{"id":179258,"date":"2002-09-03T00:00:00","date_gmt":"2002-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohd-khalid-vs-state-of-west-bengal-on-3-september-2002"},"modified":"2017-04-16T03:43:16","modified_gmt":"2017-04-15T22:13:16","slug":"mohd-khalid-vs-state-of-west-bengal-on-3-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohd-khalid-vs-state-of-west-bengal-on-3-september-2002","title":{"rendered":"Mohd. Khalid vs State Of West Bengal on 3 September, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohd. Khalid vs State Of West Bengal on 3 September, 2002<\/div>\n
Bench: B.N. Kirpal Cji., K.G. Balakrishnan, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  1114 of 2001\n\nPETITIONER:\nMOHD. KHALID\n\nRESPONDENT:\nSTATE OF WEST BENGAL\n\nDATE OF JUDGMENT: 03\/09\/2002\n\nBENCH:\nB.N. KIRPAL CJI.& K.G. BALAKRISHNAN & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2002 Supp(2) SCR 31<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
ARIJIT PASAYAT, J. No religion propagates terrorism or hatred. Love for all
\nis the basic foundation on which almost all religions are founded.
\nUnfortunately, some fanatics who have distorted views of religion spread
\nmessages of terror and hatred. They do not understand and realize what
\namount of damage they do to the society. Sometimes people belonging to
\ntheir community or religion also become victims. As a result of these
\nfanatic acts of some misguided people, innocent lives are lost, distrust in
\nthe minds of communities replaces love and affection for others, The
\ndevastating effect of such dastardly acts is the matrix on which the
\npresent case to which these appeals relate rests. On 16th March, 1993, just
\nbefore the stroke of mid-night, people in and around B.B. Ganguly Street in
\nthe Bow Bazar Area of Calcutta heard deafening sounds emanating from
\nthundering explosions which resulted in total demolition of a building and
\npartial demolition of two other adjacent buildings situated at 267,266 and
\n268 A, B.B. Ganguly Street. Large number of people were trapped in and
\nburied under the demolished buildings. It was indeed a very ghastly sight
\nand large number of people died because of the explosions impact and\/or on
\naccount of the falling debris. Human limbs were found scattered all around
\nthe area. Those who survived tried to rescue the unfortunate victims.
\nPolice officers arrived at the spot immediately. The first information
\nreport was lodged at Bow Bazar Police Station for alleged commission of
\noffences punishable under Section 120B, 436, 302, 307 326 of the Indian
\npenal Code, I860 (in short ‘the IPC) and Sections 3 and 5 of the Explosive
\nSubstances Act, 1908 (in short ‘The Explosive Act’).\n<\/p>\n
Considering the seriousness and gravity of the incident, the Commissioner
\nof Police set up a special investigating team. On investigation 8 persons
\nincluding the six appellants were found linked with the commission of
\noffences. Arrests were made. While rescue operations were on there was
\nfurther explosion on 18.3.1993. The exploded bomb was handed over to the
\npolice officer after its examination on the spot by a Military Officer.
\nMeanwhile, the pay loader picked up a gunny bag containing 22 live bombs.
\nAfterwards. They were defused after examination. Certain materials were
\nseized by the investigating team from the site of the occurrence and on
\nexamination, it was found that nitro-glycerin explosives were involved in
\nthe explosion. Large number of witnesses were examined.\n<\/p>\n
Two of the accused persons, Pannalal Jaysoara (accused-appellant in
\nCriminal Appeal No. 299\/2002) and Mohd. Gulzar (accused-appellant in
\nCriminal Appeal No. 494\/2002) were arrested on 29.3.1993 and 13.5.1993
\nrespectively. As they wanted to make their confessions, those were to be
\nrecorded before the Judicial Magistrate, accordingly, their confessional
\nstatements were recorded by the magistrates (PWs.81 and 82). Some of the
\naccused persons were also identified by witnesses in the Test
\nIdentification Parade. On 11.6.1993. the Commissioner of Police on
\nexamination of the case diary, statement of witnesses, reports of the
\nexperts and confessional statements came to the conclusion that provisions
\nof Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short
\n‘The TADA Act’) were applicable. Accordingly, sanction, was accorded for
\nprosecution of the accused persons under the said statute. Charge sheet was
\nsubmitted on 14.6.1993.\n<\/p>\n
Accused Persons filed a writ application before the Calcutta High Court
\nchallenging the validity of the sanction and the order whereby the
\nDesignated Court took cognizance of the offences under the TADA Act. The
\nHigh Court quashed the order of sanction and taking of cognizance. The
\nmatter was challenged before this Court by the prosecution. The appeal was
\nallowed and the Designated Court was directed to proceed with the case in
\naccordance with law with utmost expedition. [See: State of West Bengal and
\nAnr. v. Mohd. Khalid and Ors, etc. [1995] 1 SCC 684. The Designated Court
\nframed charges under Section 120B, 436\/34, 302\/34, IPC, Section 3 and 5 of
\nthe Explosive Act and under Section 3 (2) (1) and 3(3) of the TADA Act. As
\nthe accused persons facing trial pleaded innocence, trial was conducted.\n<\/p>\n
The case of the prosecution, in short, is that the accused persons
\nconspired and agreed to manufacture bombs illegally by using explosives to
\nstrike terror in the people, particularly, in the mind of the people living
\nin Bow Bazar and its adjacent areas to adversely affect communal harmony
\namongst members of Hindu and Muslim communities Pursuant to this criminal
\nconspiracy and in pursuance of the common intention, they caused complete\/
\npartial destruction of properties by using the explosive substances. They
\ncommitted murders knowing fully well that illegal manufacture of bombs by
\nexplosive substances in most likelihood would result in deaths or bodily
\ninjuries, by causing explosion. In causing explosion by unlawful and
\nmalicious user of explosive substances which was likely to endanger life or
\nto cause serious injury to properties, they committed offences in terms of
\nSections 3 and 5 of the Explosive Act. The fact that they possessed
\nexplosive substances gave rise to a reasonable suspicion that such
\npossession and control of the explosive substances were not for lawful
\nobject. Provisions of the TADA Act were applied on the allegations that
\npursuant to the conspiracy and in pursuance of the common intention they
\nprepared bombs with huge quantities of explosive substances and highly
\nexplosive materials with intent to strike terror in the mind of the people
\nadversely affecting the communal harmony amongst the people belonging to
\nHindu and Muslim religions. Their terrorist activities resulted in the
\ndeath of 69 persons, injuries to a large number of persons and destruction
\nand damage to properties. As a result of these acts commission of terrorist
\nacts was facilitated.\n<\/p>\n
Out of the 165 witnesses examined, three witnesses were picked up as star
\nwitnesses to prove the conspiracy and the connected acts. They are PW. 40
\n(Md. Sabir @ Natu), PW. 67 (Santosh Hazra) and PW 68 (Kristin Chow @
\nKittu), By a detailed judgment ,the Designated Court found the accused
\nappellants guilty of offences punishable under Section 120 B IPC, Sections
\n3 and 5 of the Explosive Act and Section 3(2)(1) and 3(3) of the TADA Act
\nread with Section 34 IPC. However, they were found not guilty of the
\noffences in terms of Sections 302 and 436 read with Section 34 IPC. After
\nhearing on the question of sentence, the accused appellants were sentenced
\nto undergo rigorous imprisonment for life and to pay a fine of Rs. 3000
\neach for commission of offences under Section 3(2)(1) of the TADA Act read
\nwith Section 34 IPC, to undergo rigorous imprisonment for five years and to
\npay a fine of Rs. 500 each for commission of offence under Section 3 (3) of
\nthe TADA Act. They were further sentenced to undergo rigorous imprisonment
\nfor 10 years and to pay a fine of Rs. 1,000 each for commission of offence
\nunder Section 3 of the Explosive Act and to suffer an imprisonment for one
\nyear and to pay a fine of Rs. 300 each for commission of offence under
\nSection 5 of the Explosive Act. Each of them were also sentenced to
\nimprisonment for life and to pay a fine of Rs. 3000 each for commission of
\noffence under Section 120 B of IPC.\n<\/p>\n
These appeals relate to the common judgment of the Designated Court. While
\nthe accused appellants have questioned the legality of the conviction and
\nsentences imposed, the State has questioned the propriety of acquittal in
\nrespect of the offences in terms of Sections 302\/34 and 436\/34 IPC. Learned
\ncounsel for the accused appellants have submitted, inter alia, that the so-
\ncalled star witnesses are persons with doubtful antecedents. They were
\nrowdy elements who were under the thumb of police officers and the
\npossibility of their having deposed falsely at the behest of police
\nofficers cannot be ruled out, and this is more probable. Referring to the
\nevidence of PWs 40,67 and 68, it was submitted that their evidence suffers
\nfrom innumerable fallacies. PW-40 claimed to have heard the accused-
\nappellant, Rashid asking the accused-appellant, Pannalal Joysorara about
\nthe preparation of bombs. He was the witness who was available immediately
\nafter the incident. But his statement was recorded two days after without
\nany explanation being offered as to why he was examined two days after.
\nSimilarly, PWs. 67 and 68 , were also examined after two days. In Court,
\nthey made embellished and highly ornamented statements. It was pointed out
\nthat evidenced of PW-67, in particular, is full of holes. According to his
\nown testimony, he was only connected with satta games. It was, therefore,
\nhighly improbable that he was allowed to go up and notice all those
\nmaterials which were lying in the rooms and the activities being carried
\nout, It was highly improbable that nobody stopped him. Many independent
\nwitnesses were not examined though their presence is accepted by the
\nprosecution. A grievance is made that some of the persons who were
\navailable to be examined have not been so done. Particular reference has
\nbeen made to Nausad and Osman. It is stated that the prosecution case is
\nthat Nausad was the owner of one of the premises and PW-68 told Osman about
\nthe conspiracy. Non-examination of these material and independent witnesses
\nrendered the prosecution version suspect. There was no reliable evidence of
\nconspiracy. There was no design to commit any act even if it is accepted
\nthat there was any explosion. That was an accident. In fact, no importance
\ncan be attached to the so-called judicial confessions because two accused
\nperson who allegedly made the confession had made retraction subsequently
\non 3.2.1995. They were terrorized, threatened and were compelled to make
\nthe confession. Even if, according to them, the prosecution case is
\naccepted in its toto, it only proves that the Muslims were trying to
\nprotect themselves in the event of a possible attack of Hindus on them. In
\nthe bomb blast which took place in Bombay a few months earlier, the police
\nwas totally ineffective and could not save the lives of number of Muslims
\nand were silent onlookers. That spread message of fear in the mind of
\nMuslims and as the prosecution version itself goes to show, they were
\npreparing to protect themselves as a matter of exercise of their right of
\nprevent defence, to protect defence, in the most likely event of attack by
\nthe Hindus on them. This according to them rules out application of the
\nTADA Act. They were not the aggressors and this preparations to protect
\ntheir rights and properties in the event of an attack was not to spread a
\nterror or to cause any unlawful act but was an act intended to be used as a
\nshield and not a weapon. Further, Section 3 of the Explosive Act has no
\napplication because there was no material to show that the accused persons
\nhad caused explosion. It was pointed out that several persons who had lost
\ntheir lives in the explosion were arrayed as accused persons. Even if, they
\ncaused the explosion, they could not save their own lives and it cannot be
\nsaid that the accused appellants were responsible for the explosion. Coming
\nto the charge of conspiracy, it was submitted that the statements recorded
\nunder Section 164 of the Code of Criminal Procedure, 1973 (in short ‘the
\nCode’) of the two accused persons cannot be used against others unless the
\nprescriptions of Section 30 of the Indian Evidence Act, 1872 (in short ‘the
\nEvidence Act’) were fulfilled. According to them, confession of a co-
\naccused was not a substantive piece of evidence. It had a limited role to
\nplay. In case other evidence was convincing and credible, as an additional
\nfactor, confession of a co-accused for limited purpose can be used in
\nevidence. The present was not a case of that nature. Finally, it was
\nsubmitted that accused appellants are in custody since 1993 and a liberal
\nview on sentence should be taken.\n<\/p>\n
In response, Mr. K.T.S. Tulsi, learned senior counsel appearing for the
\nprosecution submitted that the apparent intention of the accused appellants
\nwas to terrorise the people. Large quantity of the explosives and bombs
\nrecovered clearly gives a lie to the plea that self-protection was the
\nobject. Seen in the context of the motive it is clear that the intention
\nwas to terrorise a section of the people and it is not a case that the
\naccused appellants wanted to exercise their right of private defence for
\nthemselves. The real object and that motive were to use it for spreading
\ncommunal disharmony under the cover of self-protection and to terrorise
\npeople. So far as the confession in terms of Section 164 of the Code is
\nconcerned, it was submitted that the statements were recorded after making
\nthe confessors aware that they may be utilized in evidence against them.
\nThe so-called retraction was afterthought. The mere fact that the witnesses
\nwere examined after two days does not per se render their evidence suspect.
\nIt has to be noted that there was total chaos after the explosions.
\nEverywhere bodies were lying scattered. There was no information as to how
\nmany were buried under the debris. The first attempt was to save lives of
\npeople rendering immediate medical assistance. At that point of time,
\nrecording of evidence was not the first priority. In fact, after the
\nspecial team was constituted, the process of recording statements was
\nstarted on 18.3.1993 and on that date the statements of material witnesses
\nwere recorded, With reference of Section 15 of the TADA Act, it is
\nsubmitted that though the statements recorded by the Magistrate was not
\nstrictly in line with Section 15 of the TADA Act, yet it deserves a greater
\ndegree of acceptability under the said Act. It cannot be conceived that the
\nconfession recorded by a Police Officer would stand on a better footing
\nthan one recorded by the Judicial Magistrate. Further, it was submitted
\nthat the confessional statements recorded clearly come within the ambit of
\nSection 10 of the Evidence Act and, therefore, no further corroboration was
\nnecessary and to that extent Section 30 may not be applicable. Even
\notherwise, according to him, there was ample material to connect the
\naccused appellants with the crime and the confessional statements were the
\nlast straw.\n<\/p>\n
Responding to the plea that Section 3 of the Explosive Act had no
\napplication. It was submitted that the possession of the explosives has
\nbeen established, the purpose for which they were stored and the bombs were
\nmanufactured has been established. Even if theoretically it is accepted
\nthat the accused appellants did not cause the explosion, but the others did
\nat their behest. Their constructive liability cannot be wiped out. They
\nwere the perpetrators of the crine being the brain behind it. Even if, for
\nthe sake of arguments it is accepted that the final touch was given by
\nsomebody else, may be the deceased accused persons, as they were the brains
\nbehind the whole show, their liability cannot be ignored and ruled out. In
\nany event, according to him, they have been charged with Section 3 of the
\nExplosive Act and could be convicted under Section 4 of the said Act
\nbecause the latter constitutes a lesser offence.\n<\/p>\n
By ways of rejoinder, it was submitted by learned counsel for the-accused-
\nappellants that Section 10 of the Evidence Act has no application, because
\nafter the act flowing from the conspiracy is over, the relevance of any
\nstatement of relation to the conspiracy is of no consequence. After the
\nexplosion even if the same was the result of conspiracy as alleged, any
\nconfessional statement recorded under Section 164 of the Code cannot come
\nwithin the ambit of Section 10 of the Evidence Act.\n<\/p>\n
First, we shall deal with the plea regarding acceptability of the evidence.
\nIt is to be seen as to what is the evidence of PWs 40, 67 and 68 and how
\nthey establish prosecution case. PW-40 had deposed about presence of
\nMurtaza Bhai, Gulzar Bhai, Khalid Bhai, Ukil Tenial, Khursid and Hansu
\nwhile they were coming inside Satta Gali carrying two loaded gunny bags.
\nThereafter, they went upstairs of 267 B.B. Ganguly Street. PW-40 followed
\nthem up. He noticed the aforesaid persons mixing the ingredients of bombs
\nand also manufacturing bombs. He found two drums, few gunny bags and small
\ncontainers lying there. Murtaza, Gulzar and Khalid were shifting and
\nstraining the explosive materials after taking it and from the gunny bags.
\nHis nose and eyes got irritated when the process was going on. Therefore,
\nhe came down. Around 10 to 10.30 p.m. he saw Rashid, Aziz Zakrin and Lalu
\ncoming inside the Satta Gali with an old man wearing spectacles (identified
\nas accused-appellant Panalal Jaysoara). While moving up the stairs to the
\nupper floor, Rashid asked the old man to prepare bombs with the materials
\nbrought by him. Criticism was levelled by learned counsel for accused-
\nappellant that the entire conversation alleged to have taken place was
\ndisclose by PW40 during investigation. On verification of records, it
\nappears that though the exact words of the conversation were not stated, in
\nsubstance the same idea was conveyed. PWs 67 and 68 have stated about plan
\nof and preparation for manufacture of bombs. Their statement was to the
\neffect that on 16.3.1993 at about 11.00 p.m. they went to meet Rashid Khan
\nto ventilate their grievance against some of the pencillors disturbing the
\ntranquility of the locality. PW-67 has deposed that Rashid was standing
\nalone in front of the Satta office. As he and PW-68 were reporting the
\nmatter to Rashid, an old man wearing spectacles (identified as accused
\nPannalal Jaysoara) and Osman came out of Satta gali. The old man reported
\nto Rashid that it would take whole night to prepare bombs by using the
\nmixture. On being asked as to what would be done with the bombs, Rashid
\nreplied that large number of bombs were required bombs were required
\nbecause of the riot at Bombay between Hindus and Muslims. Statement of
\nPW-68 is to the similar effect that on 16.3.1993 around 11.00 p.m. accused-
\nappellant Rashid intimated an old man (identified as accused-appellant
\nPannalal Jaysoara) that preparation of large number of bombs was required
\nto be used in the event Hindus attacked the Muslims, and it was necessary
\nin view of riots in Bombay . PWs 67 and 68 belonged to the locality and
\nwere acquainted with Rashid Khan. Their near relatives were staying in
\nlocality. It is on record that some relatives of PW-68 have lost their
\nlives in the incident. Confidential statement of accused-appellant.
\nPannalal Jaysoara was to the effect that he had asked accused-appellant
\nRashid as to the urgency for preparing large number of bombs. His reply was
\nthat he took the decision of preparing bombs so that Muslims could fight in
\nthe possible riot. In the test identification parade PWs 40, 67 and 68
\nidentified accused-appellant Pannala Jaysoara on 15.4.1993. Confessional
\nstatement of accused-appellant Gulzar is relevant, He stated that Rashid
\nhad reminded them that many Muslims had been killed in the riot at Bombay
\nand Government did not do anything for the Muslims. If there is a riot,
\nmany Muslims may die as the Government may not do anything. Therefore, he
\ntook the decision of preparing large quantity of explosives and bombs. PW
\n67 has deposed that accused-appellant Rashid directed preparation of large
\nnumber of bombs overnight. Presence of the accused persons in and around
\nthe place of occurrence has been amply established by the evidence of PWs
\n40,67 and 68, as well the confessional statements of Pannalal and Gulzar.\n<\/p>\n
In the case at hand , the evidence of PWs. 40,67 and 68 even after the
\nclose scrutiny cannot be termed to be unreliable. Merely because they were
\nthe persons with no fixed avocation, the very fact that they were regular
\nvisitors to the place of occurrence described as ‘Satta Gali’ makes their
\npresence nothing but natural. Additionally, we find that relatives of PW-68
\nhave lost lives. Mere delay in examination of the witnesses for a few days
\ncannot in all cases be termed to be fatal so far as the prosecution is
\nconcerned. There may be several reasons. When the delay is explained,
\nwhatever be the length of the delay, the Court can act on the testimony of
\nthe witness if it is found to be cogent and credible. In the case at hand,
\nas has been rightly pointed out by the learned counsel for the respondents,
\nthe first priority was rendering assistance to those who had suffered
\ninjuries and were lying under the debris of the demolished buildings. The
\nmagnitude of the incident can be well judged from the fact that a total
\nbuilding collapsed and two other buildings were demolished to a substantial
\nextent, 69 persons lost their lives and large number of persons were
\ninjured. Therefore, statement of PW-68 that he was busy in attending to the
\ninjured and collecting dead bodies till 18.3.1993 cannot be said to be
\nimprobable. Though, an attempt has been made to show that there is no truth
\nin his statement that he had carried the injured persons to the hospital by
\nmaking reference to certain noting in the medical reports to the effect
\nthat unknown person brought the injured to the hospital, that is really of
\nno consequence. When large number of persons were being brought to the
\nhospital, the foremost duty of the doctors and other members of the staff
\nwas to provide immediate treatment and not to go about collecting
\ninformation as to who had brought the injured to the hospital for
\ntreatment. That would be contrary to the normal human conduct. Looked at
\nfrom any angle, the evidence of PWs. 40, 67 and 68 cannot be said to be
\nsuffering from any infirmity. Their statements along with the confessional
\nstatements of the co-accused and a definite assurance to the prosecution
\nversion.\n<\/p>\n
Next comes the accused-appellants’ plea relating to non-examination of
\nwitnesses.\n<\/p>\n
Normally, the prosecution’s duty is to examine all the eyewitnesses
\nselection of whom has to be made with due care, honestly and fairly. The
\nwitnesses have to be selected with a view not to suppress any honest
\nopinion, and due care has to be taken that in selection of witnesses, no
\nadverse inference is drawn against the prosecution. However, no general
\nrule can be laid down that each and every witness has to be examined even
\nthough his testimony may or may not be material. The most important factor
\nfor the prosecution being that those witnesses strengthening the case of
\nthe prosecution have to be examined, the prosecution can pick and choose
\nthe witnesses who are considered to be relevant and material for the
\npurpose of unfolding the case of the prosecution. It is not the quantity
\nbut the quality of the evidence that is important. In the case at hand, if
\nthe prosecution felt that its case has been well established though the
\nwitnesses examined, it cannot be said that non-examination of some persons
\nrendered its version vulnerable.\n<\/p>\n
As was observed by this Court in Habeeb Mohammad v. State of Hyderabad, AIR<\/a>
\n(1954) SC 51 prosecution is not bound to call a witness about whom there is
\na reasonable ground for believing that he will not speak the truth.\n<\/p>\n
It has not been shown as to how the examination of persons like Nausad and
\nOsman would have thrown any light on the issues involved. Whether Usman was
\nthe owner of the house or not has no significance when the prosecution has
\nestablished the conspiracy angle and preparation of bombs by credible
\nevidence. Similarly, Osman was the person to whom one witness is stated to
\nhave told about the conspiracy angle. Since that witness has been held to
\nbe reliable, non-examination of Osmana is really of no consequence. A
\nreference was made to some persons who were parties to the Test
\nIdentification Parade. It is pointed out that some of them did not identify
\nall the accused persons. Here again, the non-examination of these persons
\ncannot be held to be of any consequence. Those persons who have identified
\nthe accused persons knew them earlier. Therefore, even if some persons not
\nexamined did not identify all the accused persons that does not in any way
\naffect the credibility of the witnesses who knew them, have identified them
\nand deposed about the conspiracy and the preparation of combs. Above being
\nthe position, no adverse inference can be drawn.\n<\/p>\n
It would be appropriate to deal with the question of conspiracy. Section
\n120B of IPC is the provision which provides for punishment for criminal
\nconspiracy. Definition of ‘criminal conspiracy’ given in Section 120A reads
\nas follows:\n<\/p>\n
“120A-When two or more persons agree to do, or cause to be done,-\n<\/p>\n
(1)  all illegal act, or<\/p>\n
(2) an act which is not illegal by illegal means, such an agreement is
\ndesignated a criminal conspiracy;\n<\/p>\n
Provided that no agreement except an agreement to commit an offence shall
\namount to a criminal conspiracy unless some act besides the agreement is
\ndone by one or more parties to such agreement in pursuance thereof.’<\/p>\n
The elements of a criminal conspiracy have been stated to be: (a) an object
\nto be accomplished, (b) a plan or scheme embodying means to accomplish that
\nobject, (c) an agreement or understanding between two or more of the
\naccused persons whereby, they become definitely committed to co-operate for
\nthe accomplishment of the object by the means embodied in the agreement, or
\nby any effectual means, (d) in the jurisdiction where the statute required
\nan overt act. The essence of a criminal conspiracy is the unlawful
\ncombination and ordinarily the offence is complete when the combination is
\nframed. From this, it necessarily follows that unless the statute so
\nrequires, no overt act need be done in furtherance of the conspiracy, and
\nthat the object of the combination need not be accomplished, in order to
\nconstitute an indictable offence. Law making conspiracy a crime, is
\ndesigned to curb immoderate power to do mischief which is gained by a
\ncombination of the means. The encouragement and support which co-
\nconspirators give to one another rendering enterprises possible which, if
\nleft to individual effort, would have been impossible, furnish the ground
\nfor visiting conspirators and abettors with condign punishment. The
\nconspiracy is held to be continued and renewed as to all its members
\nwherever and whenever any member of the conspiracy acts in furtherance of
\nthe common design. (See: American Jurisprudence Vol. II Sec. 23, p. 559).
\nFor an offence punishable under section 120-B, prosecution need not
\nnecessarily prove that the perpetrators expressly agree to do or cause to
\nbe done illegal act; the agreement may be proved by necessary implication.
\nOffence of criminal conspiracy has its foundation in an agreement to commit
\nan offence. A conspiracy consists not merely in the intention of two or
\nmore, but in the agreement of two or more to do an unlawful act by unlawful
\nmeans. So long as such a design rests in intention only, it is not
\nindictable. When two agree to carry it into effect, the very plot is an act
\nin itself, and an act of each of the parties, promise against promise,
\nactus contra actum, capable of being enforced, if lawful, punishable if for
\na criminal object or for use of criminal means.\n<\/p>\n
No doubt in the case of conspiracy there cannot be any direct evidence. The
\ningredients of offence are that there should be an agreement between
\npersons who are alleged to conspire and the said agreement should be for
\ndoing an illegal act or for doing illegal means an act which itself may not
\nbe illegal, Therefore, the essence of criminal conspiracy is an agreement
\nto do an illegal act and such an agreement can be proved either by direct
\nevidence or by circumstantial evidence or by both, and it is a matter of
\ncommon experience that direct evidence to prove conspiracy is rarely
\navailable. Therefore, the circumstances proved before, during and after the
\noccurrence have to be considered to decide about the complicity of the
\naccused.\n<\/p>\n
In Halsbury’s Laws of England (vide 4th Ed. Vol.11, page 44 page 58), the
\nEnglish Law as to conspiracy has been stated thus:\n<\/p>\n
“Conspiracy consists in the agreement of two or more persons to do an
\nunlawful act, or to do a lawful act by unlawful means. It is an indictable
\noffence at common law, the punishment for which is imprisonment or fine or
\nboth in thee discretion of the Court.\n<\/p>\n
The essence of the offence of conspiracy is the fact of combination by
\nagreement. The agreement may be express or implied, or in part express and
\nin part implied. The conspiracy arises and the offence is committed as soon
\nas the agreement is made, and the offence continues to be committed so long
\nas the combination persists, that is until the conspiratorial agreement is
\nterminated by completion of its performance or by abandonment or
\nfrustration or however, it may be. The actus rues in a conspiracy is the
\nagreement to execute the illegal conduct, not the execution of it. It is
\nnot enough that two or more persons pursued the same unlawful object at the
\nsame time or in the same place, it is necessary to show a meeting of minds,
\na consensus to effect an unlawful purpose. It is not, however, necessary
\nthat each conspirator should have been in communication with every other.”\n<\/p>\n
There is no difference between the mode of proof of the offence of
\nconspiracy and that of any other offence, it can be established by direct
\nor circumstantial evidence. (See: Bhagwan Swarup Lal etc. etc. v. State of
\nMaharashtra, AIR (1965) SC 682 at p. 686].\n<\/p>\n
Privacy and secrecy are more characteristics of conspiracy, than of a loud
\ndiscussion in an elevated place open to public view. Direct evidence in
\nproof of a conspiracy is seldom available, offence of conspiracy can be
\nproved by either direct or circumstantial evidence. It is not always
\npossible to give affirmative evidence about the date of the formation of
\nthe criminal conspiracy, about the persons who took part in the formation
\nof the conspiracy, about the object, which the objectors set before
\nthemselves as the object of conspiracy, and about the manner in which the
\nobject of conspiracy is to be carried out, all this is necessarily a matter
\nof inference.\n<\/p>\n
The provisions of Section 120-A and 120-B,IPC have brought the law of
\nconspiracy in India in line with the English Law by making the overt act
\nunessential when the conspiracy is to commit any punishable offence. The
\nEnglish Law on this matter is well settled. Russell on crime (12 Ed. Vol.
\nI, p. 202) may be usefully noted-\n<\/p>\n
The gist of the offence of conspiracy then lies, not in doing the act, or
\neffecting the purpose for which the conspiracy is formed, nor in attempting
\nto do them, nor in citing others to do them, but in the forming of the
\nscheme or agreement between the parties, agreement is essential. Mere
\nknowledge, or even discussion, of the plan is not, per se, enough.”\n<\/p>\n
Glanville Williams in the “Criminal Law” (Second Ed. P. 382) states-\n<\/p>\n
“The question arose in an Iowa case, but it was discussed in terms of
\nconspiracy rather then of accessoryship. D, who had a grievance against P,
\ntold E that if he would whip P someone would pay his fine. E replied that
\nhe did not want anyone to pay his fine, that he had a grievance of his own
\nagainst P and that he would whip him at the first opportunity. E whipped
\nP.O. was acquitted of conspiracy because there was no agreement for
\n‘concert of action, no agreement to ‘co-operate’. Coleridge, J, while
\nsumming up the case to Jury in Regina v. Murphy, (1837) 173 ED 502 at p.
\n508] states:\n<\/p>\n
“I am bound to tell you, that although the common design is the root of the
\ncharge, it is not necessary to prove that these two parties came together
\nand actually agreed in terms to have this common design and to pursue it by
\ncommon means, and so to carry it into execution. This is not necessary,
\nbecause in many cases of the most clearly established conspiracies there
\nare no means of proving any such thing and neither law nor common sense
\nrequires that it should be proved. If you find that these two persons
\npursued by their acts the same object, often by the same means, one
\nperforming one part of an act, so as to complete it, with a view to the
\nattainment of the object which they were pursuing, you will be at liberty
\nto draw the conclusion that they have been engaged in a conspiracy to
\neffect that object. The question you have to ask yourselves is, had they
\nthis common design, and did they pursue it by these common means the design
\nbeing unlawful.”\n<\/p>\n
As note above, the essential ingredient of the offence of criminal
\nconspiracy is the agreement to commit an offence. In a case where the
\nagreement is for accomplishment of an act which by itself constitutes an
\noffence, then in that event no overt act is necessary to be proved by the
\nprosecution because in such a situation, criminal conspiracy is established
\nby proving such an agreement. Where the conspiracy alleged is with regard
\nto commission of a serious crime of the nature as contemplated in Section
\n120 B read with the proviso to sub-section (2) of Section 120 A, then in
\nthat event mere proof of an agreement between the accused for commission of
\nsuch a crime alone is enough to bring about a conviction under Section 120
\nB and the proof of any overt act by the accused or by any one of them would
\nnot be necessary. The provisions, in such a situation, do not require that
\neach and every person who is party to the conspiracy must do some overt act
\ntowards the fulfilment of the object of conspiracy, to commit the essential
\ningredient being an agreement between the conspirators to commit the crime
\nand if these requirements and ingredients are established, the act would
\nfall within the trapping of the provisions contained in section 120 B [See:
\nS.C. Bahri v. State of Bihar, AIR<\/a> (1994) SC 2420.\n<\/p>\n
The conspiracies are not hatched in open, by their nature, they are
\nsecretly, planned, they can be proved even by circumstantial evidence, the
\nlack of direct evidence relating to conspiracy has no consequence. [See:
\nE.K. Chandrasenan v. State of Kerala, AIR<\/a> (1995) SC 1066].\n<\/p>\n
In Kehar Singh and Ors. v. The State (Delhi Administration), AIR<\/a>(1988)SC
\n1883 at p. [1954], this Court observed:\n<\/p>\n
“Generally, a conspiracy is hatched in secrecy and it may be difficult to
\nadduce direct evidence of the same. The prosecution will often rely on
\nevidence of acts of various parties to infer that they were done in
\nreference to their common intention. The prosecution will also more often
\nrely upon circumstantial evidence. The conspiracy can be undoubtedly proved
\nby such evidence direct or circumstantial. But the court must enquire
\nwhether the two persons are independently pursuing the same end or they
\nhave come together to the pursuit of the unlawful object. The former does
\nnot render them conspirators, but the latter does. It is, however,
\nessential that the offence of conspiracy required some kind of physical
\nmanifestation of agreement. The express agreement, however, need not be
\nproved. Nor actual meeting of the two persons is necessary. Nor it is
\nnecessary to prove the actual words of communication. The evidence as to
\ntransmission of thoughts sharing the unlawful design may be sufficient.
\nConspiracy can be proved by circumstances and other materials. (See: State\n<\/p>\n
o) Bihar v. Paramhans, (1986) Pat LJR 688. To establish a charge of
\nconspiracy knowledge about indulgence in either an illegal act or a legal
\nact by illegal means is necessary, In some cases, intent of unlawful use
\nbeing made of the goods or services in question may be inferred from the
\nknowledge itself. This apart, the prosecution has not to establish that a
\nparticular unlawful use was intended, so long as the goods or service in
\nquestion could not be put to any lawful use Finally, when the ultimate
\noffence consists of a chain of actions, i would not be necessary for the
\nprosecutions to establish, to bring home the charge of conspiracy, that
\neach of the conspirators had the knowledge of what the collaborator would
\ndo so, so long as it is known that the collaborator would put the goods or
\nservice to an unlawful use . (See State of Maharashtra v. Som Nath Thapa,
\nJ<\/a>] (1996) 4 SC 615.\n<\/p>\n
We may usefully refer to Ajay Agarwal v. Union of India and Ors., J<\/a>] (1993)
\n3 SC 203. It was held:\n<\/p>\n
XXX                                                   XXX\nXXX\n\n<\/pre>\n
“8………..It is not necessary that each conspirator must know all the
\ndetails of the scheme nor be a participant at every stage. It is necessary
\nthat they should agree for design or object of conspiracy. Conspiracy is
\nconceived as having three elements. (1) agreement; (2) between two or more
\npersons by whom the agreement is effected: and (3) a criminal object, which
\nmay be either the ultimate aim of the agreement, or may constitute the
\nmeans, or one of the means by which that aim is to be accomplished. It is
\nimmaterial whether this is found in the ultimate objects. The common law
\ndefinition of ‘criminal conspiracy’ was stated first by Lord Denman in
\nJones’ case that an indictment for conspiracy must “charge a conspiracy to
\ndo an unlawful act by unlawful means” and was elaborated by Willies, J. on
\nbehalf of the judges while referring the question to the House of Lords in
\nMulcahy v. Reg, and House of Lords in unanimous decision reiterated in
\nQuinn v. Leathem:\n<\/p>\n
‘A conspiracy consists not merely in the intention of two or more, but in
\nthe agreement of two or more, to do an unlawful act, or to do a lawful act
\nby unlawful means. So long as such a design rest in intention only, it is
\nnot indictable. When two agree to carry it into effect, the very plot is an
\nact in itself, and the act of each of the parties, promise against promise,
\nactus contra actum, capable of being enforced, if lawful; punishable of for
\na criminal object, or for the use of criminal means.’<\/p>\n
The Court in B.G. Barsay v. State of Bombay,<\/a> held:\n<\/p>\n
“The gist of the offence is an agreement to break the law. The parties to
\nsuch an agreement will be guilty of criminal conspiracy, though the illegal
\nact agreed to be done has not been done. So too, it is an ingredient of the
\noffence that all the parties should agree to do a single illegal act. It
\nmay comprise the commission of a number of acts. Under Section 43 of the
\nIndia Penal Code, an act would be illegal if it is an offence or if it is
\nprohibited by law.”\n<\/p>\n
In Yash Pal Mittal v. State of Punjab,<\/a> [1977] SCC 540 the rule was laid as
\nfollows: (SCC p. 543 para 9)<\/p>\n
‘The very agreement, concert or league is the ingredient of the offence. It
\nis not necessary that all the conspirators must know each and every detail
\nof the conspiracy as long as they are co-participators in the main object
\nof the conspiracy. There may be so many devices and techniques adopted to
\nachieve the common goal of the conspiracy and there may be division of
\nperformances in the chain of actions with one object to achieve the real
\nend of which every collaborator must be aware and in which each one of them
\nmust be interested. There must be unity of object or purpose but there may
\nbe plurality of means sometimes even unknown to one another, amongst the
\nconspirators. In achieving the goal several offences may be committed by
\nsome of the conspirators even unknown to the others. The only relevant
\nfactor is that all means adopted and illegal acts done must be and
\npurported to be in furtherance of the object of the conspiracy even though
\nthere may be sometimes misfire or overshooting by some of the
\nconspirators.’<\/p>\n
In Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of
\nMaharashtra,<\/a> (1981) 2 SCC 443, it was held that for an offence under
\nSection 120B IPC, the prosecution need not necessarily prove that the
\nperpetrators expressly agreed to do or cause to be done the illegal act,
\nthe agreement may be proved by necessary implication.”\n<\/p>\n
Where trustworthy evidence establishing all links of circumstantial
\nevidence is available the confession of a co-accused as to conspiracy even
\nwithout corroborative evidence can be taken into consideration. [See
\nBaburao Bajirao Patil v. State of Maharashtra,<\/a> [1971] 3 SCC 432]. It can in
\nsome cases be inferred from the acts and conduct of parties. [See
\nShivanarayan Laxminarayan Joshi and Ors. v. State of Maharashtra and Ors,,
\nAIR<\/a> (1980) SC 439.\n<\/p>\n
That brings us to another angle i.e. acceptability of the confession.
\nSection 24 of the Evidence Act interdicts a confession if it appears to the
\nCourt to be the result of any inducement, threat or promise in certain
\nconditions. The principle therein is that confession must be voluntary. It
\nmust be the outcome of his own free will inspired by the sound of his own
\nconscience to speak nothing but truth.\n<\/p>\n
Words and Phrases, permanent edition, Vol. 44, p. 622 defines ‘voluntary’
\nas:\n<\/p>\n
‘Voluntary’ means a statement made of the free will and accord of accuse,
\nwithout coercion, whether from fear of any threat of harm, promise, or
\ninducement or any hope of reward-State v. Mullin,<\/p>\n
(85NW 2nd 598, 600, 249 down 10)”\n<\/p>\n
Words and Phrases by John B. Saunders 3rd edition, vol. 4 4, p. 401,
\n‘voluntary’ is defined as:\n<\/p>\n
“………the classic statement of the principle is that of Lord Sumner in
\nlbrahim v. Regem, (1914) AC 599 (at p. 609) where he said, “it has long
\nbeen established as a positive rule of English criminal law that no
\nstatement by an accused is admissible in evidence against him unless it is
\nshown by the prosecution to be a voluntary statement, in the sense that it
\nhas not been obtained from him either by fear of prejudice or hope of
\nadvantage exercise or held out by a person in authority. The principle is
\nas old as Lord Hale”. However, in five of the eleven textbooks cited to us
\n……support is to be found for a narrow and rather technical meaning of
\nthe word “voluntary”. According to this view, “voluntary”. According to
\nthis view, ‘voluntary” means merely that the statement has not been made in
\nconsequence of (i) some promise of advantage or some threat (ii) of a
\ntemporal character (iii) held out or made by a person in authority, and\n<\/p>\n
(iv) relating to the charge in the sense that it implies that the accused’s
\nposition in the contemplated proceedings will or may be better or worse
\naccording to whether or not the statement is made. R. v. Power, (1966) 2
\nAll ER 433 (at pp. 454, 455) per Cantley, V.”\n<\/p>\n
A confessional statement is not admissible unless it is made to the
\nMagistrate under Section 25 of the Evidence Act. The requirement of Section
\n30 of the Evidence Act is that before it is made to operate against the co-
\naccused the confession should be strictly established. In other words, what
\nmust be before the Court should be a confession proper and not a mere
\ncircumstance or an information which could be an incriminating one.
\nSecondly, it being the confession of the maker, it is not to be treated as
\nevidence within the meaning of Section 3 of the Evidence Act against the
\nnon-maker co-accused and lastly, its use depends on finding other evidence
\nso as to connect the co-accused with crime and that too as a corroborative
\npiece. It is only when the other evidence tendered against the co-accused
\npoints to his guilt then the confession duly proved could be used against
\nsuch co-accused if it appears to effect him as lending support or assurance
\nto such other evidence. To attract the provisions of Section 30, it should
\nfor all purposes be a confession, that is a statement containing an
\nadmission of guilt and not merely a statement raising the inference with
\nregard to such a guilt. The evidence of co-accused cannot be considered
\nunder Section 30 of the Evidence Act, where he was not tried jointly with
\nthe accused and where he did not make a statement incriminating himself
\nalong with the accused. As noted above, the confession of co-accused does
\nnot come within the definition of evidence contained in Section 3 of the
\nEvidence Act. It is not required to be given on oath, nor in the presence
\nof the accused, and it cannot be tested by cross-examination. It is only
\nwhen a persons admits guilty to the fullest extent, and exposes himself to
\nthe pains and penalties provided for his guilt, there is a guarantee for
\nhis truth. Legislature provides that his statement may be considered
\nagainst his fellow accused charged with the same crime. The test is to see
\nwhether it is sufficient by itself to justify the conviction of the person
\nmaking it of the offence for which he is being jointly tried with the other
\nperson or persons against whom it is tendered. The proper way to approach a
\ncase of this kind is, first to marshal the evidence against the accused
\nexcluding the confession altogether from consideration and see whether if
\nit is believed, a conviction could safely be based on it. If it is capable
\nof belief independently of the confession, then of course it is not
\nnecessary to call the confession in aid. But cases may arise where the
\nJudge is not prepared to act on the other evidence as it stands even
\nthough, if believed, it would be sufficient to sustain a conviction. In
\nsuch an event the Judge may call in aid the confession and use it to lend
\nassurance to the other evidence. This position has been clearly explained
\nby this Court Kashmira Singh v. The State of Madhya Pradesh, AIR<\/a> (1952) SC\n<\/p>\n
159. The exact Scope of Section 30 was discussed by the Privy Council in
\nthe case of Bhubani v. The King, AIR (1949) PC 257. The relevant extract
\nfrom the said decision which has become locus classicus reads as follows:\n<\/p>\n
“Sec. 30 applies to confessions, and not to statements which do not admit
\nthe guilt of the confessing party……..But a confession of a co-accused
\nis obviously evidence of a very weak type…..It is a much weaker type of
\nevidence than the evidence of an approver which is not subject to any of
\nthose infirmities. Sec. 30, however, provides that the Court may take the
\nconfession into consideration and thereby, no doubt, make it evidence on
\nwhich the Court may act but the section does not say that the confession is
\nto amount to proof. Heady there must be other evidence. The confession is
\nonly one element in the consideration of all the facts proved in the case;
\nit can be put into the scale and weighed with the other evidence. The
\nconfession of the co-accused and be used only in support of other evidence
\nand cannot be made the foundation of a conviction”. Kashmira Singh’s
\nprinciples were noted with approval by a Constitution Bench of these Court
\nHart Charan Kurmi and Jodia Hajam v. State of Bihar, [1964] 6 SCR 623. It
\nwas noted that the basis on which Section 30 operates . is that if a person
\nmakes a confession implicating himself that may suggest that the maker of
\nthe confession is speaking the truth. Normally, if a statement made by an
\naccused person is found to be voluntary and it amounts to a confession in
\nthe sense that it implicates the maker, it is to likely that the maker
\nwould implicate himself untruly. So Section 30 provides that such a
\nconfession may be taken into consideration even against the co-accused who
\nis being tried along with the maker of the confession. It is significant
\nhowever that like other evidence which is produced before the Court it is
\nnot obligatory on the Court to take the confession into account. When
\nevidence as defined by the Evidence Act is produced before the Court it is
\nthe duty of the Court to consider that evidence. What weight should be
\nattached to such evidence is a matter in the discretion of the Court. But
\nthe Court cannot say in respect of such evidence that it will just not take
\nthat evidence into account. Such an approach can however be adopted by the
\nCourt in dealing with a confession because Section 30 merely enables the
\nCourt to take the confession into account. Where, however, the Court takes
\nit into confidence, it cannot be faulted. The principle is that the Court
\ncannot start with confession of a co-accused person; it must begin with
\nother evidence adduced by the prosecution and after it has formed its
\nopinion with regard to the quality and effect of the said evidences, then
\nit is permissible to turn to the confession in order to receive assurance
\nto the conclusion of guilt which the judicial mind is about the reach on
\nsome other evidence. That is the true effect of the provision contained in
\nSection 30. We may note that great stress was laid down on the so-called
\nretraction of the makers of the confession. Apart from the fact that the
\nsame was made after about two years of the confession. PWs 81 and 82 have
\nstated in Court as to the procedures followed by them, while recording the
\nconfession. The evidence clearly establishes that the confessions were true
\nand voluntary. That was not the result of any tutoring, compulsion or
\npressurization. As was observed by this Court in Shankaria v. State of”
\nRajasthan, (1978) Crl. LJ. 1251, the Court is to apply double test for
\ndeciding the acceptability of a confession i.e. (i) whether the confession
\nwas perfectly voluntary and (ii) if so, whether it is true and trustworthy.
\nSatisfaction of the first test is a sine qua non for its admissibility in
\nevidence. If the confession appears to the Court to have been caused by any
\ninducement, threat or promise, such as mentioned in Section 24 of the
\nEvidence Act, it must be excluded and rejected brevi manu. If the first
\ntest is satisfied, the Court must before acting upon the confession reach
\nthe finding that what is stated therein is true and reliable. The Judicial
\nMagistrate PWs. 81 and 82 have followed the requisite procedure. It is
\nrelevant to further note that complaint was lodged before the Magistrate
\nbefore his recording of the confessional statement of accused Md. Gulzar.
\nThe complaint was just filed in Court and it was not moved. The name of the
\nlawyer filing the complaint could not be ascertained either. This fact has
\nbeen noted by the Designated Court.\n<\/p>\n
In view of what we have said about the confessional statement it is not
\nnecessary to go into the question as to whether the statement recorded
\nunder Section 164 of the Code as to be given greater credence even if the
\nconfessional statement has not been recorded under Section 15 of the TADA
\nAct. However, we find substance in the stand of learned counsel for
\naccused-appellants that Section 10 of the Evidence Act which is an
\nexception to the general rule while permitting the statement made by one
\nconspirator to be admissible as against another conspirator restricts it to
\nthe statement made during the period when the agency subsisted. In State of
\nGujarat v. Mohd. Atik and Ors.,<\/a> [1998] 4 SCC 351, it was held that
\nprinciple is no longer res Integra that any statement made by an accused
\nafter his arrest, whether as a confession or otherwise, cannot fall within
\nthe ambit of Section 10 of the Evidence Act. Once the common intention
\nceased to exist any statement made by a former conspirator thereafter
\ncannot be regarded as one made in reference to their common intention. In
\nother words, the post arrest statement made to a police officer, whether it
\nis a confession or otherwise touching his involvement in the conspiracy,
\nwould not fall within the ambit of Section 10 of the Evidence Act.\n<\/p>\n
The first condition which is almost the opening lock of that provision is
\nthe existence of “reasonable ground to believe” that the conspirators have
\nconspired together. This condition will be satisfied even when there is
\nsome prima facie evidence to show that there was such a criminal
\nconspiracy. If the aforesaid preliminary condition is fulfilled then
\nanything said by one of the conspirators becomes substantive evidence
\nagainst the other, provided that should have been a statement “in reference
\nto their common intention”. Under the corresponding provision in the
\nEnglish law the expression used is “in furtherance of the common object.”
\nNo doubt, the words “in reference to their common intention” we wider than
\nthe words used in English law (vide Sardar Sardul Singh Caveeshar v. The
\nState of Maharashtra, AIR<\/a> (1965) SC 682.\n<\/p>\n
But the contention that any statement of a conspirator, whatever be the
\nextent of time, would gain admissibility under Section 10 if it was made
\n“in reference” to the common intention, is too broad a proposition for
\nacceptance. We cannot overlook that the basic principle which underlies in
\nSection 10 of the Evidence Act is the theory of agency. Every conspirator
\nis an agent of his associate in carrying out the object of the conspiracy.
\nSection 10, which is an exception to the general rule, while permitting the
\nstatement made by one conspirator to be admissible as against another
\nconspirator restricts it to the statement made during the period when the
\nagency subsisted. Once it is shown that a person became snapped out of the
\nconspiracy, any statement made subsequent thereto cannot be used as against
\nthe other conspirators under Section 10.\n<\/p>\n
Way back in 1940, the Privy Council had considered this aspect and Lord
\nWright, speaking for Viscount Maugham and Sir George Rankin in Mirza Akbar
\nv. King-Emperor, AIR (1940) P.C. 176 had stated the legal position thus:\n<\/p>\n
“The words ‘common intention’ signify a common intention existing at the
\ntime when the thing was said, done or written by one of them. Things said,
\ndone or written while the conspiracy was on foot are relevant as evidence
\nof the common intention, once reasonable ground has been shown to believe
\nin its existence. But it would be a very different matter to hold that any
\nnarrative or statement or confession made to a third party after the common
\nintention or conspiracy was no longer operating and had ceased to exist is
\nadmissible against the other party.”\n<\/p>\n
Intention is the volition of mind immediately preceding the act while the
\nobject is the end to which effect is directed the thing aimed at and that
\nwhich one endeavours to attain and carry on. Intention implies the
\nresolution of the mind while the object means the purpose for which the
\nresolution was made.\n<\/p>\n
In Bhagwan Swamp’s case (supra), it was observed that the expression ‘in
\nreference to their common intention’ is wider than the words ‘in
\nfurtherance of the common intention’ and this is very comprehensive and it
\nappears to have been designedly used to give it a wider scope than the
\nwords ‘in furtherance of in the English Law. But, once the common intention
\nceased to exist any statement made by a former conspirator thereafter
\ncannot be regarded as one made ‘in reference to the common intention.
\nTherefore, a post arrest statement made to the police officer was held to
\nbe beyond the ambit of Section 10 of the Evidence Act.\n<\/p>\n
In Sardul Singh Caveeshar v. The State of Bombay, AIR (1957) SC 747, it was
\nheld:\n<\/p>\n
“The principle underlying the reception of evidence under Section 10 of the
\nEvidence Act of the statements, acts and writings of one co-conspirator as
\nagainst the other is on the theory of agency. The rule in Section 10 of the
\nEvidence Act confines that principle of agency in criminal matters to the
\nacts of the co-conspirator within the period during which it can be said
\nthat the acts were ‘in reference to their common intention’ that is to say
\n‘things said, done or written while the conspiracy was on foot’ and ‘in
\ncarrying out the conspiracy’. It would seem to follow that where the charge
\nspecified the period of conspiracy evidence of acts of co-conspirators
\noutside the period is not receivable in evidence.”\n<\/p>\n
In a given case, however, if the object of conspiracy has not been achieved
\nand there is still agreement to do the illegal act, the offence of a
\ncriminal conspiracy continues and Section 10 of the Evidence Act applies.
\nIn other words, it cannot be said to be a rule of universal application.
\nThe evidence in each case has to be tested and the conclusions arrived at.
\nIn the present case, the prosecution has not led any evidence to show that
\nany particular accused continued to be a member of the conspiracy after his
\narrest. Similar view was expressed by this Court in State v. Nalini, [1999]
\n5 SCC 253.\n<\/p>\n
It was urged with some amount of vehemence by the learned counsel for the
\nappellants that no terrorise act was involved.\n<\/p>\n
While dealing with an accused tried under the TADA, certain special
\nfeatures of the said Statute need to be focused. It is also necessary to
\nfind out the legislative intent for enacting it. If defines “terrorist
\nacts” in Section 2(h) with reference to Section 3(1) and in that context
\ndefines a terrorist. It is not possible to define the expression
\n‘terrorism’ in precise terms. It is derived from the word ‘terror’. As the
\nStatement of Objects and Reasons leading to enactment of the TADA is
\nconcerned, reference to The Terrorist and Disruptive Activities
\n(Prevention) Act, 1985 (hereinafter referred to as the ‘Old Act’) is
\nnecessary. It appears that the intended object of the said Act was to deal
\nwith persons responsible for escalation of terrorist activities in many
\nparts of the country. It was expected that it would be possible to control
\nthe menace within a period of two years, and life of the Act was restricted
\nto the period of two years from the date of its commencement. But noticing
\nthe continuance of menance, that too on a larger scale TADA has been
\nenacted. Menance of terrorism is not restricted to our country, and it has
\nbecome a matter of international concern and the attacks on the World Trade
\nCentre and other laces on 11th September, 2001 amply show it. Attack on the
\nParliament on 13th December, 2001 shows how grim the situation is. TADA is
\napplied as an extreme measure when police fails to tackle with the
\nsituation under the ordinary penal law. Whether the criminal act was
\ncommitted with an intention to strike terror in the people or section of
\npeople would depend upon the facts of each case. As was noted in Jayawant
\nDattatray Suryarao etc. etc. v. State of Maharashtra etc. etc., (2001) AIR
\nSCW 4717, for finding out the intention of the accused, there would hardly
\nbe a few cases where there would be direct evidence. It has to be mainly
\ninferred from the circumstances of each case.\n<\/p>\n
In Hintendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors.,
\n[1994] 4 SCC 602, this Court observed that:\n<\/p>\n
“that legal position remains unaltered that the crucial postulate for
\njudging whether the offence is a terrorist act falling under TADA or not is
\nwhether it was done with the intent to overawe the Government as by law
\nestablished or to strike terror in the people etc. A ‘terrorist’ activity
\ndoes not merely arise by causing disturbance of law and order or of public
\norder. The fall out of the intended activity is to be one that it travels
\nbeyond the capacity of the ordinary law enforcement agencies to tackle it
\nunder the ordinary penal law. It is in essence a deliberate and systematic
\nuse of conercive intimidation”.\n<\/p>\n
As was noted in the said case, it is a common feature that hardened
\ncriminals today take advantage of the situation and by wearing the cloak of
\nterrorism, aim to achieve acceptability and respectability in the society;
\nbecause in different parts of the country affected by militancy, a
\nterrorist is projected as a hero by a group and often even by many
\nmisguided youth. As noted at the outset, it is not possible to precisely
\ndefine “terrorism”. Finding a definition of “terrorism” has haunted
\ncountries for decades. A first attempt to arrive at an internationally
\nacceptable definition was made under the League of Nations, but the
\nconvention drafted in 1937 never came into existence. The UN Member States
\nstill have no agree-upon definition. Terminology consensus would, however,
\nbe necessary for a single comprehensive convention on terrorism, which some
\ncountries favour in place of the present 12 piecemeal conventions and
\nprotocols. The lack of agreement on a definition of terrorism has been a
\nmajor obstacle to meaningful international countermeasures. Cynics have
\noften commented that one State’s “terrorist” is another State’s “freedom
\nfighter”. If terrorism is defined strictly in terms of attacks on non-
\nmilitary targets, number of attacks on military installations and soldiers’
\nresidences could not be included in the statistics. In order to cut through
\nthe Gordian definitional knot, terrorist expert A. Schmid suggested in 1992
\nin a report for the then UN Crime Branch that it might be a good idea to
\ntake the existing consensus on what constitutes a “war crime” as a point of
\ndeparture. If the core of war crime-deliberate attacks on civilians,
\nhostage taking and the killing of prisoners-is extended to peacetime, we
\ncould simply define acts of terrorism as “peacetime equivalents of war
\ncrimes.”\n<\/p>\n
League of Nations Convention (1937) :\n<\/p>\n
“All criminal acts directed against a State along with intended or
\ncalculated to create a statute of terror in the minds of particular persons
\nor a group of persons or the general public”.\n<\/p>\n
(GA Res. 51\/210 Measures to eliminate international terrorism)<\/p>\n
“1. Strongly condemns all acts, methods and practices of terrorism as
\ncriminal and unjustifiable, wherever and by whomsoever committed;\n<\/p>\n
2.  Reiterates that criminal acts intended or calculated to provoke a state
\nof terror in the general public, a group of persons or particular persons
\nfor political purposes are in any circumstances unjustifiable, whatever the
\nconsiderations of a political, philosophical, ideological, racial, ethnic,
\nreligious or other nature that may be invoked to justify them.”\n<\/p>\n
3.  Short legal definition proposed by A.P. Schmid to United Nations Crime
\nBranch (1992):\n<\/p>\n
Act of Terrorism = Peacetime Equivalent or War Crime<\/p>\n
4.  Academic Consensus Definition:\n<\/p>\n
“Terrorism is an anxiety-inspiring of repeated violent action, employed by
\n(semi-) clandestine individual, group or state actors, for idiosyncratic,
\ncriminal or political reason, whereby -in contrast to assassination -the
\ndirect targets of violence are not the main targets. The immediate human
\nvictims of violence are generally chosen randomly (targets of opportunity)
\nor selectively (representative or symbolic targets) from a target
\npopulation, and serve as message generators. Threat-and violence-based
\ncommunication processes between terrorist (organization), (imperiled)
\nvictims, and main targets are used to manipulate the main target (audience\n<\/p>\n
(s)), turning it into a target of terror, a target of demands, or a target
\nof attention, depending on whether intimidation, coercion, or propoganda is
\nprimarily sought” (Schmid, 1988).\n<\/p>\n
Definitions:\n<\/p>\n
Terrorism by nature is difficult to define. Acts of terrorism conjure
\nemotional responses in the victims (those hurt by the violence and those
\naffected by the fear) as well as in the practitioners. Even the U.S.
\ngovernment cannot agree on one single definition. The old adage, “One man’s
\nterrorist is another man’s freedom fighter” is still alive and well. Listed
\nbelow are several definitions of terrorism used by the Federal Bureau of
\nInvestigation.\n<\/p>\n
Terrorism is the use or threatened use of force designed to bring about
\npolitical change.-Brain Jenkins.\n<\/p>\n
Terrorism constitutes the illegitimate use of force to achieve a political
\nobjective when innocent people are targeted.-Walter Laqueur.\n<\/p>\n
Terrorism is the premeditated, deliberate, systematic murder, mayhem, and
\nthreatening of the innocent to create fear and intimidation in order to
\ngain a political or tactical advantage, usually to influence an audience. –
\nJames M. Poland.\n<\/p>\n
Terrorism is the unlawful use or threat of violence against persons or
\nproperty to further political or social objectives. It is usually intended
\nto intimidate or coerce a governmental, individuals or groups, or to modify
\ntheir behaviour or polities. -Vice-President’s Task Force, 1986.\n<\/p>\n
Terrorism is the unlawful use of force or violence against persons or
\nproperty to intimidate or coerce a government, the civilian population, or
\nany segment thereof, in furtherance of political or social objectives. –
\nDefinition.\n<\/p>\n
Terrorism is one of the manifestations of increased lawlessness and cult of
\nviolence. Violence and crime constitute a threat to an established order
\nand are a revolt against a civilised society. ‘Terrorism’ has not been
\ndefined under TADA nor is it possible to give a precise definition of
\n‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to
\ndescribe it as use of violence when its most important result is not merely
\nthe physical and mental damage of the victim but the prolonged
\npsychological effect it produces or has the potential or producing on the
\nsociety as a whole. There may be death, injury, or destruction of property
\nor even deprivation of individual liberty in the process but the extent and
\nreach of the intended terrorist activity travels beyond the effect of an
\nordinary crime capable of being punished under the ordinary penal law of
\nthe land and its main objective is to overawe the Government or. disturb
\nharmony of the society or ‘terrorise’ people and the society and not only
\nthose directly assaulted, with a view to disturb even tempo, peace and
\ntranquillity of the society and create a sense of fear and insecurity.\n<\/p>\n
In the background of what we have said about terrorist’s acts (supra), plea
\nof accused-appellants is clearly unacceptable. As was observed by this
\nCourt when earlier the matter was before it in the prosecution’s appeal
\nquestioning the quashing of order of sanction and application of TADA, the
\npreparation of bombs and possession of bombs would tantamount to
\nterrorizing the people. Credible evidence proves it to be a terrorist act.
\nThe explosion of large number of live bombs is a clear indication of
\nconspiracy. It was further held that it cannot be contended that if the
\nbombs are for self defence there was no mens rea. Preparation and storage
\nof bombs are per se illegal acts.\n<\/p>\n
Further question is when the right of private defence arises. It never
\ncommences before a reasonable apprehension arises in the mind of the
\naccused. Here there was no evidence that there was any indication about
\nattack on the Muslims and, therefore, the question of any reasonable
\napprehension does not arise. The cover of self-protection when pierced
\nunravels a sinister design to unleash terror.\n<\/p>\n
As was observed by this Court in Yogendra Moraffi v. State of Gujarat,
\n[1980] 2 SCC 218, the right of self defence commences not before a
\nreasonable apprehension arises in the mind of the accused.\n<\/p>\n
As was observed by this Court in Puran Singh and Ors. v. The State of
\nPunjab, AIR (1975) SC 1674 (Para 20) right is not available if there is
\nsufficient time for recourse to a public authority. There was no scope for
\ninterfering the so-called view of the accused persons that police may not
\nhelp them. That occasion had not arisen. On the question of applicability
\nof Sections 3 and 4 of the Explosive Act and the true intent, we only need
\nto refer to Corpus Juris Secundum (A Contemporary Statement of American
\nLaw), Volume 22. It is held at page 116 (Criminal Law) as under:\n<\/p>\n
“Intention<\/p>\n
(a)  In general<\/p>\n
(b)  Specific or general intent crimes<\/p>\n
(a) In general.-As actual intent to commit the particular crime toward
\nwhich the act moves is a necessary element of an attempt to commit a crime.
\nAlthough the intent must be one in fact, not merely in law, and may not be
\ninferred from the overt act alone, it may be inferred from the
\ncircumstances.”\n<\/p>\n
As regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section
\n133, it is stated as under:\n<\/p>\n
“133. Motive-In criminal law motive may be defined as that which leads or
\ntempts the mind to indulge in a criminal act or as the moving power which
\nimpels to action for a definite result.”\n<\/p>\n
In view of our conclusions that charges under Sections 3(2)(1) and 3(3) of
\nTADA and Section 120B IPC are clearly established, we do not think it
\nnecessary to go through a hair splitting approach vis-a-vis Section 3 and 4
\nof the Explosive Act. Even if it is accepted that Section 3 of the Act was
\nnot applicable and what was applicable in Section 4 of the Explosive Act
\nyet it can only be the question of sentence which can be imposed. As the
\ncharge is for higher offence, conviction of lesser offence is permissible.
\nAs we are upholding the award of life sentence for the offences under
\nSections 120B IPC and Section 3(2)(1) and Section 3(3) of the TADA Act, any
\nreduction in sentence from 10 years to 7 years (in the background of
\nSections 3 and 4 of the Explosive Act) is really of no consequence. The
\nappeals filed by the accused persons deserves to be dismissed, and we so
\ndirect.\n<\/p>\n
Coming to the appeal filed by the prosecution against the acquittal in
\nrespect of charges under Section 302\/34 and Section 436\/34 IPC, learned
\ncounsel for the prosecution fairly stated, and in our opinion rightly, that
\nthe acquittal is justified. Though, it was submitted by Mr. K.T.S. Tulsi
\nthat higher sentences would have been more appropriate in respect of
\nestablished offences, we do not think it necessary to go into that question
\nin absence of an appeal by the prosecution in that regard. The appeal filed
\nby the State is accordingly dismissed. In the result, all the seven appeals
\nstand dismissed.\n<\/p>\n
Before parting with the case, we may point out that the Designated Court
\ndeferred the cross examination of the witnesses for a long time. That is a
\nfeature which is being noticed in many cases. Unnecessary adjournments give
\na scope for a grievance that accused persons get a time to get over the
\nwitnesses. Whatever be the truth in this allegation, the fact remains that
\nsuch adjournments lack the spirit of Section 309 of the Code. When a
\nwitness is available and his examination-in-chief is over, unless
\ncompelling reasons are there, the Trial Court, should not adjourn the
\nmatter on mere asking. These aspects were highlighted by this Court in
\nState of U.P. v. Shambhu Nath Singh and Ors.,<\/a> [2001] 4 SCC 667 and N.G.
\nDastance, v. Shrikant S. Shivde and Anr.,<\/a> [2001] 6 SCC 135. In Shambhu Nath
\nSingh’s case (supra) this Court deprecated the practice of courts
\nadjourning cases without examination of witnesses when they are in
\nattendance with following observations:\n<\/p>\n
“9. We make it abundantly clear that if a witness is present in court he
\nmust be examined on that day. The court must know that most of the
\nwitnesses could attend the court only at heavy cost to them, after keeping
\naside their own avocation. Certainly they incur suffering and loss of
\nincome. The meagre amount of bhatta (allowance) which a witness may be paid
\nby the court is generally a poor solace for the financial loss incurred by
\nhim. It is a sad plight in the trial courts that witnesses who are called
\nthrough summons or other processes stand at the door stamp from morning
\ntill evening only to be told at the end of the day that the case is
\nadjourned to another day. This primitive practice must be reformed by the
\npresiding officers of the trial courts and it can be reformed by everyone
\nprovided the presiding officer concerned has a commitment towards duty. No
\nsadistic pleasure, in seeing how other persons summoned by him as witnesses
\nare stranded on account of the dimension of his judicial powers, can be
\npersuading factor for granting such adjournments lavishly, that too in a
\ncasual manner.”\n<\/p>\n
In N.G. Dasane case (supra) the position was reiterated. The following
\nobservations in the said case amply demonstrate the anxiety of this Court
\nin the matter :\n<\/p>\n
“An advocate abusing the process of court is guilty of misconduct. When
\nwitnesses are present in the court for examination the advocate concerned
\nhas a duty to see that their examination is conducted. We remind that
\nwitnesses who come to the court, on being called by the court, do so as
\nthey have no other option, and such witnesses are also responsible citizens
\nwho have other work to attend to for eking out a livelihood. They cannot be
\ntreated as less respectable to be told to come again and again just to suit
\nthe convenience of the advocate concerned. If the advocate has any
\nunavoidable inconvenience it is his duty to make other arrangements for
\nexamining the witnesses who are present in the court. Seeking adjournments
\nfor postponing the examination of the witnesses who are present in court
\neven without making other arrangements for examining such witnesses is a
\ndereliction of an advocate’s duty to the court as that would cause much
\nharassment and hardship to the witnesses. Such dereliction if repeated
\nwould amount to misconduct of the advocate concerned. Legal profession must
\nbe purified from such abuses of the court procedures. Tactics of
\nfilibuster, if adopted by an advocate, is also a professional misconduct.”\n<\/p>\n
It would be desirable for the Court to keep these aspects in view. Appeals
\nare dismissed, as noted above. S.K.S.\n<\/p>\n
Appeals dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohd. Khalid vs State Of West Bengal on 3 September, 2002 Bench: B.N. Kirpal Cji., K.G. Balakrishnan, Arijit Pasayat CASE NO.: Appeal (crl.) 1114 of 2001 PETITIONER: MOHD. KHALID RESPONDENT: STATE OF WEST BENGAL DATE OF JUDGMENT: 03\/09\/2002 BENCH: B.N. KIRPAL CJI.& K.G. BALAKRISHNAN & ARIJIT PASAYAT JUDGMENT: JUDGMENT 2002 Supp(2) […]<\/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-179258","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohd. 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