State v. Sushil) arising out of Case Crime No
Case Details
Neutral Citation No. - 2023:AHC:153712-DB 1 Court No. - 42 Case :- CRIMINAL APPEAL No. - 7215 of 2007 Appellant :- Babita And Others Respondent :- State of U.P. Counsel for Appellant :- Anurag Pathak,Alka Srivastava,Apul Misra,Arvind Kumar Singh,Bal Krishna Yadav,Manoj Kumar Singh,P.K. Singh,Suraj Kumar Singh,Suraj Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Surya Prakash Kesarwani,J. Hon'ble Ms. Nand Prabha Shukla,J. 1. Heard Sri Bal Krishna Yadav, learned Amicus Curiae for the appellants and Sri K.P. Pathak for the State- opposite Party. 2. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been filed against the judgment and order dated 11.10.2007 passed by the Additional Session Judge, Court No.7, Saharanpur in S.T. No.460 of 2004 (State vs. Babita and others) and S.T. No. 227 of 2005 (State vs. Sushil) arising out of Case Crime No. 201 of 2004, under Sections 302/201 and120-B IPC, Police Station Rampur, District Saharanpur, whereby accused appellants have been convicted and sentenced for life imprisonment with fine of Rs. 1000/- for the offence under Section 302/34 IPC and for seven years R.I. with fine of Rs. 500/- for the offence under section 201 IPC. All the sentences were directed to run simultaneously. 3. Briefly stated the facts of the present case are that the at the instance of
Legal Reasoning
P.W.1 Satveer Singh, the First Information Report bearing Case Crime No. 201 of 2004, under Sections 302, 201 and 120B IPC, P.S.- Rampur, Tehsil Nakur, District- Shaharanpur, was registered on 02.07.2004 at 17:45 hours 2 with respect to an incident dated 20.06.2004. The aforesaid FIR was lodged by PW-1 Satveer, son of Atar Singh, resident of Village- Sultanpur, P.S.- Nakur, Saharanpur. He is the brother-in-law of the deceased Nathi Ram. As per FIR version, accused Babita, wife of Nathi Ram has developed some illicit relation with his maternal brother Santosh and the deceased had seen them in objectionable state. The deceased came to know about it and on account of that the accused persons, namely, Babita, Santosh, Sushil and Ratan murdered the deceased Nathi Ram. The deceased was buried in a kachcha room in the house owned and possessed by accused Babita. The dead body of the deceased was recovered on 02.07.2004. Recovery memo dated 02.07.2004 (Exhibit Ka- 3) was prepared in the presence of the witnesses Devendra, Santosh, Subhash Chandra and Babita. This recovery memo has been proved by PW-5 Subhash Chandra and PW-8 Investigating Officer. The weapon used in murdering the deceased Nathi Ram was also recovered at the pointing out of accused Santosh and accused Babita from an almirah in the same room where the dead body of the deceased was found. This recovery memo dated 02.07.2004 (Exhibit Ka-4) was proved having signatures of accused Santosh, Babita, Subhash Chandra and Devendra. This recovery memo has also been proved by PW-5 and PW-8. Dupatta was also recovered from the dead body of the deceased (Exhibit ka- 5). The inquest report was prepared on 02.07.2004 by the Investigating Officer on spot and accused Santosh and accused Babita were taken into police custody for interrogation. Panchnama was prepared on 03.07.2004 having signature of the Panch. Autopsy of the dead body of Nathi Ram was conducted on 03.07.2004. As per post-mortem report, the death was caused due to shock and hemorrhage as a result of ante mortem injuries about 10-14
Legal Reasoning
days ago. Charge sheet was filed on 12.09.2004 against the accused Smt. Babita, wife of deceased Nathi Ram, Santosh, son of Mahaveer and Ratan son of Multaan under Sections 302, 201 and 120B IPC. A supplementary charge sheet dated 19.03.2004 was filed against accused Sushil, under Sections 302, 201 and 120B IPC. 3 4. Prosecution examined eight witnesses. PW-1 is the informant and deceased's sister was married with him. PW-2 Vijendra Singh, whose house is in front of the house of the accused Babita and who had some dispute with the accused Babita; has last seen the deceased with the accused Santosh and the accused Ratan. PW-3 Sheodan Singh is the Constable, who carried the body of the deceased for post-mortem. PW-4 is the second Investigating Officer. PW-5 is the witness of recovery of dead body of the deceased from kachcha room of accused Babita. PW-6, Dr. K.K. Mehta has conducted the post-mortem, PW-7 Prem Pal Singh is the Constable, who proved the Chik FIR. PW-8 Rajendra Pal is first Investigating Officer. PW-9, Sujeet Kumar is the Investigating Officer, who has conducted part of investigation. 5. The statement of the accused Babita, Santosh, Sushil and Ratan Singh were recorded under Section 313 Cr.P.C. Accused Babita stated in the typed question No. 12 that dead body of the deceased was neither recovered from her possession nor she is owner of the place from where the dead body was recovered and she has not got recovered the weapons and dead body of the deceased. She has been falsely implicated under conspiracy and false recovery has been shown against her, to usurp the property succeeded by her son Ayush of whom she is guardian as per will dated 27.04.2004 executed by his grand- mother. She stated that she is innocent and she has been falsely implicated. Ratan has stated in reply of Question No. 11 that he has been falsely implicated because of being relative of the accused Babita. Santosh has stated in reply to Question No. 11 that he has been falsely implicated because of being relative of the accused Babita. Sushil has stated in reply to Question No. 11 that he has been falsely implicated because of being relative of the accused Babita. 6. The prosecution has proved the FIR and recovery memo. PW-6 Doctor has proved the post-mortem report and has expressed opinion that the deceased Nathi Ram had possibly died in the night of 20.06.2006 and 21.06.2004 on account of ante-mortem injuries, by sharp-edged iron weapon 4 like "Dav". The evidence of P.W.1 and P.W.2 who last seen the deceased Nathi Ram with the accused Santosh and Ratan, are consistent. The accused Sushil is the real brother of the accused Babita, the accused Santosh is the maternal brother of the accused Babita, the deceased is the husband of the accused Babita, the informant Satveer is the brother-in-law of the deceased Nathi Ram, PW-2 Vijendra Singh is the neighbourer of the deceased Nathi Ram/accused Babita. The evidence of the prosecution witnesses PW-1 and PW-2, who last seen the deceased with the accused Santosh and the accused Ratan, is consistent. So far as the accused Sushil is concerned, PW-1 in his cross- examination has stated that the accused Sushil is not aware about the illicit relationship between Santosh and the accused Babita and it was only known to the accused Ratan which was told by the deceased Nathi Ram to him (PW-1). 7. Although specific motive was shown by the informant against the accused Babita, Santosh and the accused Ratan Singh but no motive has been shown against the accused Sushil. Even there is no slightest suggestion by any of the prosecution witnesses, which may give any indication of any motive of the accused Sushil for murder of the deceased Nathi Ram. Sushil is the real brother of the accused Babita and brother-in-law of the deceased. In his cross- examination PW-1 who is the informant and husband of the deceased’s sister, has stated that the accused Sushil - brother of the accused Babita had no knowledge of illicit relation of the accused Babita with the accused Santosh, as told by the deceased Nathi to him. He also stated in his cross-examination that his wife is doing agriculture on the land (11.5 bighas) of minor Aayush son of the accused Babita which he (minor Aayush) had received under the Will of his grandmother, he is keeping minor Aayush with him but the daughter has been left at her maternal uncle’ house. Thus, as per own statement in cross-examination the PW-2 is taking benefit of the aforesaid agricultural land of Aayush minor son of the accused Babita. He also admitted that he has never seen the accused Babita with any other man but the deceased had told him about the bad character of the accused Babita. He also stated in 5 his cross-examination that he has never seen the accused Babita and the deceased Nathi Ram fighting. 8. It has been proved beyond reasonable doubt by the prosecution that dead body of the deceased and the weapon used in the alleged murder were recovered on the pointing out of the accused Babita and the accused Santosh from the room owned and possessed by the accused Babita. Under the circumstances, as the burden of proof was heavily upon the accused Babita and accused Santosh to explain the recovery of the dead body of the deceased Nathi Ram and the weapon used in the murder of the deceased but they completely failed to explain or could not discharge the burden under Section 106 Evidence Act. 9. From the consistent evidences on record, we find that the findings recorded by the learned Sessions Court to convict the accused Babita and the accused Santosh under Sections 302/34 and 201 IPC does not suffer from any perversity or error of law. 10. However, neither any motive was alleged nor established against the accused Sushil nor he was aware of the alleged illicit relationship between the accused Babita and the accused Santosh, as has been admitted by the PW-1 also. There is no evidence of his participation in murder of the deceased Nathi Ram. Under the circumstances, the conviction of accused Sushil under Sections 302/34 and 201, 120B IPC, is totally groundless. 11. In State vs. Nalini and others [(1999) 5 SCC 253 (Para-583)], Hon’ble Supreme Court summarised some broad principles governing the law of conspiracy, as under: “583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles. 1. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime 6 and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed. 2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder. 3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. 4. Conspirators may, for example, be enrolled in a chain A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. 5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. 6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. 7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By 7 means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. 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. As observed by Judge Learned Hand that "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". 8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravaman of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. 9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies. 10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. 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 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.” 12. As per plain reading of Section 120-B I.P.C. and also in view of law laid down by Hon’ble Supreme Court in the case of Nalini (supra), to bring the charges of conspiracy within the ambit of Section 120-B I.P.C., it is necessary to establish that there was an agreement between the parties for doing an unlawful act. A man may join conspiracy by word or deed. However, creating 8 responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. 13. In the present set of facts and evidences as already discussed above, neither any motive was imputed to the accused Sushil nor his participation in the crime could be proved. Even the PW-1 in his cross-examination has admitted that the accused Sushil was not having any knowledge of any illicit relationship between the accused Babita and the accused Santosh and this fact was told to him by the deceased Nathi Ram. Even the PW-2, who admittedly had some disputes with the accused Babita and allegedly resides in front of the house of the accused Babita has stated that Daroga Ji had taken his statement after two months on 30.06.2004 and he had not disclosed the information to any officer, oral or in writing that the accused persons were carrying the deceased Nathi Ram. Thus, it is highly risky to rely upon the evidence of PW- 2 who claims himself to be residing in front of the house of the accused Babita and was present at the time of recovery of body of the deceased from the house of the accused Babita and yet he did not tell either Investigating Officer or to any other officer either in writing or orally that on the date of occurrence of offence, the accused Sushil was accompanying the deceased as seen by him. Under the circumstances, in the absence of any motive and corroborative evidence, participation of the accused Sushil in commission of offence in question is highly doubtful and unproved. 14. In State through Superintendent of Police, CBI/SIT, Vs. Nalini and others, (1999) 5 SCC, 253, the Hon'ble Apex Court held that : "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 as 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". 9 15. In the absence of any evidence whether direct or substantial, the real brother of accused Babita cannot be held guilty of offence under Sections 302/34 and 201 IPC. 16. For the reasons above stated, the appeal of the appellant No. 1 Babita (wife of late Nathi Ram), resident of Village-Harpal, P.S. Rampur, District Saharanpur and the appeal of the appellant No. 2 Santosh (son of Mahaveer), resident of Village- Humayupur, P.S. Hastinapur, District Meerut, is dismissed. Their conviction and sentences awarded by the impugned judgment and order dated 11.10.2007 in Sessions Trial No. 460/2004 (State Vs. Babita and Others) passed by Additional Sessions Court No. 7, Saharanpur, are confirmed. 17. The conviction of accused appellant No. 3 Sushil by the aforesaid impugned judgment and order dated 11.10.2007 in Sessions Trial No. 227 of 2005 (State vs. Sushil), is hereby set aside and the accused appellant No. 3 Sushil is acquitted of the charges. He is on bail. His bail bonds are cancelled. He need not to surrender. The appeal of the accused appellant No.3 Sushil is, thus, allowed. 18. From perusal of the record, it appears that the appellant No. 1 Babita and appellant No. 2 Santosh are on bail. Their bail bonds are cancelled and sureties are discharged. They are directed to surrender forthwith to serve remaining part of sentence in terms of the impugned judgment and order dated 11.10.2007 passed by learned trial Court. C.J.M. concerned is also directed to take them into custody and send them to jail to serve out the sentence awarded by the trial court and affirmed by us. 19. Office is directed to transmit the certified copy of this judgement and order passed by this Court for necessary information and compliance. It is further directed that the original record of the case be returned forthwith which shall be kept safely by the trial Court. Order Date :- 31.07.2023 Monika Digitally signed by :- MONIKA KESARWANI High Court of Judicature at Allahabad