Bilal Hajar @ Abdul Hameed vs State Rep. By The Inspector Of Police

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1305 OF 2008

Bilal Hajar @ Abdul Hameed ….Appellant(s)

VERSUS

State Rep. by the Inspector of Police …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is directed against the final

judgment and order dated 08.11.2006 passed by

the High Court of Madras in Criminal Appeal

No.1200 of 2003 whereby the High Court dismissed

Signature Not Verified the appeal filed by appellant herein. Digitally signed by ANITA MALHOTRA Date: 2018.10.10 16:45:45 IST Reason: 2

2. In order to appreciate the issues involved in

this appeal, it is necessary to set out the facts of the

case in detail hereinbelow.

3. The case of the prosecution may be briefly

stated as follows.

4. In all nine persons were tried for commission

of various offences in Session Trial No.239 of 2000

by the Additional Court of Sessions (Fast Track

No.111) Coimbatore.

5. The details of the offences under the Indian

Penal Code (for short “IPC”) for which the accused

were tried are set out herein below:

(1) A ­ 1 to A­ 9 Section 120­B, IPC

(2) A­1 to A­ 5 Section 148, IPC

(3) A­ 1 to A­ 5 Section 302, IPC

(4) A­1 Section 332, IPC 3

6. On 19th August 1991, some posters were

found pasted on the walls of public streets in the

city of Coimbatore. These posters contained threats

that seven persons belonging to a particular

community would be killed. One person, out of the

seven named person, was “Siva Kumar @ Siva”.

7. Siva on coming to know of his name being

published in the poster scolded in filthy language

the members of a particular community in a public

meeting held on 30.08.1991, as according to him,

the members of that community had pasted such

posters wherein he and six others named therein

were given threat of murder.

8. On 01.09.1991 between 2.30 p.m. to 3.30

p.m., all the nine accused (A­1 to A­9) assembled in

the house of the appellant (A­6) and they hatched a

criminal conspiracy to murder Siva. In furtherance

of the criminal conspiracy, on 05.09.1991, around 4

7.45 a.m. accused (A­1 to A­5) along with one

absconded accused armed with deadly weapons

assembled at Kovai Mill Road, Coimbatore and

accused (A­1 and A­3) attacked Siva with knife, who

was passing through the road. Accused (A­1) also

stabbed one Constable Chinnathambi (PW­1) with

knife, who had come to the spot. Injured Siva was

taken to the nearest hospital where he succumbed

to injuries and was declared dead.

9. This incident led to arrests of nine accused.

Investigation was carried out and after completing

it, the charge­sheet was filed against the nine

accused and they were put to trial for commission of

various offences as detailed above. By order dated

29.07.2003, the Sessions Judge convicted the

accused persons as under:

“The punishment of life imprisonment to accused Nos.1 to 9 under Section 120(b)(1) and a fine of Rs.10,00/­ is imposed, failing which 1 year RI have to undergo. For accused Nos. 1 to 4, life imprisonment under Section 302 of IPC and a fine of Rs.25,000/­ 5

as fine, failing which 1 year RI under Sections 148 of IPC to accused Nos.1 to 4 should undergo the RI in the same period. Under Section 428 of Criminal Procedure Code, the period of jail while in the trail period may be deducted. Rs.1,00,000/­ is to be given to the ward of the Siva as compensation from the total fine of Rs.1,90,000/­ under Section 357 of Cr.P.C.”

10. The convicted accused felt aggrieved and filed

their respective criminal appeals, some jointly and

some separately in the High Court of Madras

questioning therein the legality and correctness of

their respective convictions and sentences awarded

to them.

11. By a common impugned order, the High Court

dismissed the appeals of the accused, except that of

accused (A­9) who was acquitted. The conviction of

accused (A­2) under Section 120B was set aside.

12. The accused (A­6) alone felt aggrieved by his

conviction and award of sentences and he has filed

the present appeal by way of special leave to appeal

in this Court. So far as other accused are 6

concerned, they did not file any appeal in this Court

against their respective conviction/sentences. Their

conviction and sentences have, therefore, become

final. They are undergoing their jail sentences as

awarded to each of them.

13. So the only question involved in this appeal is

whether the Courts below were justified in holding

the appellant (A­6) guilty for commission of only the

offence under Section 120­B IPC.

14. It is pertinent to mention here that so far as

the appellant (A­6) is concerned, he was prosecuted

and eventually convicted for an offence punishable

under Section 120­B, IPC and was accordingly

awarded life sentence. In other words, the appellant

(A­6) was charged with the offence punishable

under Section 120­B, IPC and was convicted as

such.

7

15. Heard Mr. K.K. Mani, learned counsel for the

appellant and Mr. M. Yogesh Kanna, learned

counsel for the respondent­State.

16. Learned counsel Mr. K.K. Mani appearing for

the appellant while assailing the legality and

correctness of the impugned order contended that

the appellant's conviction is based only on the

testimony of two witnesses, namely PW­3 and PW­4.

17. According to learned counsel, these two

witnesses are the chance witnesses set up by the

prosecution and therefore the two Courts below

erred in placing reliance on their testimony. In his

submission, both these witnesses should have been

disbelieved.

18. Learned counsel then elaborated his

submission by reading their testimony and pointed

out inconsistencies and contradictions in their

statements on certain issues, which according to

him, render their statement wholly unreliable. 8

19. It is basically these submissions the learned

counsel urged by appreciating their evidence and

contended that so far as appellant (A­6) is

concerned, once it is established that he was not a

part of the criminal conspiracy to kill Siva on

05.09.1991, which according to the prosecution was

hatched on 01.09.1991 in his house, the appellant

was entitled for a clean acquittal.

20. It was urged that it is an admitted case set up

by the prosecution which found proved also that the

appellant was neither present and nor involved in

actual commission of crime on 05.09.1991 in killing

Siva but it was accused (A­1 to A­5) who were

involved in murder of Siva on 05.09.1991. It is for

this reason, the appellant cannot be held

responsible for commission of murder of Siva, he

being not a member of any criminal conspiracy to

kill him.

9

21. In reply, learned counsel for the respondent

(State), supported the impugned order, which,

according to him, rightly upheld the order of the

Session court and supported the reasoning and the

conclusion contained therein and contended that no

case is made out to reverse the concurrent finding

of the two courts below. It was urged that

reasoning and the conclusion is based on proper

appreciation of evidence and does not call for any

interference in this appeal.

22. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no force in the submissions of the learned

counsel for the appellant (A­6).

23. At the out set, we consider it apposite to state

that when the two Courts below in their respective

jurisdiction has appreciated the entire ocular

evidence, then this Court would be very slow in

exercise of its appellate jurisdiction under Article 10

136 of the Constitution to appreciate the evidence

afresh unless the appellant is able to point out that

the concurrent finding of two courts below is wholly

perverse or is recorded without any evidence or is

recorded by misreading or ignoring the material

evidence.

24. We consider it apposite to recall the apt words

of Justice Fazal Ali­a learned Judge while speaking

for the Bench in the case of Lachman Singh vs.

State (AIR 1952 SC 167 at page 169) when his

Lordship observed “It is sufficient to say that it is not

the function of this Court to reassess the evidence

and an argument on a point of fact which did not

prevail with the Courts below cannot avail the

appellants in this Court.”

25. Despite this, we felt that since the leave has

been granted to the appellant to file this appeal, it is

just and proper to peruse the evidence and 11

particularly that of PW­3 and PW­4 with a view to

find out as to whether the courts below were right in

placing reliance on their testimony to sustain the

appellant's conviction under Section 120­B, IPC.

26. Before we examine the evidence of PW­3 and

PW­4, it is apposite to take note of the essential

ingredients of Section 120 ­A and Section 120­B,

IPC under which the appellant (A­6) was prosecuted

and eventually convicted.

27. The expression “criminal conspiracy” is defined

in Section 120­A, IPC. It says that when two or more

persons agree or cause to be done an illegal act or

an act, which is not illegal by illegal means, such an

agreement is designated a “criminal conspiracy”. It

then provides an exception to the effect 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 12

thereof. The explanation appended to the Section

clarifies that it is immaterial whether the illegal act

is the ultimate object of such agreement or is merely

incidental to that object.

28. Section 120­B, IPC provides a punishment for

committing an offence of criminal conspiracy. It

says that whoever is a party to a criminal

conspiracy to commit an offence punishable with

death, imprisonment for life, or rigorous

imprisonment for a term of two years or upwards

shall be punished in the same manner as if he had

abetted such offence provided there is no express

provision made in the Code for punishment of such

conspiracy.

29. Sub­section (2) of Section 120­B, IPC, however,

provides that a person who is a party to a criminal

conspiracy other than a criminal conspiracy to

commit an offence punishable as aforesaid shall be 13

punished with an imprisonment of either for a term

not exceeding six months or with fine or both.

30. Reading of Section 120­A and Section 120­B,

IPC makes it clear that an offence of “criminal

conspiracy” is a separate and distinct offence.

Therefore, in order to constitute a criminal

conspiracy and to attract its rigor, two factors must

be present in the case on facts: first, involvement of

more than one person and second, an agreement

between/among such persons to do or causing to be

done an illegal act or an act which is not illegal but

is done or causing to be done by illegal means.

31. The expression “criminal conspiracy” was aptly

explained by this Court in a case reported in Major

E.G. Barsay vs. State of Bombay (1962) 2 SCR

195. Learned Judge Subba Rao (as His Lordship

then was and later became CJI) speaking for the

Bench in his distinctive style of writing said: 14

“31…….. 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 act agreed 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.”

32. Therefore, in order to constitute a conspiracy,

meeting of mind of two or more persons to do an

illegal act or an act by illegal means is a must. In

other words, it is sine qua non for invoking the plea

of conspiracy against the accused. However, it is

not necessary that all the conspirators must know

each and every detail of the conspiracy, which is

being hatched and nor it is necessary to prove their

active part/role in such meeting.

33. In other words, their presence and

participation in such meeting alone is sufficient. It

is well known that a criminal conspiracy is always 15

hatched in secrecy and is never an open affair to

anyone much less to public at large.

34. It is for this reason, its existence coupled with

the object for which it was hatched has to be

gathered on the basis of circumstantial evidence,

such as conduct of the conspirators, the chain of

circumstances leading to holding of such meeting

till the commission of offence by applying the

principle applicable for appreciating the

circumstantial evidence for holding the accused

guilty for commission of an offence. (See also

Baldev Singh vs. State of Punjab [2009 (6) SCC

564].

35. Keeping in view the aforesaid principle of law

which is consistently followed and reiterated by this

Court in several cases, the issue involved in this

case is required to be examined with a view to find

out as to whether appellant (A­6) was a member of a

criminal conspiracy which was hatched on 16

01.09.1991 to kill Siva on 05.09.1991 or in other

words whether there is any evidence to sustain

appellant's conviction under Section 120­B, IPC

and, if so, whether the evidence adduced by the

prosecution is in conformity with the parameters

laid down by this Court to prove the guilt of the

appellant beyond reasonable doubt.

36. It has come in evidence that starting point of

the incident leading to the death of Siva gained

momentum due to pasting of posters on public walls

in the city by the members of one community

mentioning therein the name of “Siva” with six

others that these seven named persons would be

killed. This prima facie indicated that Siva and six

others could be a soft target for their elimination by

the members of a particular community in coming

days. Another factor, which added to the

occurrence in question was filthy

language/utterances of Siva in one public meeting 17

held by some workers of one party soon thereafter

on 30.08.1991.

37. Perusal of evidence of PW­3 and PW­4 would

go to show that PW­4 was running his small tea

stall under a tree near appellant's house. It was

around 70 feet away from the house and one could

see the appellant's house from the tea stall. PW­3

was working as a tea boy in PW­4's tea stall on daily

wages during the relevant time.

38. PW­3 said in his deposition that on

01.09.1991 around 2.30 p.m., he saw appellant (A­

6), Basha (A­8) and Sbeyar (A­9) getting down from

the car (van) and entering in appellant's house.

After some time, (A­8­Basha) came to the tea stall

and asked him (PW­3) to bring 10 cups of tea to the

appellant's house. PW­3 on his part then told PW­4

to prepare and give him 10 cups of tea, which PW­3

brought to the appellant's house and served

everyone sitting in the room. He then waited for 18

some time to collect the empty teacups when he

heard appellant (A­6) saying to others present there

that: “whatever might be the cost, we should kill Siva

within 10 days”. He said that on appellant saying

this, another person­Basha (A­8) who had come to

the tea stall for ordering tea said “in no case we

should go back after taking the initial step and

finishing Siva”. On this A­7 (Subahier) said

touching A­1 (Jahir Husain) sitting next to him that

he i.e. (A­1) would be the fittest one to do the job.

At this time, (A­8 Basha) saw PW­3 who was

standing there and asked him as to why he (PW­3)

is standing here and asked him to go out of the

room. When PW­3 was leaving the place, he heard

the appellant asking others as to whether they

would murder Siva. All in reply to appellant's query

said in a loud voice, as if, they were taking some

kind of oath that they would kill Siva. PW­3 then

said that on return to tea stall, he told to his boss 19

(PW­4) what he saw and heard in appellant's house

to which (PW­4) said to him that he should ignore.

PW­4 then asked him to go back after some time to

collect the empty cups and bring sale money for 10

cups of tea. PW­3 then went to the appellant’s

house after ten to fifteen minutes when the persons

assembled there paid him Rs.8 and said to retain

the balance by way of tip for him. He then said that

after about 4/5 days or so, he heard that Siva is

murdered by stab injuries so he went to see him in

Government hospital.

39. More or less on the same lines of (PW­3), PW­4

has also deposed about the incident in his

deposition. In other words, PW­4 has corroborated

the testimony of PW­3 on all material events and

hence we do not wish to repeat his deposition in

detail.

20

40. Having scanned the testimony of PW­3 and

PW­4, we find no good ground to discard their

testimony. In our opinion, their testimony is found

natural, consistent and does not suffer from any

contradictions much less major contradictions so as

to brush aside as being wholly unreliable. The two

courts below, in our view, therefore rightly relied on

their testimony to sustain appellant’s conviction

under Section 120­B, IPC.

41. In our considered opinion, the test laid down

by this Court as to how a case under Section 120­A,

IPC read with Section 120­B, IPC is required to be

made out by the prosecution with the aid of

evidence is found proved by the prosecution beyond

reasonable doubt in this case and this we say for

following reasons.

42. First, there was adequate foundation laid for

holding a meeting on 01.09.1991 by the accused 21

and the said foundation was an incident of pasting

of posters on 19.08.1991 in public places all over

the city and second, a public meeting held on

30.08.1991 in which Siva (deceased) uttered filthy

language against the members of the community to

which the accused belonged. These two facts did

constitute a foundation for the commission of

offence in question and they were duly proved with

adequate evidence by the prosecution.

43. Second, the evidence of PW­3 and PW­4 has

proved the factum of holding a meeting in

appellant’s house on 01.09.1991 with other accused

wherein a decision was taken to kill/eliminate Siva

within 10 days.

44. Third, the presence of PW­3 in appellant's

house while serving a tea to all the accused is

proved by the evidence of PW­3 and PW­4. Similarly

the evidence of PW­3 and PW­4 further proved the

exchange of talk between the accused confirming 22

that they will kill/eliminate Siva, the fact that Siva

was killed/eliminated after five days after the

meeting was held and lastly, his death was proved

as homicidal

45. In our considered opinion, the complicity of

the appellant in conceiving a plan to kill/eliminate

Siva was therefore duly proved with the evidence

adduced by the prosecution. Indeed, it was the

appellant who took the lead to kill/eliminate Siva

and with that end in view first he held a meeting in

his house with all the other accused on 01.09.1991

and pursuant thereto got it accomplished through

accused (A­1 to A­5) on 05.09.1991 when accused

(A­1 & A­3) caused fatal stab injury with knife to

Siva resulting in his homicidal death.

46. In our opinion, it was not necessary for the

appellant to remain present at the time of actual

commission of the offence on 05.09.1991 with

accused (A­1 to A­5) for killing/eliminating Siva. 23

The appellant could be held guilty for commission of

the same offence and sentence, which was awarded

to accused (A­1 to A­5) as if, he had abetted the

commission of the offence of murder as provided

under Section 120­B, IPC.

47. We are not impressed by the submission of the

learned counsel for the appellant (A­6) when he

tried to point out three statements from the

evidence of PW­3 and PW­4 which according to him

were contradictory to each other rendering their

testimony unreliable.

48. The first one was that PW­3 said that “he

alone” went to the hospital to see the dead body of

Siva whereas PW­4 said that “We” went to the

hospital to see the dead body of Siva.

49. In our opinion, there is no contradiction in

their version on the issue of visit to the hospital.

Whether both went together or went individually

with some time gap between their visits is hardly of 24

any significance so as to discard their entire

testimony.

50. The second instance which was pointed out by

the learned counsel for the appellant was that why

should PW­3 go to see the dead body of Siva in the

hospital when he was in no way connected with him

and nor was he connected with the accused. This

fact according to learned counsel appears unnatural

and thus renders PW­3 testimony unreliable.

51. In our view, the second instance also has no

substance. It is for the reason that the appellant (A­

6) had an opportunity to cross­examine PW­3 and

PW­4 on all the so­called contradictions to the two

witnesses but he failed to avail of this opportunity

by not cross­examining PW­3 and PW­4. On the

other hand, the appellant adopted the cross

examination done by other accused on PW­3 and

PW­4 and gave up his right of cross­examination to

these two witnesses. In this view of the matter; he 25

cannot now be permitted to find fault in the

evidence of PW­3 and PW­4 and rely upon some

contradictions which otherwise do not show any

contradiction much less major one affecting their

testimony.

52. In any event, the second instance even

otherwise has no substance for the simple reason

that PW­3 and PW­4 were the only persons who

were aware of the meeting held on 01.09.1991 at

the appellant’s house where PW­3 had heard the

plan for elimination of Siva and on his return from

appellant's house, he told to PW­4 of the said

incident. In these circumstances and with this

background, if PW­3 went to the hospital, which

was very near to the tea stall, there is nothing

unnatural in his visit.

53. Yet, another last circumstance pointed out by

the learned counsel for the appellant was that PW­3

joined the services of PW­4 on 01.05.1991 and left 26

within five days. This according to learned counsel

shows that he was a chance witness. We do not

agree.

54. PW­3 was working as a daily wager on

payment of Rs.7/­ per day with PW­4. In these

circumstances, if PW­3 worked for one week or so

and discontinued thereafter would not mean that he

did not work at all with PW­4. After all, this was

not an appointment in some systematic organization

but was with one individual in his tea stall running

under a tree. There is, therefore, nothing by which

one could conclude that PW­3 did not work at all

with PW­4 during those five days. There might be

myriad reasons for PW­3 to leave this job. It is more

so when it was proved that PW­4 was running his

teashop on that spot for quite a long time and

therefore was conversant with the locality and

passersby.

27

55. It is also not the case of appellant that PW­3

had any previous enmity with any of the accused

and with that end in view, he stepped in witness

box to speak against them. PW­3 was a young boy

aged around 17 years with no criminal background.

As mentioned above, all this could be put to PW­3

and PW­4 in their cross examination by the

appellant but he did not choose to do so and gave

up his right to cross examine these witnesses.

56. In the light of detailed foregoing discussion, we

are of the considered opinion that the prosecution

was able to prove beyond all reasonable doubt with

the aid of evidence that the appellant (A­6) was one

of the active members of the criminal conspiracy

along with other accused and hatched the plan in

his house in the meeting which was held on

01.09.1991 to kill/eliminate Siva and in furtherance

thereof accused (A­1 to A­5) successfully

killed/eliminated Siva on 05.09.1991 by causing 28

Siva stab injuries with the aid of knife resulting in

his homicidal death. The appellant's conviction and

award of life sentence as prescribed under Section

302 read with Section 120­B, IPC was, therefore,

rightly held made out along with other accused

persons by the two courts below. We, therefore,

concur with their view and accordingly uphold it.

57. We may only mention that it was not the case

of the appellant and nor was urged also that his

case falls under Section 120­B (2), IPC and therefore

he be awarded less sentence as prescribed therein.

58. In view of the foregoing discussion, we find no

merit in this appeal. The appeal thus fails and is

accordingly dismissed.

…...……..................................J. [ABHAY MANOHAR SAPRE]

………...................................J. [INDU MALHOTRA] New Delhi;

October 10, 2018