Balla @ Farhat vs The State Of Madhya Pradesh

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.2256 of 2011

BALLA @ FARHAT … Appellant(s)

VERSUS

STATE OF MADHYA PRADESH … Respondent(s)

WITH

Criminal Appeal No.2257 of 2011

J U D G M E N T

ABHAY S.OKA, J.

1. In these two appeals, we are dealing only with accused

no.5-Balla @ Farhat, accused No.6-Habib and accused No.7-

Imran.

2. It is not in dispute that appellant no.1 - Habib in

Criminal Appeal No.2257 of 2011 is no more and, therefore,

the said appeal insofar as appellant no.1-Habib is concerned

stands abated.

Signature Not Verified

3. We may refer to the prosecution case in brief. There Digitally signed by Anita Malhotra Date: 2023.08.18 16:52:58 IST Reason: were twelve accused and out of the twelve, it is alleged that

Criminal Appeal No.2256 of 2011 Page 1 of 7 four were absconding. The trial proceeded against the

remaining eight. The prosecution case is that on 26.11.2001

after getting a consignment of Masoor loaded in a truck at

Silwani for being transported to Indore, Vivek (PW-15)

boarded the truck, which at the relevant time, was allegedly

driven by accused no.5 - Balla @ Farhat. The case of the

prosecution is that Vivek (PW-15) was carrying a cash amount

of Rs.1,00,000/- (Rupees one lakh) in a bag. He was also

carrying 1350 silver coins in two plastic bags. Further, the

case of the prosecution is that at Silwani, one Manoj (PW-4)

handed over a red bag containing currency notes worth

Rs.1,00,000/- (Rupees one lakh) and a list of grocery items

to be handed over to Manohar (PW-5) for purchasing the same

at Indore. It is, however, alleged that after the Truck

reached Gairatganj, accused No.5 - Balla @ Farhat got down

and one Lalmiyan started driving the Truck.

4. In the early morning of 27.11.2001, while the Truck was

passing through Bairagarh, it was overtaken by a white Maruti

Car. The criminals sitting in the car got out and stopped

the truck under the false pretext that the Truck was involved

in an accident. One of them pushed the driver aside and

started driving the Truck himself. The other two persons

entered the truck. They were brandishing weapons. The

Criminal Appeal No.2256 of 2011 Page 2 of 7 allegation is that the offenders picked up all the articles

in the Truck.

5. The case against the three appellants in these two

appeals is of commission of an offence punishable under

Section 411 of the Indian Penal Code, 18601 of dishonestly

receiving stolen property. The allegation against them is

that the stolen currency notes worth Rs.18,000/-, Rs.50,000/-

and Rs.20,000/- respectively were seized from them based on

memoranda under Section 27 of the Indian Evidence Act, 1872

(Exhibit P-11, P-12 and P-13).

6. The Trial Court had convicted the appellants herein for the

offence under Section 120B of the IPC. They were also

convicted for an offence punishable under Section 412 of

the IPC. However, in the appeal so far as accused no.6 -

Habib and accused no.7 - Imran are concerned, the

conviction under Section 120B of the IPC was set aside and

the conviction under Section 412 was converted into Section

411 of the IPC by the High Court of Madhya Pradesh vide the

impugned judgment dated 22.10.2010. In the case of accused

no.5 - Balla @ Farhat, the conviction for the offence under

Section 120B was maintained. However, the conviction under

Section 412 was converted into Section 411 of the IPC by

1. For short, “IPC”

Criminal Appeal No.2256 of 2011 Page 3 of 7 the High Court. Except for accused no.5-Balla, no other

accused was convicted for the offence punishable under

Section 120-B of IPC. One accused was already acquitted by

the Trial Court. The other accused were convicted by the

High Court for the offences punishable under Section 395

and Section 395 read with Section 397 of IPC.

7. With the assistance of the learned counsel appearing

for the parties, we have perused the material on record. It

is not in dispute that PW 6 - Nirmal Kumar and PW 7 - Rakesh

Jain are the only two witnesses, who according to the

prosecution, were the witnesses to the recovery of the

aforesaid cash amounts from the appellants and there is no

other documentary evidence except memoranda at Exhibit P-11,

P-12 and P-13.

8. As regards the conviction of accused no.5 – Balla @

Farhat under Section 120-B of IPC is concerned, we find that

the High Court has set aside the conviction of all six other

accused persons under Section 120B and accused no.5 – Balla @

Farhat is the only accused who has been convicted for the

offence under Section 120-B. The ground on which he was

convicted was that he was the only person who knew about the

availability of huge amounts of money in the Truck. Section

120-A of the IPC defines criminal conspiracy. An agreement by

Criminal Appeal No.2256 of 2011 Page 4 of 7 two or three persons is required to constitute a criminal

conspiracy. There cannot be a conspiracy by only one accused,

and it is necessary for the applicability of Section 120-B of

the IPC that there must be two or more persons agreeing for

the purpose of the conspiracy. This proposition of law finds

support in a decision of a Bench of three Hon’ble Judges of

this Court in Topandas vs. The State of Bombay2. Therefore,

the conviction of accused no.5 – Balla @ Farhat for the

offence under Section 120-B of the IPC cannot be sustained.

9. As far as Nirmal Kumar (PW-6) is concerned, during the

examination-in-chief, he had not deposed that he had seen a

sum of Rs.18,000/- being recovered from accused no.5–Balla @

Farhat. He claims that recovery of a sum of Rs.50,000/- was

made from accused no.7-Imran. He stated that he saw that

Police had come to the house of accused nos.6-Habib and 7-

Imran. However, in the cross-examination, he stated that he

did not enter the house of accused nos.6-Habib and 7-Imran

and in fact, he stated that he was not aware who was staying

in said house. Therefore, this witness has not proved the

recovery of the amount from any of the three accused with

which we are concerned. As far as Rakesh Jain (PW-7) is

concerned, firstly, he has been declared hostile. Secondly,

he has not deposed that the aforesaid amounts were recovered

2. (1955) 2 SCR 881

Criminal Appeal No.2256 of 2011 Page 5 of 7 in his presence from the appellants in these two appeals.

Hence, the prosecution failed to prove the recovery of the

alleged stolen cash from accused nos.5 and 7.

10. Therefore, as far as the appellants herein, namely,

Balla @ Farhat, Habib and Imran are concerned, this is a case

of no evidence. Accordingly, the appeals succeed, and we

pass the following order:

(i) Criminal Appeal No.2257 of 2011 stands abated

as far as appellant no.1 – Habib is concerned.

(ii) Appellant – Balla @ Farhat (accused no.5) in

Criminal Appeal No.2256 of 2011 and appellant

no.2 – Imran (accused no.7) in Criminal Appeal

No.2257 of 2011 are acquitted of the offences

alleged against them. To that extent, the

impugned judgments are modified. Both the

appellants - Balla @ Farhat and Imran are on

bail. Therefore, their bail bonds stand

cancelled.

Criminal Appeal No.2256 of 2011 Page 6 of 7

11. The appeals are allowed in the above terms.

12. Pending application(s), if any, stands disposed of.

………………………………….J. (ABHAY S. OKA)

……………………………………J. (SANJAY KAROL)

New Delhi;

August 10, 2023

Criminal Appeal No.2256 of 2011 Page 7 of 7