 footwears (Hawai Chappals) from<br \/>\nthe place of occurrence and identified as similar to the one<br \/>\npurchased  by first accused from the shop of PW 14 few\tdays<br \/>\nprior to the date of occurrence.\n<\/p>\n<p>      (9)  Immediately\tafter the incident the accused\twere<br \/>\nabsconding and arrest of first accused on 19.9.1991 by PW 22<br \/>\nfrom the place he was hiding.&#8221;\n<\/p>\n<p>      According to the prosecution the injuries found on the<br \/>\nperson\tof  the deceased were caused by Accused\t No.1,\tBiju<br \/>\nwith  the  weapon  of  offence seized in  the  case  at\t his<br \/>\ninstance  consequent  upon  his disclosure  statement.\t His<br \/>\nconviction  and\t sentence  has already been upheld  by\tthis<br \/>\nCourt  while dismissing the SLP filed by him.  The appellant<br \/>\nhas  been  found  guilty  and convicted\t of  offences  under<br \/>\nSection\t 302  read with Section 120B and Section 119 of\t the<br \/>\nIPC.   It may be reiterated that there is no direct evidence<br \/>\neither\tregarding  abetment  or\t  the  criminal\t  conspiracy<br \/>\nattributable  to the appellant.\t Both the offences are\theld<br \/>\nto  be\tproved on the basis of circumstantial evidence.\t  To<br \/>\nprove  the charge of criminal conspiracy the prosecution  is<br \/>\nrequired to establish that two or more persons had agreed to<br \/>\ndo  or caused to be done, an illegal act or an act which  is<br \/>\nnot illegal, by illegal means.\tIt is immaterial whether the<br \/>\nillegal\t act  is  the ultimate object of such  crime  or  is<br \/>\nmerely\t incidental   to  that\t object.   To  attract\t the<br \/>\napplicability  of Section 120B it has to be proved that\t all<br \/>\nthe  accused had the intention and they had agreed to commit<br \/>\nthe  crime.  There is no doubt that conspiracy is hatched in<br \/>\nprivate\t and  in  secrety for which  direct  evidence  would<br \/>\nrarely\tbe  available.\tIt is also not necessary  that\teach<br \/>\nmember\tto  a  conspiracy must know all the details  of\t the<br \/>\nconspiracy.   This  Court  in <a href=\"\/doc\/1378876\/\">Yash Pal Mittal v.   State  of<br \/>\nPunjab<\/a>\t[AIR  1977 SC 2433] held:  &#8220;The offence of  criminal<br \/>\nconspiracy under S.120A is a distinct offence introduced for<br \/>\nthe  first time in 1913 in Chapt.V-A of the Penal Code.\t The<br \/>\nvery  agreement, concert or league is the ingredient of\t the<br \/>\noffence.  It is not necessary that all the conspirators must<br \/>\nknow each and every detail of the conspiracy as long as they<br \/>\nare  co- conspirators in the main object of the\t conspiracy.<br \/>\nThere  may  be\tso many devices and  techniques\t adopted  to<br \/>\nachieve\t the common goal of the conspiracy and there may  be<br \/>\ndivision  of  performances in the chain of actions with\t one<br \/>\nobject\tto achieve the real end of which every\tcollaborator<br \/>\nmust  be  aware\t and  in  which each one  of  them  must  be<br \/>\ninterested.   There  must be unity of object or purpose\t but<br \/>\nthere  may  be plurality of means sometimes even unknown  to<br \/>\none  another,  amongst the conspirators.  In  achieving\t the<br \/>\ngoal  several  offences\t may  be committed by  some  of\t the<br \/>\nconspirators  even unknown to the others.  The only relevant<br \/>\nfactor\tis that all means adopted and illegal acts done must<br \/>\nbe  and purported to be in furtherance of the object of\t the<br \/>\nconspiracy  even  though there may be sometimes mis-fire  or<br \/>\nover-shooting  by  some of the conspirators.  Even  if\tsome<br \/>\nsteps  are  resorted  to by one or two of  the\tconspirators<br \/>\nwithout\t the knowledge of the others it will not affect\t the<br \/>\nculpability  of\t those others when they are associated\twith<br \/>\nthe  object of the conspiracy.\tThe significance of criminal<br \/>\nconspiracy  under  S.120A  is brought out pilthily  by\tthis<br \/>\nCourt  in EG Barsay v.\tThe State of Bombay (1962) 2 SCR 195<br \/>\nat p.229 thus:\n<\/p>\n<p>      &#8220;The  gist of the offence is an agreement to break the<br \/>\nlaw.   The  parties to such an agreement will be  guilty  of<br \/>\ncriminal  conspiracy,  though the illegal act agreed  to  be<br \/>\ndone  has not been done.  So too, it is not an ingredient of<br \/>\nthe offence that all the parties should agree to do a single<br \/>\nillegal\t act.  It may comprise the commission of a number of<br \/>\nacts.\tUnder S.43 of the Indian Penal Code, an act would be<br \/>\nillegal\t if it is an offence or if it is prohibited by\tlaw.<br \/>\nUnder  the first charge the accused are charged with  having<br \/>\nconspired  to  do three categories of illegal acts, and\t the<br \/>\nmere fact that all of them could not be convicted separately<br \/>\nin  respect  of\t each of the offences has  no  relevancy  in<br \/>\nconsidering  the question whether the offence of  conspiracy<br \/>\nhas  been committed.  They are all guilty of the offence  of<br \/>\nconspiracy  to\tdo  illegal   acts,  though  for  individual<br \/>\noffences all of them may be liable&#8221;.\n<\/p>\n<p>      We   are\tin  respectful\t agreement  with  the  above<br \/>\nobservations   with  regard  to\t  the  offence\tof  criminal<br \/>\nconspiracy.&#8221;\n<\/p>\n<p>      In a criminal case the onus lies on the prosecution to<br \/>\nprove  affirmatively  that  the\t accused  was  directly\t and<br \/>\npersonally connected with the acts or omissions attributable<br \/>\nto  the\t crime committed by him.  It is settled position  of<br \/>\nlaw  that act or action of one of the accused cannot be used<br \/>\nas  evidence against other.  However, an exception has\tbeen<br \/>\ncarved\tout under Section 10 of the Evidence Act in the case<br \/>\nof  conspiracy.\t To attract the applicability of Section  10<br \/>\nof  the Evidence Act, the Court must have reasonable  ground<br \/>\nto  believe that two or more persons had conspired  together<br \/>\nfor  committing\t an  offence.\tIt is  only  then  that\t the<br \/>\nevidence  of action or statement made by one of the  accused<br \/>\ncould  be used as evidence against the other.  This Court in<br \/>\n<a href=\"\/doc\/667073\/\">Kehar Singh &amp; Ors.  v.\tThe State (Delhi Admn.)<\/a> [AIR 1988 SC<br \/>\n1883]  has held:  &#8220;Section 120A provides for the  definition<br \/>\nof  criminal  conspiracy and it speaks of that when  two  or<br \/>\nmore persons agree to do or cause to be done an act which is<br \/>\nan illegal act and S.120-B provides for the punishment for a<br \/>\ncriminal  conspiracy  and it is interesting to note that  in<br \/>\norder  to prove a conspiracy it has always been felt that it<br \/>\nwas  not  easy\tto  get direct evidence.   It  appears\tthat<br \/>\nconsidering  this  experience about the proof of  conspiracy<br \/>\nthat  S.10 of the Indian Evidence Act was enacted.   Section<br \/>\n10 reads:\n<\/p>\n<p>      &#8220;Things  said  or done by conspirator in reference  to<br \/>\ncommon\tdesign &#8211; when there is reasonable ground to  believe<br \/>\nthat  two or more persons have conspired together to  commit<br \/>\nan  offence  or an actionable wrong, anything said, done  or<br \/>\nwritten\t by  any one of such persons in reference  to  their<br \/>\ncommon\tintention,  after the time when such  intention\t was<br \/>\nfirst  entertained by any one of them, is a relevant fact as<br \/>\nagainst each of the persons believed to be so conspiring, as<br \/>\nwell  for  the\tpurpose\t of proving  the  existence  of\t the<br \/>\nconspiracy  as\tfor  the purpose of showing  that  any\tsuch<br \/>\nperson was a party to it.&#8221;\n<\/p>\n<p>      This  section  mainly could be divided into two:\t the<br \/>\nfirst  part  talks  of where there is reasonable  ground  to<br \/>\nbelieve that two or more persons have conspired to commit an<br \/>\noffence\t or  an actionable wrong, and it is only  when\tthis<br \/>\ncondition precedent is satisfied that the subsequent part of<br \/>\nthe  section comes into operation and it is material to note<br \/>\nthat this part of the Section talks of reasonable grounds to<br \/>\nbelieve that two or more persons have conspired together and<br \/>\nthis evidently has reference to S.120-A where it is provided<br \/>\n&#8220;When two or more persons agree to do, or cause to be done&#8221;.<br \/>\nThis  further  has been safeguarded by providing  a  proviso<br \/>\nthat  no agreement except an agreement to commit an  offence<br \/>\nshall  amount to criminal conspiracy.  It will be  therefore<br \/>\nnecessary  that\t a prima facie case of conspiracy has to  be<br \/>\nestablished  for  application of S.10.\tThe second  part  of<br \/>\nSection\t talks of anything said, done or written by any\t one<br \/>\nof  such persons in reference to the common intention  after<br \/>\nthe  time  when such intention was first entertained by\t any<br \/>\none  of\t them is relevant fact against each of\tthe  persons<br \/>\nbelieved  to  be so conspiring as well for the\tpurpose\t for<br \/>\nproving\t the existence of the conspiracy as for the  purpose<br \/>\nof  showing  that any such person was a party to it.  It  is<br \/>\nclear  that  this  second part permits the use\tof  evidence<br \/>\nwhich  otherwise  could\t not  be used  against\tthe  accused<br \/>\nperson.\t It is well settled that act or action of one of the<br \/>\naccused\t could\tnot be used as evidence against\t the  other.<br \/>\nBut  an\t exception has been carved out in S.10 in  cases  of<br \/>\nconspiracy.   The  second part operates only when the  first<br \/>\npart  of the section is clearly established i.e.  there must<br \/>\nbe  reasonable\tground to believe that two or  more  persons<br \/>\nhave  conspired\t together  in the light of the\tlanguage  of<br \/>\nS.120A.\t  It  is  only\tthen   the  evidence  of  action  or<br \/>\nstatements  made  by  one of the accused, could be  used  as<br \/>\nevidence   against  the\t other.\t  <a href=\"\/doc\/1918767\/\">In  Sardar  Sardul   Singh<br \/>\nCaveeshar  v.  State of Maharashtra<\/a> (1964) 2 SCR 378,  Subba<br \/>\nRao, J.\t (as he then was) analysed the provision of S.10 and<br \/>\nmade the following observations:\n<\/p>\n<p>      &#8220;This section, as the opening words indicate will come<br \/>\ninto  play  when  the  court  is  satisfied  that  there  is<br \/>\nreasonable  ground to believe that two or more persons\thave<br \/>\nconspired  together  to commit an offence or  an  actionable<br \/>\nwrong,\tthat  is  to  say, there should\t be  a\tprima  facie<br \/>\nevidence  that a person was a party to the conspiracy before<br \/>\nhis acts can be used against his co-conspirators.  Once such<br \/>\na  reasonable ground exists, anything said, done or  written<br \/>\nby  one\t of  the  conspirators in reference  to\t the  common<br \/>\nintention,  after  the\tsaid intention was  entertained,  is<br \/>\nrelevant  against  the others, not only for the\t purpose  of<br \/>\nproving the existence of the conspiracy but also for proving<br \/>\nthat  the  other person was a party to it.  The\t evidentiary<br \/>\nvalue  of  the\tsaid acts is limited by\t two  circumstances,<br \/>\nnamely,\t that the acts shall have reference to their  common<br \/>\nintention  and\tin respect of a period after such  intention<br \/>\nwas  entertained  by  any one of them.\t The  expression  in<br \/>\nreference  to  their common intention is very  comprehensive<br \/>\nand  it\t appears to have been designedly used to give  it  a<br \/>\nwider scope than the words &#8220;in furtherance of in the English<br \/>\nlaw;   with the result, anything said, done or written by  a<br \/>\nco-conspirator,\t after\tthe conspiracy was formed,  will  be<br \/>\nevidence  against  the other before he entered the field  of<br \/>\nconspiracy   or\t after\the   left  it.\t Another   important<br \/>\nlimitation  implicit  in  the language is indicated  by\t the<br \/>\nexpressed scope of its relevancy.  Anything so said, done or<br \/>\nwritten\t is  a\trelevant fact only &#8216;as against each  of\t the<br \/>\nperson\tbelieved to be so conspiring as well for the purpose<br \/>\nof  proving  the  existence  of the conspiracy\tas  for\t the<br \/>\npurpose\t of showing that any such person was a party to it&#8217;.<br \/>\nIt can be used only for the purpose of proving the existence<br \/>\nof  the\t conspiracy or that the other person was a party  to<br \/>\nit.   It cannot be said in favour of the other party or\t for<br \/>\nthe purpose of showing that such a person was not a party to<br \/>\nthe  conspiracy.   In short, the Section can be analysed  as<br \/>\nfollows:   (1)\tThere  shall  be   a  prima  facie  evidence<br \/>\naffording  a  reasonable ground for a court to believe\tthat<br \/>\ntwo or more persons are members of a conspiracy;  (2) if the<br \/>\nsaid  condition is fulfilled, anything said, done or written<br \/>\nby  any\t one of them in reference to their common  intention<br \/>\nwill be evidence against the other;  (3) anything said, done<br \/>\nor  written by him should have been said, done or written by<br \/>\nhim  after the intention was formed by any one of them;\t (4)<br \/>\nit  would  also\t be relevant for the  said  purpose  against<br \/>\nanother who entered the conspiracy whether it was said, done<br \/>\nor written before he entered the conspiracy or after he left<br \/>\nit;   (5) it can only be used against a co- conspirator\t and<br \/>\nnot in his favour.&#8221;\n<\/p>\n<p>      It was further held:\n<\/p>\n<p>      &#8220;From an analysis of the section, it will be seen that<br \/>\nSec.10\twill come into play only when the court is satisfied<br \/>\nthat  there is reasonable ground to believe that two or more<br \/>\npersons have conspired together to commit an offence.  There<br \/>\nshould\tbe, in other words, a prima facie evidence that\t the<br \/>\nperson\twas a party to the conspiracy before his acts can be<br \/>\nused  against  his  co-conspirator.  One  such\tprima  facie<br \/>\nevidence  exists,  anything said, done or written by one  of<br \/>\nthe conspirators in reference to the common intention, after<br \/>\nthe  said  intention  was  first  entertained,\tis  relevant<br \/>\nagainst the others.  It is relevant not only for the purpose<br \/>\nof proving the existence of conspiracy, but also for proving<br \/>\nthat  the  other person was a party to it.  It is true\tthat<br \/>\nthe observations of Subba Rao, J.  in Sardul Singh Caveeshar<br \/>\nv.   State of Maharashtra, (1964) 2 SCR 378 lend support  to<br \/>\nthe contention that the admissibility of evidence as between<br \/>\nco-conspirators\t would be liberal than in English Law.\t The<br \/>\nlearned Judge said (at 390):\n<\/p>\n<p>      &#8220;The  evidentiary value of the said acts is limited by<br \/>\ntwo  circumstances,  namely,  that  the\t acts  shall  be  in<br \/>\nreference  to  their  common intention and in respect  of  a<br \/>\nperiod\tafter  such intention was entertained by any one  of<br \/>\nthem.\t The  expression  &#8220;in\treference  to  their  common<br \/>\nintention&#8221; is very comprehensive and it appears to have been<br \/>\ndesignedly  used to give it a wider scope than the words &#8220;in<br \/>\nfurtherance  of &#8221; in English Law;  with the result  anything<br \/>\nsaid,  done  or\t written  by  a\t co-conspirator,  after\t the<br \/>\nconspiracy  was\t formed, will be evidence against the  other<br \/>\nbefore\the entered the field of conspiracy or after he\tleft<br \/>\nit&#8230;.&#8221;\n<\/p>\n<p>      But,  with  respect, the above observations  that\t the<br \/>\nwords  of  Sec.10 have been designedly used to give a  wider<br \/>\nscope than the concept of conspiracy in English Law, may not<br \/>\nbe  accurate.\tThis particular aspect of the law  has\tbeen<br \/>\nconsidered  by\tthe  Privy Council in Mirza Akbar  v.\tKing<br \/>\nEmperor,  AIR  1940 PC 176 at p.180, where Lord Wright\tsaid<br \/>\nthat  there  is no difference in principle in India  Law  in<br \/>\nview Sec.10 of the Evidence Act.\n<\/p>\n<p>      The  decision  of the Privy Council in  Mirza  Akbar&#8217;s<br \/>\ncase  has  been\t referred to with approval in  <a href=\"\/doc\/493883\/\">Sardul  Singh<br \/>\nCaveeshar  v.  State of Bombay,<\/a> 1958 SCR 161 at p.193:\t(AIR<br \/>\n1957 SC 747 AT P.760) where Jagannadhadas, J., said:\n<\/p>\n<p>      &#8220;The  limits  of\tthe  admissibility  of\tevidence  in<br \/>\nconspiracy  case  under S.10 of the Evidence Act  have\tbeen<br \/>\nauthoritatively laid down by the Privy Council in Mirza King<br \/>\nv.   King Emperor (supra).  In that case, their Lordships of<br \/>\nthe Privy Council held that S.10 of the Evidence Act must be<br \/>\nconstrued  in  accordance with the principle that the  thing<br \/>\ndone,  written or spoken was something done in carrying\t out<br \/>\nthe  conspiracy and was receivable as a step in the proof of<br \/>\nthe  conspiracy.  They notice that evidence receivable under<br \/>\nS.10 of the Evidence Act of &#8220;anything said, done or written,<br \/>\nby any one of such persons&#8221; (i.e.  conspirators) must be &#8220;in<br \/>\nreference  to their common intention&#8221;.\tBut their  Lordships<br \/>\nheld  that in the context (notwithstanding the amplitude  of<br \/>\nthe above phrase) the words therein are not capable of being<br \/>\nwidely\tconstrued having regard to the well- known principle<br \/>\nabove enunciated.&#8221;\n<\/p>\n<p>      <a href=\"\/doc\/144689\/\">In  Suresh Chandra Bahri v.  State of Bihar<\/a> [AIR\t1994<br \/>\nSC 2420] this Court reiterated that the essential ingredient<br \/>\nof  criminal  conspiracy  is  the  agreement  to  commit  an<br \/>\noffence.   After referring to the judgments in NMMY Momin v.<br \/>\nState  of  Maharashtra\t[AIR 1971 SC 885] and  State  (Delhi<br \/>\nAdmn)  v.   V.C.  Shukla [AIR 1980 SC 1382] it was  held  in<br \/>\nS.C.  Bahri&#8217;s case (Supra) as under:  &#8220;A cursory look to the<br \/>\nprovisions  contained  in  S.120-A reveal  that\t a  criminal<br \/>\nconspiracy  envisages  an  agreement  between  two  or\tmore<br \/>\npersons\t to commit an illegal act or an act which by  itself<br \/>\nmay  not  be  illegal but the same is done  or\texecuted  by<br \/>\nillegal means.\tThus the essential ingredient of the offence<br \/>\nof  criminal  conspiracy  is  the  agreement  to  commit  an<br \/>\noffence.    In\t a  case  where\t  the\tagreement   is\t for<br \/>\naccomplishment\tof  an\tact which by itself  constitutes  an<br \/>\noffence,  then in that event no overt act is necessary to be<br \/>\nproved\tby the prosecution because in such a fact  situation<br \/>\ncriminal  conspiracy  is  established  by  proving  such  an<br \/>\nagreement.   In other words, where the conspiracy alleged is<br \/>\nwith  regard to commission of a serious crime of the  nature<br \/>\nas  contemplated  in  S.120-B  read  with  the\tprovisio  to<br \/>\nsub-sec.(2)  of S.120-A of the IPC, then in that event\tmere<br \/>\nproof  of an agreement between the accused for commission of<br \/>\nsuch  a\t crime alone is enough to bring about  a  conviction<br \/>\nunder  S.120-B and the proof of any overt act by the accused<br \/>\nor  by\tany  one  of  them  would  not\tbe  necessary.\t The<br \/>\nprovisions  in such a situation do not require that each and<br \/>\nevery  person who is a party to the conspiracy must do\tsome<br \/>\novert\tact  towards  the  fulfilment\tof  the\t object\t  of<br \/>\nconspiracy,  the  essential  ingredient being  an  agreement<br \/>\nbetween\t the  conspirators to commit the crime and if  these<br \/>\nrequirements  and ingredients are established the act  would<br \/>\nfall  within  the  trapping of the provisions  contained  in<br \/>\nS.120-B\t since\tfrom  its very nature a conspiracy  must  be<br \/>\nconceived and hatched in complete secrecy, because otherwise<br \/>\nthe  whole purpose may frustrate and it is common experience<br \/>\nand goes without saying that only in very rare cases one may<br \/>\ncome  across  direct  evidence of a criminal  conspiracy  to<br \/>\ncommit\tany  crime and in most of the cases it is  only\t the<br \/>\ncircumstantial\tevidence  which is available from  which  an<br \/>\ninference  giving  rise\t to the conclusion of  an  agreement<br \/>\nbetween\t two  or  more persons to commit an offence  may  be<br \/>\nlegitimately drawn.&#8221;\n<\/p>\n<p>      It has thus to be established that the accused charged<br \/>\nwith  criminal\tconspiracy had agreed to pursue a course  of<br \/>\nconduct\t which he knew leading to the commission of a  crime<br \/>\nby  one\t or more persons to the agreement, of that  offence.<br \/>\nBesides\t the fact of agreement the necessary mens rea of the<br \/>\ncrime  is  also required to be established.  In the  instant<br \/>\ncase  the hatching of conspiracy between the accused persons<br \/>\nhas  been  sought  to be proved on the ground  that  as\t the<br \/>\ndeceased  had  declined\t to get the pregnancy  aborted,\t the<br \/>\nappellant wanted to get rid of her, suggesting the existence<br \/>\nof circumstance of motive.  Another circumstance relied upon<br \/>\nby  the\t prosecution  is  that both the\t accused  were\tseen<br \/>\ntogether  on  the date of murder near or about the place  of<br \/>\noccurrence.   Some conversation is also stated to have taken<br \/>\nplace between the accused persons, the contents of which are<br \/>\nneither\t disclosed  nor suggested.  Accused No.1  alone\t was<br \/>\nfound  to  have\t boarded the bus in which the  deceased\t was<br \/>\ntravelling  and alighted from it along with her.   Regarding<br \/>\nthe  circumstance  relating to the existence of motive,\t PW9<br \/>\nwho  is\t the  sister  of the  Ms.Jameela  deposed  that\t the<br \/>\ndeceased  had  told her that the pregnancy conceived by\t her<br \/>\nwas  through the appellant.  According to her the  appellant<br \/>\nadmitted  the  paternity of conceived child in\tthe  initial<br \/>\nstage  but denied the paternity attributed to him six months<br \/>\nthereafter.   The  trial  court found that &#8220;in\tthe  answers<br \/>\nelicited  in  the  further cross-examination also  it  would<br \/>\nappear\tthat her version about the first source of knowledge<br \/>\nabout\tthe  pregnancy\tof   Jameela  was  inconsistent\t and<br \/>\nunnatural&#8221;.   Dealing  with her statement, the\ttrial  court<br \/>\nobserved that PW9 had no occasion to meet Jameela as she was<br \/>\nnot  visiting her mother&#8217;s house and also because the second<br \/>\naccused\t had consented for the marriage.  The only  evidence<br \/>\nregarding the appellant being responsible for the conception<br \/>\nof  the child is the testimony of Nabeesa (PW6), the  mother<br \/>\nof the deceased.  She had stated that she came to know about<br \/>\nthe  pregnancy\tof  Jameela only when she tried to  fix\t her<br \/>\nmarriage  with some person and Jameela told her that she was<br \/>\nin  love  with the appellant.  It is not discerned from\t the<br \/>\ntestimony  of PW6 that Jameela had conceived the child\tfrom<br \/>\nthe  appellant.\t  What\tthe  witness stated  was  only\tthat<br \/>\nJameela\t and  the appellant were in love and they knew\teach<br \/>\nother for a period of two years before the death of Jameela.<br \/>\nAccording  to her the marriage between the deceased and\t the<br \/>\nappellant  could  not  be  solemnised as  they\tbelonged  to<br \/>\ndifferent  religions.\tShe never saw the deceased  and\t the<br \/>\nappellant talking as according to her they used to talk only<br \/>\nin her absence.\t The appellant is stated to have visited the<br \/>\nhouse  of  the aforesaid witness on 15.5.1991 and  assaulted<br \/>\nthe  deceased regarding which report Exhibit P-4 was lodged.<br \/>\nAccording to her Jameela was killed while returning from the<br \/>\nhospital  where she had gone for a check up.  Nowhere in her<br \/>\ntestimony Nabeesa (PW6) stated that the appellant wanted the<br \/>\nchild,\tconceived  by Jameela, to be aborted.  There  is  no<br \/>\npositive  evidence proving or suggesting that the  appellant<br \/>\nwas  responsible for the pregnancy of the deceased.  In\t the<br \/>\nabsence\t of evidence regarding the circumstance\t attributing<br \/>\nthe  pregnancy\tof  the deceased to the\t appellant  and\t his<br \/>\ninsistence   for  abortion  of\t the  child,  the  important<br \/>\ncircumstance  of motive cannot be held to have been  proved.<br \/>\nThe  trial  court, therefore, rightly did not rely upon\t the<br \/>\ntestimony  of PW9 Amina with respect to the existence of the<br \/>\nsaid  circumstance.   The testimony of PW18 Meharban who  is<br \/>\nthe  sister-in-law  of\tthe deceased also does\tnot  inspire<br \/>\nconfidence  to link the appellant with the pregnancy of\t the<br \/>\ndeceased.   PW2 who is the neighbour of the deceased  stated<br \/>\nthat she had known about the pregnancy from Jameela herself.<br \/>\nAccording to her the appellant had quarreled with Jameela in<br \/>\nconnection  with  the  pregnancy.   Despite  denial  of\t the<br \/>\nappellant  Jameela was stated to have asserted that she\t did<br \/>\nnot  have  sexual  intercourse with anyone  other  than\t the<br \/>\nappellant.   In\t her cross-examination the witnesses  stated<br \/>\nthat  the appellant never threatened Jameela.  She  admitted<br \/>\nthat  the appellant had apparently told Jameela that he\t was<br \/>\nnot  the  father  of  the child in her\twomb.\tThe  witness<br \/>\nconceded  that\tshe  had  no   direct  knowledge  about\t the<br \/>\nrelationship of the deceased with the appellant.  PW3 who is<br \/>\na  neighbour  and husband of PW2 was declared hostile as  he<br \/>\ndid not support the case of the prosecution.  It was deposed<br \/>\nby  him that he was not aware that Jameela had requested the<br \/>\nappellant  to marry her.  PW2 stated that the appellant\t had<br \/>\ncategorically  stated  that he was not responsible  for\t the<br \/>\npregnancy  as  someone-else  was responsible  for  it.\t The<br \/>\ncourts\tbelow, therefore, were not justified in holding this<br \/>\ncircumstance proved for the existence of criminal conspiracy<br \/>\nto  commit  the\t crime of murder of the\t deceased.   In\t the<br \/>\nabsence\t of  any  evidence  suggesting the  existence  of  a<br \/>\ncircumstance of insistence by the appellant for abortion, an<br \/>\nimportant  link\t in  the chain of  circumstances  attributed<br \/>\nagainst\t him  is missing.  Even otherwise motive  by  itself<br \/>\ncannot\tbe a proof of conspiracy.  <a href=\"\/doc\/826865\/\">In Girja Shankar Misra v.<br \/>\nState  of U.P.<\/a>\t[AIR 1993 SC 2618] though it was found\tthat<br \/>\nthere were serious misunderstanding between the deceased and<br \/>\nthe  appellant\tbecause of the illicit relationship  between<br \/>\nthe  appellant\tand the wife of the deceased, yet the  Court<br \/>\nheld  that despite the fact that the appellant had a motive,<br \/>\nhe  could not be held responsible for hatching a conspiracy.<br \/>\nThe  other important circumstance relied by the\t prosecution<br \/>\nand  believed  both by the trial and the High Court  is\t the<br \/>\npresence  of  the appellant in the company of  Accused\tNo.1<br \/>\nnear  or  about\t the  place of occurrence  on  the  date  of<br \/>\nincident.   It\tis  true  that a number\t of  witnesses\thave<br \/>\ndeposed\t that they had seen both the accused together on the<br \/>\ndate  of occurrence but it is equally true that such meeting<br \/>\nwas  not unusual as admittedly they were working together in<br \/>\nthe  plantation.   Mere\t meeting  would\t by  itself  not  be<br \/>\nsufficient  to infer the existence of a criminal conspiracy.<br \/>\nThere  is  no  suggestion, much less legal evidence  to\t the<br \/>\neffect\tthat  both the accused were so intimate which  would<br \/>\nhave compelled Accused No.1 to agree to be a conspirator for<br \/>\nthe  killing  of  the  deceased\t at  the  instance  of\t the<br \/>\nappellant.   The  Accused  No.1 is also not stated to  be  a<br \/>\nhabitual  criminal.   There is no suggestion of the  accused<br \/>\nNo.1  being  hired for the purpose of killing the  deceased.<br \/>\nRamakrishnan  (PW3)  did  not  support\t the  case  of\t the<br \/>\nprosecution  of\t having\t seen both the accused\tsitting\t and<br \/>\ntalking\t to  each  other  near\tthe bushes  on\tthe  day  of<br \/>\noccurrence.   To  a specific question as to whether  he\t had<br \/>\nseen  any  other person going through the road\ttowards\t the<br \/>\nside  where Accused No.1 had gone, the witness\temphatically<br \/>\nreplied\t in  the negative.  Davis (PW5) stated that  on\t the<br \/>\ndate  of  occurrence  he had seen Accused No.1 at  about  2o<br \/>\nclock  in  the\tafternoon.   In reply to a  question  as  to<br \/>\nwhether he had seen anyone-else going through the road while<br \/>\nAccused No.2 was talking to PW4, the witness replied &#8220;I have<br \/>\nnot  noticed&#8221;.\t Nabeesa  (PW6)\t who is the  mother  of\t the<br \/>\ndeceased  has stated that on the date of occurrence both the<br \/>\naccused\t were sitting near her house on some timber logs  at<br \/>\nabout  2  p.m.\tbut at 2.45 p.m.  she saw only Accused\tNo.1<br \/>\nwashing\t his knife near the stream which is on the  southern<br \/>\nside of her house.  What happened between 2.00 p.m.  to 2.45<br \/>\np.m.  is not known to the witness.  Her deposition is mainly<br \/>\nwith  respect  to the relationship of the deceased with\t the<br \/>\nappellant.  Jose (PW7) stated in the trial court that on the<br \/>\ndate  of  occurrence at about 2.45 p.m., the  appellant\t had<br \/>\ncalled\thim.  He told him to come after some time.  He\twent<br \/>\nthere  and talked to the appellant, George (PW8) and Mohanan<br \/>\n(PW10).\t  He saw Jameela, deceased getting down from the bus<br \/>\nat  about 2.30 p.m.  She had gone to the house of her sister<br \/>\nAmina (PW9).  He did not see Accused No.1 with Accused No.2.<br \/>\nHe  saw only the appellant, PW8, PW10 and some other people.<br \/>\nGeorge\tPW8  stated  that he saw appellant on  the  date  of<br \/>\noccurrence  at\tabout 2.30 p.m.\t at the gate of\t his  house.<br \/>\nBoth  the witness and the appellant had conversation on\t the<br \/>\nsteps  of the house of the witness.  Appellant was there for<br \/>\nabout  half  an\t hour.\t This statement of  PW8\t belies\t the<br \/>\naverments  of  other witnesses that the appellant  committed<br \/>\nthe crime in conspiracy with Accused No.1 at about 2.45 p.m.<br \/>\nAmina (PW9), the sister of the deceeased stated that she had<br \/>\nseen  both  the accused together sitting on the\t timber\t log<br \/>\nnear  the road.\t She did not see appellant accompanying\t the<br \/>\naccused\t No.1 thereafter.  Devasi (PW11) Stated that on\t the<br \/>\nday  of occurrence both the accused had come to his shop  at<br \/>\nabout  1  p.m.\t and each had one plate\t tapioca  and  meat.<br \/>\nMeharban  (PW18) stated &#8220;I saw Accused No.2 at 2.30 p.m.  at<br \/>\nthe  timber  log.   I did not see accused No.1.\t I  saw\t A-2<br \/>\ncalling\t PW-7  Jose.   Then I saw he was talking  with\tPW-8<br \/>\nGeorge.\t  That\twas about 2.45 in the afternoon.  I saw\t A-1<br \/>\nfollowing Jameela when she alighted the bus.  Then I saw A-1<br \/>\nswiftly\t walking  from eastern side to western side&#8221;.\tThis<br \/>\nstatement  of the prosecution witness does not suggest, even<br \/>\nby  implication\t that both the accused were together on\t the<br \/>\nday  of occurrence.  The statement of the witnesses  noticed<br \/>\nhereinabove may probabilise the presence of both the accused<br \/>\ntogether  but  does  not prove beyond doubt that  they\twere<br \/>\ntogether  near\tthe road at the place of occurrence  on\t the<br \/>\nfateful\t day.\tAssuming  they\t were  together,  would\t not<br \/>\nnecessarily  lead  to  the conclusion that they had  met  in<br \/>\nfurtherance  of\t the conspiracy to murder the deceased.\t  We<br \/>\nare  of the opinion that the prosecution did not succeed  in<br \/>\nproving\t  this\t circumstance\tbeyond\t reasonable   doubt.<br \/>\nConviction of the appellant on the basis of the existence of<br \/>\nthe alleged circumstance cannot be justified.  The appellant<br \/>\nis  entitled  to the benefit of the reasonable\tdoubt.\t The<br \/>\nHigh  Court  was, therefore, not justified to hold that\t the<br \/>\naccused\t persons had been seen together before and after the<br \/>\nincident  when Jameela boarded the bus for the Hospital\t and<br \/>\nalighted  at  the bus stop around 2.30 p.m.  The High  Court<br \/>\nwas  also not justified to hold that there was no particular<br \/>\nreason\tfor  them  to be together except as  stated  by\t the<br \/>\nprosecution.   It has come in the prosecution evidence\tthat<br \/>\nthe  witnesses\tand the accused were plantation workers\t and<br \/>\nwould  usually\tmeet  each  other.  In the  absence  of\t the<br \/>\nexistence  of  circumstances  suggesting   the\thatching  of<br \/>\ncriminal  conspiracy,  we  are\tof   the  opinion  that\t the<br \/>\nappellant  could not have been convicted and sentenced\twith<br \/>\nthe  aid  of  Section 120B or Section 109 IPC.\tNo  fact  or<br \/>\ncircumstance  with  respect to the abetment  attracting\t the<br \/>\napplicability  of  Section 109 IPF has been brought  to\t our<br \/>\nnotice.\t To prove the charge of abetment, the prosecution is<br \/>\nrequired  to  prove that the abettor had instigated for\t the<br \/>\ndoing  of  a  particular thing or engaged with one  or\tmore<br \/>\nother  person or persons in any conspiracy for the doing  of<br \/>\nthat  thing  or\t intentionally aided by an  act\t of  illegal<br \/>\nomission,  doing  of that thing.  The prosecution  miserably<br \/>\nfailed\tto prove the existence of any of the ingredients  of<br \/>\nSection\t  107  IPC.   Learned\tcounsel\t appearing  for\t the<br \/>\nrespondent-State  submitted that after the dismissal of\t the<br \/>\nappeal of Accused No.1, the charge of conspiracy against the<br \/>\nappellant  should  be deemed proved.  We are  not  impressed<br \/>\nwith such a submission particularly when the prosecution had<br \/>\nalleged\t that  the said accused had committed the  crime  of<br \/>\nmurder\tby  stabbing  the deceased with his  knife.   Merely<br \/>\nbecause\t  the  charge  of   conspiracy\tfails  against\t the<br \/>\nappellant,  it\tcannot\tbe  said  that\tthe  conviction\t and<br \/>\nsentence  awarded  to  the Accused No.1 was  illegal.\tThis<br \/>\nCourt in Babu Singh v.\tState of Punjab [JT 1996 (9) SC 753]<br \/>\nheld  that in a case where two accused were alleged to\thave<br \/>\nconspired and killed their younger brother, the acquittal of<br \/>\none  would  not entitle the other accused to  be  acquitted.<br \/>\nThe  Court  observed:  &#8220;Consequently, it was held  that\t the<br \/>\nprosecution  failed  to establish the charge of\t conspiracy.<br \/>\nBut  merely  because  the charge of conspiracy\tfailed,\t the<br \/>\nprosecution case so far as the actual assault being given by<br \/>\nappellant Babu Singh cannot be ipso facto thrown away.&#8221;\n<\/p>\n<p>      In  view\tof  what has been held hereinabove,  we\t are<br \/>\ninclined  to  hold  that the prosecution did not  prove\t the<br \/>\ncharge\tof  conspiracy\tagainst\t the  appellant\t beyond\t all<br \/>\nreasonable  doubt.  We are of the opinion that the appellant<br \/>\nis  entitled to the benefit of reasonable doubt existing  in<br \/>\nthe  case.   The  appeal  is  accordingly  allowed  and\t the<br \/>\nimpugned judgment of the trial as well as of the High Court,<br \/>\nin  so far as it relates to the appellant, is set aside\t and<br \/>\nthe  appellant is acquitted of the charges for which he\t was<br \/>\nconvicted  and\tsentenced.   The appellant shall be  set  at<br \/>\nliberty forthwith unless required in some other case.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Saju vs State Of Kerala on 15 November, 2000 Author: Sethi Bench: K.T.Thomas, R.P.Sethi 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: L&#8230;..I&#8230;&#8230;&#8230;T&#8230;&#8230;.T&#8230;&#8230;.T&#8230;&#8230;.T&#8230;&#8230;.T&#8230;&#8230;.T..J SETHI, J. Ms.Jameela a young muslim woman was found killed on 18.9.1991 by Baiju, allegedly [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-118905","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Saju vs State Of Kerala on 15 November, 2000 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/saju-vs-state-of-kerala-on-15-november-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Saju vs State Of Kerala on 15 November, 2000 - Free Judgements of Supreme Court &amp; 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