SHARMA, J. - (1.) ON July 23, 1998 around 8 A. M. Accused Mohsin inflicted Gupti blows on the chest of Javed Iqbal and killed him. Mohsin was convicted and sentenced by learned Sessions Judge Tonk under Section 302 IPC vide judgment dated January 25, 2001 to suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer two months imprisonment. Accused Mohsin however did not choose to assail the said judgment for the reasons best known to him. Mohammed Zahid. Nasib and Sayed Mussavir Shah, the appellants herein were also tried alongwith Mohsin before the learned trial Judge for having conspired the killing of Javed Iqbal. Learned Sessions Judge found the appellants guilty and convicted them under sections 302 read with section 120 B IPC and sentenced each of them to undergo imprisonment for life and fine of Rs. 1000/- in default to suffer imprisonment for two months. The three appellants have called in question the said finding in these appeals.
(2.) IT is the prosecution case that on July 23, 1998 informant Mateen Adil (PW. 1) submitted a written report (Ex. P. 1) at Police Station Kotwali Tonk to the effect that on the said day around 8 AM he saw a person inflicting blows with Gupti on the chest of Javed Iqbal and fleeing away. When the informant reached near the injured he told the informant that name of assailant was Mohsin. Injured Javed Iqbal was removed to the Hospital where he was declared dead. On that report case under sections 302 and 120b IPC was registered and investigation commenced. Autopsy on the dead body was performed, statements of witnesses were recorded and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Tonk. Charges under sections 302, 177 and 120b IPC were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 36 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Death of Javed Iqbal was undeniably homicidal in nature. According to post mortem report (Ex. P. 61) following ante mortem injuries were found on dead body:- 1. Stab wound obliquely placed directing downwards and medially size 3'' x 1'' in upper 1'' part and 3rd in its remaining part x thoracre cavity deep. Having acute angle at both ends Lt. upper chest ateriorly (outer part) medial end is 2'' above Lt. nipple. 2. Stab wound obliquely placed curved with clean cut margin acute angle at both ends direction is downwards and medially size is 1 1/4'' x 1/2'' thoracie abdominal cavity deep present on Rt. lower chest 8'' below Rt. nipple and 1'' outer to Rt. mammalary line. 3. Incised wound obliquely placed occipital with clean cut margins with both corners having acute angle. Direction is downwards and outwards size is 1 1/2 x 1/2 x muscle deep present in the mid epigastric rigor on the Rt. side medial end is touching mid line. According to Dr. V. K. Nigam (PW. 28) the cause of death was hemorrhagic shock as a result of injuries to vital organs lung and liver leading to excessive bleeding. Learned counsel for the appellant canvassed that the prosecution failed to prove that the appellants were party to the conspiracy. Since the witnesses Iqbal Hussain (PW. 11) Abdul Saydd (PW. 14) and Mumtaz Hussain (PW. 15) did not support the prosecution case, it could not be proved that accused Mohsin stayed in the house of appellant Sayed Musavvir Shah. Learned Public Prosecutor however supported the impugned judgment and prayed to dismiss the appeals. We have pondered over the submissions and scanned the impugned judgment as well as other material on record. Witness Iqbal Hussain (PW. 11) Abdul Sayed (PW. 14) and Mumtaz Hussain (PW. 15) who were examined by the prosecution to establish conspiracy between Mohsin and the appellants, did not support the prosecution story. Learned trial Judge in para 18 of the impugned judgment took notice of this fact thus- ******
(3.) EVIDENTLY finding of conviction and sentence of the appellants is based on surmises and conjectures. It is settled law that for an offence under Section 120b IPC, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to do be done the illegal act. The agreement may be proved by necessary implication. Section 120a of the IPC provides that when two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by alleging be illegal means such an agreement is designated a criminal conspiracy. Section 120b is the Penal Section. Direct evidence in criminal conspiracy is seldom available and even when available, it will be tainted, being that if an accomplice and would require corroboration. Generally a conspiracy is a matter of the inference by circumstantial evidence. Their Lordships of the Supreme Court had occasion to analyse sections 120a and 20b of the Indian Penal Code in State of (NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600 ). We deem it appropriate to incorporate paras 85, 87, 89, 91, 93, 94, 100 and 113 of the said judgment wherein sections 120-A and 120-B have been elaborately considered- ``85. As conspiracy is the primary charge against the accused, we shall now advert to the law of conspiracy its definition, essential features and proof. Section 120-A of IPC defines criminal conspiracy. It says, ``when two or more persons agree to do or cause to be done (i) an illegal act or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120-B prescribes the punishment to be imposed on a party to a criminal conspiracy. As pointed out by Subba Rao, J in Major E. G. Barsay vs. State of Bombay (AIR 1961 SC 1762): ``the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal actagreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. '' 86. Under section 43 of the IPC, an act would be illegal if it is an offence or if it is prohibited by law. Section 120-A and 120-B were brought on the statute book by way of amendment to IPC in 1913. The Statement of Objects and Reasons to the amending Act reveals that the underlying purpose was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. This definition is almost similar to the definition of conspiracy, which we find in Halsbury's Laws of England. The definition given therein is: ``conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied. . and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. '' 87. In America, the concept of criminal conspiracy is not different. In American Jurisprudence, 2nd Edn. , Vol. 16, Page 129, the following definition of conspiracy is given: ``a conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful. . . The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy. '' 91. In Yashpal Mittal vs. State of Punjab (1977 (4) SCC 540), Goswami, J. speaking for a three-Judge Bench analysed the legal position relating to criminal conspiracy. At pages 610-611, the learned Judge observed that ``the very agreement, the concert or league is the ingredient of the offence,'' and that ``it is not necessary that all the conspirators must know each and every detail of the conspiracy''. It was then observed that ``there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators. '' 93. In State of H. P. vs. Krishan Lal Pradhan (1987 (2) SCC page 17), it was reiterated that every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts. 94. In the case of State vs. Nalini (1999 (5) SCC 253), S. S. M. Quadri, J. after a survey of case law made the following pertinent observations: (at paragraph 662 ). ``in reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in an collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy, some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. 100. Lord Bridge in R. vs. Anderson (1985 (2) All E. R. 961) aptly said that the evidence from which a jury may inter a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR 1945 PC 140), the Privy Council warned that in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. ``a co-defendant in a conspiracy trial'', observed Jackson, J. ``occupies an uneasy seat'' and it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. '' (vide Alvin Krumlewitch vs. United States of America (93 L. Ed. 790 ). In Nalini's case. Wadhwa, J pointed out. at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that ``there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. '' The pertinent observation of Judge Hand in U. S. vs. Faleone (109 F. 2 d. 579) was referred to; ``this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders. '' At paragraph 518. Wadhwa, J. pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows: ``one who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime. '' 113. It may be noted that by the 1977 Act, the offence of conspiracy at common law was abolished and a statutory definition of `conspiracy to comit the offence' was enacted. The provision that was interpreted by the House of Lords is not in pari materia with the provision in the Indian Penal Code. However, one clarification is needed. If there is proof to the effect that the accused played a role, attended to certain things or took steps consistent with the common design underlying the conspiracy, that will go a long way in establishing the complicity of the accused, though it is not a legal requirement that the conspirator should do any particular act beyond the agreement to commit the offence. In the instant matter we find that the prosecution could not prove that the appellants had ever conspired with Mohsin to kill Javed Iqbal. Neither direct evidence is available nor the conspiracy between the appellants and Mohsin can be inferred by necessary implication. In such a situation the impugned finding of the learned trial Judge qua the appellants is not sustainable and we accordingly quash it. ;