CASE NO.: Appeal (crl.) 744 of 2008 PETITIONER: YOGESH @ SACHIN JAGDISH JOSHI RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 28/04/2008 BENCH: S. B. SINHA & D.K. JAIN JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 744 OF 2008
Arising Out of S.L.P. (Criminal) No.5514 of 2007
WITH
CRIMINAL APPEAL NO. 745 OF 2008
[Arising out of S.L.P. (Criminal) No.5515 of 2007]
D.K. JAIN, J.:
Leave granted.
2. These two appeals are directed against orders dated 23rd
June, 2006 and 19th September, 2006 passed by the High
Court of Judicature at Bombay in Criminal Revision
Application No. 288 of 2005 and in Criminal Writ Petition
No.1884 of 2006 respectively. By the first order, the High
Court has repelled the challenge made to order dated 23rd
March, 2005, in Criminal Appeal No.83 of 2004, whereby the
Sessions Judge, Satara had affirmed the order passed by the
Juvenile Justice Board, rejecting the application filed by the
appellant under Section 227 of the Code of Criminal
Procedure, 1973 (for short “the Code”) for discharge. By the
latter order, another Single Judge of the High Court has
dismissed the writ petition preferred by the appellant, seeking
quashing of order dated 23rd March, 2005.
3. The facts giving rise to the present appeals lie in a
narrow compass and centre around a criminal conspiracy,
allegedly hatched by the family members of the appellant to
murder the deceased, Kunal. The case of the prosecution as
per the charge-sheet is that in the month of March 1999,
deceased Kunal organised an entertainment show, sponsored
by the father of the appellant. During the event, the deceased
was introduced to the sister of the appellant, Hema. The
acquaintance blossomed into love between the two. Fearing
that there may be opposition to their close relationship from
their family members, they eloped and got married on 29th
May, 2000. Appellant’s father lodged a complaint alleging that
the deceased had kidnapped his daughter. The complainant,
namely, the father of the deceased, also reported the matter to
the Pune Police.
4. Sometime in June, 2000, Kunal contacted his father and
informed him that he was at Gauhati with Hema. Thereupon,
the complainant and his wife brought Kunal and Hema to
Mumbai. On persuasion by the complainant and his wife,
Hema agreed to return and stay with her parents and the
marriage between Kunal and Hema is stated to have been
annulled. In December, the complainant filed complaints with
the S.P., Satara and the Additional Commissioner of Police,
Pune against the father of the appellant alleging that he had
abused him over the telephone. The complainant also alleged
that even thereafter, threatening calls were made by the
appellant, his sister, Hema and father. However, the things
seem to have settled down with the intervention of the
Advocate of the complainant.
5. Thereafter, Kunal was engaged to another girl and the
wedding was scheduled for 30th November, 2001. On 21st
April, 2001, the deceased (Kunal) left Panchgani (where he was
living with the parents) for Mahabaleshwar in his maruti car.
At about 8:30 p.m., a taxi-driver informed the complainant
that Kunal was lying in a pool of blood on Mahabaleshwar
road. The complainant rushed to the spot and took his son in
an injured condition to the hospital where he was declared
brought dead. The complainant lodged an F.I.R at
Mahabaleshwar Police Station against unknown persons and
an offence was registered under Section 302 of the IPC.
However, on the next day, the complainant levelled allegation
that since marriage of Kunal had been fixed with another girl,
the appellant and his family members had developed a grudge
and had, therefore, hatched a conspiracy with co-accused
Umesh, Suresh, Bhavarlal Sharma, Captain Sharma to
murder Kunal.
6. On completion of investigation, charge-sheet was filed
against the appellant before the Juvenile Court, Satara, being
below 18 years of age, and against fifteen other persons, which
included his father (A-1), mother (A-2), sister (A-4), a family
friend (A-11), manager of his father (A-12), in Sessions Court,
Satara. All of them have been arraigned as members to the
conspiracy to murder Kunal. The appellant, herein, and
accused A-1, A-2, A-4 to A-7, A-11 and A-12 have been
prosecuted for offences under Section 302 and 120B of the
Indian Penal Code, 1860 (for short “the I.P.C.”), whereas
accused A-7 to A-10 and A-13 to A-16 have been prosecuted
for offences under Section 302 read with Section 120B and
under the Arms Act.
7. The appellant filed an application for discharge before the
Juvenile Justice Board, under Section 227 of the Code. The
Juvenile Justice Board by order dated 1st October, 2004,
rejected the said application. Being aggrieved by the said
order, the appellant preferred a criminal appeal before the
Sessions Judge, Satara. As noted above, the said appeal was
dismissed vide order dated 23rd March, 2005. Still aggrieved,
the appellant moved a revision application before the High
Court. Vide order dated 23rd June, 2006, the High Court
dismissed the criminal revision.
8. It appears that the mother (A-2), sister (A-4), a family
friend (A-11) and the manager of appellant’s father (A-12) had
also moved applications under Section 227 of the Code before
the Sessions Judge, Satara for discharge, which were
dismissed by virtue of orders dated 16th January, 2006 and 7th
October, 2003. Both these orders were challenged by them by
means of two Criminal Writ Petitions (Nos.1283 and 1284 of
2006). Both the petitions were allowed by the then Chief
Justice of the High Court vide a common order dated 7th July,
2006. Inter-alia, observing that the circumstances highlighted
by the prosecution, even if accepted in entirety, only created a
suspicion of motive, these were not sufficient to make out a
case for conviction of the accused and some suspicion or
motive cannot serve as a sufficient ground for framing of
charge against them. Accordingly, all the four
accused/petitioners were discharged.
9. Emboldened by the said order, on 4th August, 2006, the
appellant filed a Criminal Writ Petition (No.1884 of 2006)
under Article 227 of the Constitution read with Section 482 of
the Code for quashing of aforenoted order dated 23rd March,
2005, passed by the Sessions Judge, Satara and for discharge
of the charges framed under Section 302 read with Section
120B of the I.P.C. Expressing surprise over the fact that this
petition had been filed though the order impugned in the
petition stood confirmed on dismissal of criminal revision on
23rd June, 2006, the learned Judge rejected the plea of the
appellant that in the light of order dated 7th July, 2006, in the
case of co-accused, by reason of parity, he was also entitled to
be discharged. Inter-alia, observing that earlier order dated
23rd June, 2006 in the case of the appellant, which was
certainly relevant for deciding the Criminal Writ Petitions
No.1283 & 1284 of 2006, had not been noticed in order dated
7th July, 2006 (by the Chief Justice), vide order dated 19th
September, 2006, the learned Judge dismissed the petition.
As noted above, both the orders, dated 23rd June, 2006 and
19th September, 2006 are challenged in these two appeals.
10. At this juncture, two other significant subsequent
developments deserve to be noted. In the first place, a Special
Leave Petition, preferred by the State against order of the High
Court dated 7th July, 2006, discharging accused Nos.2, 4, 11
& 12, was dismissed on 30th April, 2007. Secondly, relying on
order dated 7th July, 2006, the father (A-1) of the appellant,
termed as the main accused in the charge-sheet, filed an
application before the Sessions Judge for discharge from all
the charges. Taking note of the said order passed by the High
Court, and inter-alia, observing that apart from the fact that
the alleged threats are vague and are inadequate to connect
the said accused with the crime, vide order dated 14th May,
2007, the Sessions Judge came to the conclusion that there
was absolutely no material on the basis whereof a reasonable
likelihood of the said accused being convicted could be
predicted. Accordingly, he has discharged the said accused.
Thus, as on date, the father (A-1), the mother (A-2), the sister
(A-4) of the appellant and his two other associates (A-11 & A-
12) stand discharged of the offences for which they were
charged, namely, Sections 302 and 120B of I.P.C.
11. Mr. Ravi Shanker Prasad, learned senior counsel
appearing for the appellant, submitted that in the charge-
sheet there is no overt act attributed to the appellant
regarding actual murder and the threats allegedly given by his
family members and friends to the family of the deceased are
not sufficient to infer a criminal conspiracy, particularly when,
the disputes between the two families had already been
compromised much prior to the incident. Learned counsel
submitted that accepting the prosecution case as it is, there is
absolutely no material on record to frame a charge against the
appellant for offences under Sections 302 and Section 120B of
the I.P.C. It was also urged that other members of the family,
namely, the mother and sister of the appellant along with two
other accused having been discharged by the High Court and
similarly the father of the appellant having been discharged by
the Sessions Judge, there was no sufficient ground to proceed
against the appellant for the said offences. In support of the
proposition that a mere suspicion is not sufficient to hold that
there is sufficient ground to proceed against the accused,
learned counsel placed reliance on the decision of this Court
in Union of India Vs. Prafulla Kumar Samal & Anr.
12. Mr. Ravindra Keshavrao Adsure, learned counsel
appearing for the State, on the other hand, submitted that
there is ample material on record to show a strong motive for
commission of crime, namely, Kunal’s proposal to get married
to another girl after an affair with Hema (A-4), which was
obviously, not liked by the appellant and his family members.
It was thus, pleaded that the High Court was justified in
dismissing appellant’s petitions for discharge.
13. Before adverting to the rival submissions, we may briefly
notice the scope and ambit of powers of the Trial Judge under
Section 227 of the Code.
14. Chapter XVIII of the Code lays down the procedure for
trial before the Court of Sessions, pursuant to an order of
commitment under Section 209 of the Code. Section 227
contemplates the circumstances whereunder there could be a
discharge of an accused at a stage anterior in point of time to
framing of charge under Section 228. It provides that upon
consideration of the record of the case, the documents
submitted with the police report and after hearing the accused
and the prosecution, the Court is expected, nay bound to
decide whether there is “sufficient ground” to proceed against
the accused and as a consequence thereof either discharge the
accused or proceed to frame charge against him.
15. It is trite that the words “not sufficient ground for
proceeding against the accused” appearing in the Section
postulate exercise of judicial mind on the part of the Judge to
the facts of the case in order to determine whether a case for
trial has been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift and weigh
the material for the limited purpose of finding out whether or
not a prima facie case against the accused has been made out.
The test to determine a prima facie case depends upon the
facts of each case and in this regard it is neither feasible nor
desirable to lay down a rule of universal application. By and
large, however, if two views are equally possible and the Judge
is satisfied that the evidence produced before him gives rise to
suspicion only as distinguished from grave suspicion, he will
be fully within his right to discharge the accused. At this
stage, he is not to see as to whether the trial will end in
conviction or not. The broad test to be applied is whether the
materials on record, if unrebutted, makes a conviction
reasonably possible. [See: State of Bihar Vs. Ramesh
Singh and Prafulla Kumar Samal (supra)]
16. In the light of the aforenoted principles, we may now
consider whether or not in the present case the High Court
was justified in declining to discharge the appellant. However,
before adverting to the circumstances, relied upon by the
prosecution in support of its primary charge that a conspiracy
had been hatched to eliminate Kunal, the essential features of
the offence of conspiracy need to be noticed
17. Section 120A of I.P.C. defines criminal conspiracy. The
section reads as under:
“120A. Definition of criminal
conspiracy.When two or more persons
agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal
means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement except an
agreement to commit an offence shall
amount to a criminal conspiracy unless
some act besides the agreement is done
by one or more parties to such agreement
in pursuance thereof.
Explanation.It is immaterial whether
the illegal act is the ultimate object of
such agreement, or is merely incidental
to that object.”
Section 120B of I.P.C. provides for punishment for an
offence of criminal conspiracy.
18. The basic ingredients of the offence of criminal
conspiracy are: (i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be done
either (a) an illegal act; or (b) an act which is not illegal in itself
but is done by illegal means. It is, therefore, plain that
meeting of minds of two or more persons for doing or causing
to be done an illegal act or an act by illegal means is sine qua
non of criminal conspiracy. Yet, as observed by this Court in
Shivnarayan Laxminarayan Joshi & Ors. Vs. State of
Maharashtra , a conspiracy is always hatched in secrecy and
it is impossible to adduce direct evidence of the common
intention of the conspirators. Therefore, the meeting of minds
of the conspirators can be inferred from the circumstances
proved by the prosecution, if such inference is possible.
19. In Mohammad Usman Mohammad Hussain Maniyar
& Ors. Vs. State of Maharashtra , it was observed that for
an offence under Section 120B, the prosecution need not
necessarily prove that the perpetrators expressly agree to do
and/or cause to be done the illegal act, the agreement may be
proved by necessary implication.
20. In Kehar Singh & Ors. Vs. State (Delhi
Administration) , the gist of the offence of the conspiracy has
been brought out succinctly in the following words:
“The gist of the offence of conspiracy then
lies, not in doing the act, or effecting the
purpose for which the conspiracy is
formed, nor in attempting to do them, nor
in inciting others to do them, but in the
forming of the scheme or agreement
between the parties. Agreement is
essential. Mere knowledge, or even
discussion, of the plan is not, per se,
enough.”
21. Again in State of Maharashtra & Ors. Vs. Som Nath
Thapa & Ors. , a three-Judge Bench of this Court held that
to establish a charge of conspiracy knowledge about
indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of unlawful use
being made of the goods or services in question may be
inferred from the knowledge itself. This apart, the prosecution
has not to establish that a particular unlawful use was
intended, so long as the goods or service in question could not
be put to any lawful use.
22. More recently, in State (NCT of Delhi) Vs. Navjot
Sandhu @ Afsan Guru , making exhaustive reference to
several decisions on the point, including in State Through
Superintendent of Police, CBI/SIT Vs. Nalini & Ors. ,
Venkatarama Reddi, J. observed thus:
“Mostly, the conspiracies are proved by
the circumstantial evidence, as the
conspiracy is seldom an open affair.
Usually both the existence of the
conspiracy and its objects have to be
inferred from the circumstances and the
conduct of the accused (per Wadhwa, J.
in Nalini’s case at page 516). The well
known rule governing circumstantial
evidence is that each and every
incriminating circumstance must be
clearly established by reliable evidence
and “the circumstances proved must form
a chain of events from which the only
irresistible conclusion about the guilt of
the accused can be safely drawn and no
other hypothesis against the guilt is
possible.” (Tanviben Pankajkumar case ,
SCC page 185, para 45). G.N. Ray, J. in
Tanibeert Pankajkumar observed that this
Court should not allow the suspicion to
take the place of legal proof.”
23. Thus, it is manifest that the meeting of minds of two or
more persons for doing an illegal act or an act by illegal means
is sine qua non of the criminal conspiracy but it may not be
possible to prove the agreement between them by direct proof.
Nevertheless, existence of the conspiracy and its objective can
be inferred from the surrounding circumstances and the
conduct of the accused. But the incriminating circumstances
must form a chain of events from which a conclusion about
the guilt of the accused could be drawn. It is well settled that
an offence of conspiracy is a substantive offence and renders
the mere agreement to commit an offence punishable even if
an offence does not take place pursuant to the illegal
agreement.
24. Bearing in mind the essential features of the offence of
criminal conspiracy, enumerated above, we may advert to the
facts of the instant case. The relevant portion of the charge-
sheet filed against all the accused reads as follows:
“Though son of the complainant Kunal
Parihar got married with accused No.4
Hema Joshi, his family again arranged for
another marriage with one Meenal of
Baroda on 24.2.2001. Engagement
ceremony took place and date of marriage
was fixed as 30.11.2001. this fact came
to the knowledge of the accused
No.1,2,3,4 & 5 and 11 & 12. Therefore,
in order to teach a lesson to the
complainant they hatch conspiracy to kill
his only son, Kunal. Accordingly accused
No.1 contacted accused No.6 Suresh
Jhajara and further informed him the
complainant and his son should be
taught a lesson as Kunal Parihar
betrayed him. Hence should be taught a
lesson and further asked to carry out
future plan.
Accused No.6, contacted accused No.7
and included him in the aforesaid
conspiracy. Accused No.1 to 4, contacted
accused No.16, through accused No.6
and 7, accused No.16 pending is a
notorious criminal. Criminal cases are
pending against him in the District Court
of Pune. In the offence regarding body,
accused No.7 contacted him through
witnesses Atul Lohar in order to carry out
the aforesaid plan. Accused No.1 gave
Rs.80,000/- to accused No.7 via accused
No.6. Accused No.16, in order to cause
hurt to Kunal introduced accused No.8,
9, 10, 13, 14, 15 to accused No.7.
Accused No.7 asked accused No.8, 9, 10,
13, 14, 15 to joint the aforesaid
conspiracy and in order to carry out the
aforesaid conspiracy successfully accused
No.7 purchased one Maruti Car No.MH-
14 D-3027 from witness Afzal Khan
Ibrahim Khan, resident of Dehu Road
and also Motor Cycle No.MH-14-M-5786.
By using the aforesaid vehicles accused
No.7 to 10 and 13 to 15 have committed
ghastly murder of Kunal. In order to
carry out the aforesaid conspiracy
successfully accused No.7 has used
revolver, khukri, sickle, sword and iron
bar and supplied it to accused No.8 to 10
and from 13 to 15, by using the aforesaid
weapons the aforesaid persons have
assaulted Kunal Parihar by which he
sustained grave injuries and ultimately
died. Hence accused No.1, 2, 3, 4, 5, 6,
7, 11 and 12 have charged been under
Sections 302, 120B IPC and accused
No.7, 8, 9, 10, 13, 14, 15 and 16 have
charged u/s 302 read with 120B IPC and
under Arms Act Section 3 and 25.”
[Emphasis supplied]
25. Thus, according to the prosecution version, when
accused, A-1 to A-5, A-11 and A-12 learnt about the marriage
of Kunal with some other girl, they hatched a conspiracy to
teach a lesson to the father of Kunal, the deceased. In
furtherance thereof, accused A-1 contacted one of the
assassins to kill Kunal. It is alleged that accused A-1 to A-4
also contacted accused A-16, a notorious criminal. In other
words, the gravamen of the accusation by the prosecution is
that it is accused A-1 to A-5, A-11 and A-12 who had hatched
the conspiracy; acted in concert to give effect to their plan to
get Kunal murdered and in pursuance of the aforesaid
criminal conspiracy, the other accused facilitated commission
of the said crime. It is common ground that the case of the
prosecution is based on the circumstantial evidence, namely,
threatening calls from the side of the accused to the
complainant, his family and the earlier relationship between
the deceased and accused No.4. From the material on record,
it is manifestly clear that it was the family members of the
appellant, one of their employees and a friend who allegedly
had all entered into an agreement to eliminate the deceased.
However, as noted above, accused A-1, A-2, A-4, A-11 and
A-12 already stand discharged from the charges framed
against them under Sections 120B and 302 I.P.C vide orders
dated 7th July, 2006 and 14th May, 2007, passed by the High
Court and the Sessions Judge respectively. While discharging
the said accused, both the courts have come to the conclusion
that there is no material on record to show that they had
hatched a conspiracy to commit murder of Kunal. Thus, the
stand of the prosecution to the effect that the parents, sister
and friends of the appellants had entered into a criminal
conspiracy stands rejected by virtue of the said orders of
discharge. Furthermore, in its order dated 7th July, 2006, the
High Court has opined that the circumstances, relied upon by
the prosecution, even if accepted in its entirety, only create a
suspicion of motive, which is not sufficient to bring home an
offence of murder. As noted above, State’s petition for special
leave against the said judgment has already been dismissed.
26. We are, therefore, of the view that in the light of the
subsequent events, namely, the orders of the High Court dated
7th July, 2006 in Criminal Writ Petitions No. 1283 & 1284 of
2006, discharging appellant’s mother, sister and two close
associates, accused Nos.2, 4, 11 and 12 respectively; order
dated 30th April, 2007 passed by this Court dismissing the
Special Leave Petition preferred by the State against order
dated 7th July, 2006 and order dated 14th May, 2007 passed
by the Sessions Judge, Satara, discharging the father (A-1) of
the appellant, stated to be the mastermind behind the entire
conspiracy, for offences under Sections 120B and 302 I.P.C.,
on same set of circumstances and accusations, no sufficient
ground survives to proceed against the appellant for the
aforementioned offences.
27. For the reasons aforesaid, we are constrained to allow the
appeals. Consequently, the impugned orders are set aside and
the appellant is discharged from the charges levelled against
him in the charge-sheet.