{"id":221631,"date":"2003-09-18T00:00:00","date_gmt":"2003-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/damodar-vs-state-of-rajasthan-on-18-september-2003"},"modified":"2015-12-28T00:50:12","modified_gmt":"2015-12-27T19:20:12","slug":"damodar-vs-state-of-rajasthan-on-18-september-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/damodar-vs-state-of-rajasthan-on-18-september-2003","title":{"rendered":"Damodar vs State Of Rajasthan on 18 September, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Damodar vs State Of Rajasthan on 18 September, 2003<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  1190 of 2001\n\nPETITIONER:\nDAMODAR\n\nRESPONDENT:\nSTATE OF RAJASTHAN\n\nDATE OF JUDGMENT: 18\/09\/2003\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(3) SCR 904<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
ARIJIT PASAYAT, J. : In these three appeals the factual matrix relates to
\nthe same incident and the judgment impugned being the same they are heard
\ntogether and disposed of by this common judgment.\n<\/p>\n
Appellant-Munna (in Crl. A.45\/2002) faced trial for alleged commission of
\noffence punishable under Section 302, appellant-Balak Dass (in Crl. A.No.
\n46\/2002) under Section 302 read with Section 34, Section 302 read with
\nSection 120B and Section 302 read with Section 114, and appellant-Damodar
\n(in Crl. A. No. 1190\/2001) under Section 302 read with Section 34, and
\nSection 302 read with Section 120B of the Indian Penal Code, 1860 (in short
\nthe ‘IPC’). Accused appellant-Munna was found guilty of offence punishable
\nunder Section 302, 302 read with Section 120B while other two appellants
\nDamodar and Balak Dass (A-4 and A-2 respectively) were found guilty of
\noffence punishable under Section 302 read with Section 120B. Appellant-
\nBalak Dass was additionally found guilty of offence punishable under
\nSection 302 read with Section 34 IPC. One Jagdish who also faced trial, was
\nconvicted and sentenced. Though he had preferred an appeal before the High
\nCourt, but the same was held to have abated on account of appellant’s
\ndeath.\n<\/p>\n
They were alleged to be perpetrators of homicidal death of one Guru Ram
\nRatan Giri (hereinafter referred to as the ‘deceased’) an octogenarian
\nSadhu. The motive of crime was stated to be property dispute. On the basis
\nof information given by Shiv Prasad (PW-15) on 18.10.1990, the fateful day,
\nlaw was set in motion. According to the informant the deceased had gone to
\nrepair a cycle. When he did not return for long time, informant went to
\nsearch for him. When they were returning on the cycle, they found station
\nwagon RSZ 5253 was being driven by accused-Munna rashly. The deceased asked
\nShiv Prasad to get down from the cycle. The vehicle was being driven by
\nMunna whereas accused-appellants Damodar and Balak Dass were accompanying
\nhim along with others. On being instructed by accused-appellant Balak Dass,
\nMunna ran the vehicle over the deceased. At the spot, accused-Jagdish (A-3)
\nwho had died during the pendency of the appeal before the High Court, was
\npresent and he came in a scooter made sure that the deceased was no longer
\nalive and they all run away. Another disciple of the deceased named Santosh
\nGiri (PW6) also witnessed the occurrence. Investigation was undertaken by
\nSetha Ram (PW-16). The summum bonum of materials collected during
\ninvestigation reveals involvement of four accused persons named above and
\nothers. Accordingly, charge sheet was filed. Initially on the basis of
\ninformation lodged, investigation commenced in respect of offence
\npunishable under Section 307 read with Section 34 IPC, later on after the
\ndeath of the deceased the case was converted into one for offence
\npunishable under Section 302 read with Section 34 IPC. Seventeen witnesses
\nwere examined and 26 documents were exhibited to substantiate prosecution
\nversion. The accused persons pleaded innocence and 5 documents were
\nexhibited to substantiate their plea of innocence. On consideration of the
\nmaterials on record, Additional Session Judge, Ajmer found the accused-
\nappellants guilty and convicted them as aforesaid. Accused-Munna was
\nconvicted and sentenced to imprisonment for life and to pay a fine of Rs.
\n5,000. Accused-Balak Dass was convicted for an offence punishable under
\nSection 302 read with Section 34 and Section 302 read with Section 120B and
\nwas sentenced to undergo imprisonment for life and to pay a fine of Rs.
\n5,000, Accused-Jagdish was convicted for an offence punishable under
\nSection 302 read with Section 120B and sentenced to imprisonment for life
\nand to pay a fine of Rs. 5,000. Similar sentence was imposed on accused-
\nDamodar.\n<\/p>\n
In appeal, the High Court of Rajasthan at Jaipur put its seal of approval
\non the convictions and sentences and dismissed the appeal filed by the
\naccused appellants. As noted above, accused-Jagdish died during the
\npendency of the appeal before the High Court. Accused persons have
\nseparately filed three appeals before this Court.\n<\/p>\n
In support of the appeals, Mr. Sushil Kumar, learned senior counsel for the
\nappellants submitted that the version of PW-15, the informal which has been
\nheld to be reliable by both the trial Court and the High Court suffers from
\nvulnerability. The evidence on record clearly establishes that his presence
\nat the spot of occurrence at the time of alleged incident is highly
\ndoubtful. There is even discrepancy as to the place where the FIR was
\nwritten. In several documents it was indicated, for example, the inquest
\nreport that the death was due to accident and it appears to be a case where
\nafter deliberation a plain simple case of accident has been termed as a
\nmurder with oblique motive. It is accepted by prosecution that there was a
\ntelephonic call received on the basis of which investigation was started.
\nTherefore, the so-called FIR by PW15 is one covered by Section 162 of the
\nCode of Criminal Procedure, 1973 (in short the ‘Code’). There is no
\nmaterial to show that accused-Munna was knowing driving or was the owner of
\nthe vehicle. If the vehicle was being driven at a speed of 40 K.M., it is
\nnot possible for any person much less PW-15 to hear from a distance of
\nabout 20 feet as to what was being said. Therefore, it is highly improbable
\nthat he could have heard accused-Balak Dass asking accused-Munna to run the
\nvehicle over the deceased. The ingredients for bringing in application of
\nSection 120B are clearly absent. There is no material whatsoever brought on
\nrecord to prove any conspiracy. It was therefore submitted that prosecution
\nversion is highly improbable and not supported by any material evidence on
\nrecord. Since PW-6 has been disbelieved, the defence version that there was
\nno eye-witness as claimed and that PWs 6 and 15 came to the spot after
\nhearing about the accident is more probable. In response, learned counsel
\nfor the respondent-State submitted that PW-15 was about 13 years of age at
\nthe time of accident. Though his mental faculties were of high order, the
\nfact that he was witnessing before his eyes a carefully planned murder is
\nbound to have created a sense of panic, and disturbance of mental
\ncomposure. Therefore, minor discrepancies in his evidence cannot be a
\nground for discarding his credible, cogent and trustworthy evidence. The
\ntelephonic call was made by unknown person and did not disclose any
\ncognizable offence. Merely because the officer who received the telephone
\nmessage wanted to verify whether any incident had taken place, that cannot
\nbe a ground to hold that the report lodged by the informant PW-15 was hit
\nby Section 162 of the Code. The case of conspiracy has been clearly made
\nout. As conspiracies are always hatched in a secret manner, there cannot be
\nany direct evidence of conspiracy. Accusations, according to her have been
\nestablished by evidence on record and the concurrent findings recorded by
\nthe two courts below should not be interfered, and the appeals should be
\ndismissed.\n<\/p>\n
In order to consider the correctness of conclusions arrived at by the two
\ncourts below, it has to be seen whether evidence of PW-15 has been rightly
\naccepted to be truthful and reliable. So far as PW-15 is concerned, it has
\nto be noted that at the time of occurrence he was about 13 years of age and
\nwas a student. The incident is of October 1990. PW-15 was examined in
\nAugust 1997 i.e. nearly after seven years. It cannot be lost sight of that
\nlong passage of time some times erases the memory and minute details are
\nlost sight of. In this background, it has been stated that if a case is
\nproved perfectly it is argued that it is artificial. If a case has some
\nflaws inevitably because human beings are prone to err, it is argued that
\nit is too imperfect. While, therefore, assessing the evidence one has to
\nkeep realities in view and not adopt a hyper sensitive approach. The so-
\ncalled discrepancies pointed out by learned counsel for the appellants like
\nthe vehicle from which witness saw the approaching bus or with which part
\nof the offending vehicle the cycle was hit are too trifle to affect
\ncredibility of PW’s-15 evidence. Filtering out these minor discrepancies,
\ncream of the evidence remains on which the credibility of the evidence
\nlies. That being so, the conclusions arrived at by the two courts below on
\nevaluation of evidence do not need any interference.\n<\/p>\n
Coming to the plea that the officer did not enquire as to whether the
\naccused was the owner of the vehicle or had a driving licence,
\nsignificantly when the substance of the accusations was put to the accused
\nin examination under Section 313 of the Code, no plea was taken that the
\noffending vehicle did not belong to the accused or that he was not driving.
\nOnly an evasive reply was given that he (accused-Munna) did not know
\ndriving. There is a gulf of difference between saying that he was not
\ndriving the vehicle or was not the owner of the vehicle. Examination under
\nSection 313 of the Code is not an empty formality. The purpose is to bring
\nto the notice of the accused the materials brought on record by the
\nprosecution to substantiate its accusations. An opportunity is granted to
\nthe accused to explain incriminating circumstances against him and have his
\nsay in the background of the evidence brought on record by the prosecution.
\nTherefore, the mere fact that the officer did not enquire as to whether the
\naccused-Munna had a driving licence or not is too insignificant factor to
\ncorrode credibility of the ocular testimony. Further, even if he was not
\nthe owner of the vehicle or did not have a driving licence, it is really of
\nno consequence if he, in fact, drove the vehicle. Evidence on record
\nclearly establishes that he did so.\n<\/p>\n
PW-15 has categorically stated as to how he knew the accused persons and
\ntheir names. In spite of incisive cross- examination, the defence was not
\nable to even water down the said assertion of PW-15. Accusations have been
\nbrought home, as rightly observed by the trial Court and the High Court, by
\nthe prosecution so far as accused Munna is concerned.\n<\/p>\n
Coming to the question whether the message received on telephone would be
\ntreated as the FIR, the D.D. entry (Ex.P.21) shows that unknown person had
\ngiven an information about a vehicle hitting the deceased. In order to
\nconstitute the FIR, the information must reveal commission of an act which
\nis a cognizable offence.\n<\/p>\n
As observed by this Court in Ramsinh Bavaji Jadeja v. State of Gujarat,<\/a>
\n[1994] 2 SCC 685, the question as to at what stage the investigation
\ncommences has to be considered and examined on the facts of each case,
\nespecially, when the information of an alleged cognizable offence has been
\ngiven on telephone. Any telephonic information about commission of a
\ncognizable offence, if any, irrespective of the nature and details of such
\ninformation cannot be treated as first information report. If the
\ntelephonic message is cryptic in nature and the officer in charge, proceeds
\nto the place of occurrence on the basis of that information to find out the
\ndetails of the nature of the offence if any, then it cannot be said that
\nthe information which had been received by him on telephone shall be deemed
\nto be a FIR. The object and purpose of giving such telephonic message is
\nnot to lodge the first information report but to make the officer in charge
\nof the police station to reach the place of occurrence. On the other hand,
\nif the information given on telephone is not cryptic and on the basis of
\nthat information the officer in charge is prima facie satisfied about the
\ncommission of a cognizable offence and he proceeds from the police station
\nafter recording such information to investigate such offence then any
\nstatement made by any person in respect of the said offence including about
\nthe participants shall be deemed to be a statement made by a person to the
\npolice officer in the course of investigation covered by Section 162 of the
\nCode.\n<\/p>\n
On reading of the DD entry (Ex. P. 21) we are of the view that the trial
\nCourt has rightly held that it did not constitute the FIR and therefore the
\nwritten report lodged by PW-15 vide Exhibit P-20 is not hit by Section 162
\nof the Code.\n<\/p>\n
All the three accused presons have been found guilty of offence punishable
\nunder Section 302 read with Section 120B IPC. The conspiracies are not
\nhatched in open, by their nature, they are secretly planned, they can be
\nproved even by circumstantial evidence, the lack of direct evidence
\nrelating to conspiracy has no consequence. (See : E.K. Chandrasenan v.
\nState 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
\nneccessary 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
\nof Bihar v. Parma’s, (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, it would not be necessary for the
\nprosecution to establish, to bring home the charge of conspiracy, that each
\nof the conspirators had the knowledge of what the collaborator would do so,
\nso long as it is known that the collaborator would put the goods or service
\nto an unlawful use. (See : State of Maharashtra v. Som Nath Thapa, JT<\/a>
\n(1996) 4 SC 615).\n<\/p>\n
It was noticed that Sections 120-A and 120-B IPC have brought the law of
\nconspiracy in India in line with English law by making an overt act
\ninessential when the conspiracy is to commit any punishable offence. The
\nmost important ingredient of the offence being the agreement between two or
\nmore persons to do an illegal act. In a case where criminal conspiracy is
\nalleged, the court must inquire whether the two persons are independently
\npursuing the same end or they have come together to pursue the unlawful
\nobject. The former does not render them conspirators but the latter does.
\nFor the offence of conspiracy some kind of physical manifestation of
\nagreement is required to be established. The express agreement need not be
\nproved. The evidence as to the transmission of thoughts sharing the
\nunlawful act is not sufficient. A conspiracy is a continuing offence which
\ncontinues to subsist till it is executed or rescinded or frustrated by
\nchoice of necessity. During its subsistence whenever any one of the
\nconspirators does an act or series of acts, he would he held guilty under
\nSection 120-B of the Indian Penal Code. Decision in Ajay Agarwal v. Union
\nof India and Ors., JT<\/a> (1993) 3 SC 203 may be usefully referred to. It was
\nheld :\n<\/p>\n
xxx                         xxx                        xxx\nxxx\n\n<\/pre>\n
“8…..It is not necessary that each conspirator must know all the details
\nof the scheme nor be a participant at every stage. It is necessary that
\nthey should agree for design or object of the 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 Quinn
\nv. 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.\n<\/p>\n
This 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
\nIndian 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> [1997} 4 SCC 540 the rule was laid
\nas follows : (SCC p. 543 para 9).\n<\/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 Manias and Ors. v. State of Maharashtra,<\/a>
\n[1981] 2 SCC 443, it was held that for an offence under Section 120B IPC,
\nthe prosecution need not necessarily prove that the perpetrators expressly
\nagreed to do or cause to be done the illegal act, the agreement may be
\nproved by necessary implication.”\n<\/p>\n
After referring to some judgments of the United States Supreme Court and of
\nthis Court in Yash Pal Mittal v. State of Punjab,<\/a> [1977] 4 SCC 540 and Ajay
\nAggarwal v. Union of India, [1993] 3 SCC 609 the Court in State of
\nMaharashtra v. Som Nath Thapa,<\/a> [1996] 4 SCC 659 summarized the position of
\nlaw and the requirements to establish the charge of conspiracy, as under :
\n(SCC p. 668, para 24).\n<\/p>\n
“24. The aforesaid decisions, weighty as they are, lead us to conclude that
\nto establish a charge of conspiracy knowledge about indulgence in either an
\nillegal act or a legal act by illegal means is necessary. In some cases,
\nintent of unlawful use being made of the goods or services in question may
\nbe inferred from the knowledge itself. This apart, the prosecution has not
\nto establish that a particular unlawful use was intended, so long as the
\ngoods or service in question could not be put to any lawful use. Finally,
\nwhen the ultimate offence consists of a chain of actions, it would not be
\nnecessary for the prosecution to establish, to bring home the charge of
\nconspiracy, that each of the conspirators had the knowledge of what the
\ncollaborator would do, so long as it is known that the collaborator would
\nput the goods or service to an unlawful use.” (See [2000] 8 SCC page 203
\nState of Kerala v. P. Sugathan and Anr.)<\/a>”\n<\/p>\n
The evidence on record is too scanty and meagre to bring in application of
\nSection 120B IPC. No material has been brought on record so for as the
\nappellant-Damodar is concerned, except that he belonged to the family of
\nBalak Dass. It is also improbable that PW-15 could have heard about the
\nexhortation by accused Balak Dass to run over the vehicle considering the
\ndistance from which the statement is said to have been made and the speed
\nof the vehicle. Merely because accused-Damodar is the son of Balak Dass who
\nit is brought on record had a dispute with the deceased over properties is
\nnot sufficient to establish the charge of conspiracy. That being so, the
\nconviction of all the three appellants under Section 302 read with Section
\n120B IPC cannot be maintained. There is also practically no material to
\nmaintain the conviction of appellant-Balak Dass for offence punishable
\nunder Section 302 read with Section 34 IPC. In the ultimate, the conviction
\nof appellant-Munna under Section 302 IPC is maintained put conviction under
\nSection 302 read with Section 120B IPC is set aside. The life sentence
\nimposed on him with the fine for offence under Section 302 is maintained
\nand he should serve the remaining sentence. Criminal Appeal No. 45\/2002 is
\nallowed to the extent indicated. The appeals filed by accused-Damodar and
\nBalak Dass (Criminal appeals No. 1190\/2001 and 46\/2002 respectively) are
\nallowed and the conviction and sentence are set aside. They be set at
\nliberty forthwith unless required to be in custody for some other case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Damodar vs State Of Rajasthan on 18 September, 2003 Bench: Doraiswamy Raju, Arijit Pasayat CASE NO.: Appeal (crl.) 1190 of 2001 PETITIONER: DAMODAR RESPONDENT: STATE OF RAJASTHAN DATE OF JUDGMENT: 18\/09\/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT: JUDGMENT 2003 Supp(3) SCR 904 The Judgment of the Court was delivered by […]<\/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-221631","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDamodar vs State Of Rajasthan on 18 September, 2003 - Free Judgements of Supreme Court & 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\/damodar-vs-state-of-rajasthan-on-18-september-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Damodar vs State Of Rajasthan on 18 September, 2003 - 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